5^05* 
 
 116.- 1 
 
 (Jornpll ICaui ^rlynnl Blibraty 
 
KF sosTse'ilzT'""'""-"'"'^ 
 
 ^l*" Jbooli on the law of persons and domes 
 
 3 1924 018 800 189 
 
m 
 
 Cornell University 
 Library 
 
 The original of tiiis bool< 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/cu31 92401 88001 89 
 
Of 
 
 Elementary Treatises on all the Principal Subjects of the Law 
 
 The special features of these books are as follows: 
 
 1. A succinct statement of leading principles In black-letter type. 
 
 2. A more extended commentary, elucidating the principles. 
 
 3. Notes and authorities. 
 
 Published in regular octavo form, and bound in buckram. 
 
 Barrows on Negligence. 
 
 Black on Construction and Interpretation of Laws (2d Ed.). 
 
 Black on Constitutional Law (3d Ed.). 
 
 Black on Judicial Precedents. 
 
 Bogert on Trusts. 
 
 Burdick on Real Property. 
 
 Chapin on Torts. 
 
 Chllds on Suretyship and Guaranty. 
 
 Clark on Contracts (3d Ed.). 
 
 Clark on Corporations (3d Ed.). 
 
 Clark on Criminal Law (3d Ed.). 
 
 Clark on Criminal Procedure (2d Ed.). 
 
 Cooley on Municipal Corporations. 
 
 Costigan on American Mining Law. 
 
 Croswell on Executors and Administrators. 
 
 Dobie on Bailments and Carriers. 
 
 Eaton on Equity. 
 
 Gardner on Wills (2d. Ed.). 
 
 Gilmore on Partnership. 
 
 Hale on Damages (2d Ed.). 
 
 Hughes on Admiralty (2d Ed.). 
 
 Hughes on Federal Jurisdiction and Procedure (2d Ed.). 
 
 McKelvey on Evidence (2d Ed.). 
 
 Norton on Bills and Notes (4th Ed.). 
 
 Shipman on Common-Law Pleading (2d Ed.). 
 
 Shipman on Equity Pleading. 
 
 Smith's Elementary Law. • 
 
 Tiffany on Agency. 
 
 Tiffany on Banks and Banking. 
 
 Tiffany on Persons and Domestic Relations (Sd Ed.). 
 
 Tiffany on Sales' (2d Ed.). 
 
 Vance on Insurance. 
 
 Wilson on International Law. 
 
 In preparation: Handbooks of the law on other subjects to be an- 
 nounced later. 
 
 Published and for sale by 
 WEST FUBI.ISHING CO., ST. PAUL, MINN. 
 
 C11517— h 
 
HANDBOOK 
 
 ON THE LAW OF 
 
 PERSONS AND DOMESTIC 
 RELATIONS 
 
 -. ^ ^ ^,^^1*.^ 
 
 ye-'' 
 By WALTER C. TIFFANY 
 
 THIRD EDITION 
 
 By ROGER W. COOLEY, LL.M. 
 
 AUTHOR OF "briefs ON THE LAW OF INSURANCE," 
 
 PROFESSOR OF LAW, SCHOOL OF JURISPRUDENCE OF AMERICAN UNIVERSITY 
 
 AND LEGAL ADVISER UNITED STATES VETERANS' BUREAU 
 
 ST. PAUL, MINN. 
 WEST PUBLISHING CO. 
 
 "1921 
 
ooptbight, 1896, 
 
 'by 
 
 WEST PUBLISHING COMPANY 
 
 OOPTKIGHT, 1909, 
 BT 
 
 WEST PUBLISHING COMPANY 
 
 COPYBIGHT, 1921, 
 BT 
 
 WEST PUBLISHING COMPANY 
 [TUT.P.& D,Rkl.(3d Ed.)] 
 
X^*'':--/;-. 
 
 PREFACE TO THIRD EDITION 
 
 In preparing the third editionvQf.^t^iis^t^oo'k the principal work of the 
 editor has been to incorporate in the notes the later decisions. Though 
 there have been here and there some slight alterations in the arrange- 
 ment of the text, there has been but little departure from the plan 
 adopted by Mr. Tiffany in the first edition and followed by the present 
 editor in the second edition. The most noteworthy changes in the text 
 are to be found in the chapter on Marriage and the chapter on Legit- 
 imacy and Adoption of Children. Though an important change in 
 the relation of master and servant has been brought about by the 
 passage of Workmen's Compensation Acts in a majority of the states, 
 the scope of this book does not permit of any extended discussion of 
 those statutes, and the editor has felt constrained to limit his treatment 
 of that phase of the law to a few paragraphs added to the section deal- 
 ing with the master's liability for injuries to the servant. 
 
 Roger W. Cooi<ey. 
 United States Vetebans' Btjeeau, 
 
 Washington, D. C, September 1, 1921. 
 
 (V) 
 
PREFACE TO SECOND EDITION 
 
 In the thirteen years that have elapsed since the first edition of this 
 book appeared, there have been very few changes in the law of Per- 
 sons and Domestic Relations. Even in the law of Master and Servant 
 there have been no important departures from the doctrines laid down 
 many years ago. The only branch of the law in which any marked 
 changes may be observed is that branch which deals with the prop- 
 erty and contract rights of married women, and these changes are 
 purely statutory. Mr. Tiffany's treatment of the genera! subject was 
 so excellent and has called forth so little criticism that, in the prep- 
 aration of the second edition, very few changes have been made in 
 the text. Sorhe additions have been made for the purpose of round- 
 ing out the subject, and in a few instances there has been an alteration 
 of the arrangement. The only material additions are in that portion 
 of the work dealing with the separate property of married women and 
 the addition of a section relating to the extraterritorial effect of di- 
 vorce — a subject that has come into prominence in recent years. The 
 principal work of the revisor has been to incorporate in the notes the 
 later decisions. RoGEJR W. Cooley. 
 
 St. Paul, Minn., May 1, 1909. 
 
 (vi) 
 
PREFACE TO FIRST EDITION 
 
 In this book the same general plan has been followed as that adopted 
 in the previous books of the Hornbook Series. A concise statement 
 of the law precedes each subdivision of the subject, and is followed 
 and illustrated by a fuller treatment in the subsidiary text. 
 
 The common law of the domestic relations, particularly the law of 
 husband and wife, has been to a great extent modified by statutes, and 
 in some states almost entirely superseded. These statutory changes 
 have been by no means uniform, and there are prpbably few branches 
 of the law in which there is to-day less uniformity. In a book of this 
 scope it would be impossible to give in detail the law of each state as 
 modified by statute. Since the common law is still in force except- 
 ing so far as changed by statute, a knowledge of the common, as well 
 as of the statute, law, is necessary, in order to determine what the law 
 is to-day. The plan followed has been, therefore, to state the com- 
 mon-law rule, and then the substance of such statutes as have been 
 generally adopted, with the interpretation of such enactments by 
 the courts, leaving it to the reader to ascertain what statutes are pe- 
 culiar to his own state. 
 
 The original scope of this book was limited to the subjects of Hus- 
 band and Wife, Parent and Child, Infancy, and Guardian and Ward ; n 
 hut it has been thought advisable to add Master and Servant, Persons 
 Non Compotes Mentis, and Aliens, and these additions are the work 
 of Mr. William L,. Clark, Jr. • I am further under great obligations to 
 Mr. Clark for valuable assistance in other parts of the book. 
 
 W. C. T. 
 Minneapolis, Minn., Sept. 5, 1896. 
 
 (vii)* 
 
TABLE OF CONTENTS 
 
 PART I 
 HUSBAND AND WIFE 
 
 CHAPTER I 
 MARRIAGE 
 
 Section 
 
 Page 
 
 l-3» Definition of Marriage 2-6 
 
 ■!» Essentials of Marriage — Classiflcation 6, 7 
 
 5r Mutual Consent t, !j 
 
 6-10> Reality of Consent 9-17 
 
 7.» Fraud 9_17 
 
 8." Duress ► 9-17 
 
 9i Mistake 9-17 
 
 10.* Effect of Fraud, Duress, or Mistake 9-17 
 
 11. Mental Capacity of the Parties 17 
 
 12. Insanity and Intoxication 17-20 
 
 13. Nonage 21-25 
 
 14. Capacity of Parties Otherwise than Mentally 25 
 
 15. Relationship 26-28 
 
 16. Physical Incapacity 29, 30 
 
 17. Civil Conditions — Race, etc 30,31 
 
 18. Prior Marriage i §1-36 
 
 19-21. Formalities in Celebration — Informal Marriages 36-55 
 
 22-26. Annulment and Avoidance of Marriages . . . ., 55-60 
 
 27. Power of Legislature to Validate Marriage 60, 61 
 
 28. Presumption and Burden of Proof 61-65 
 
 29. Construction of Statutes 65-67 
 
 30. Conflict of Laws 67-74 
 
 CHAPTER II 
 RIGHTS AND DUTIES INCIDENT TO COVERTURE IN GENERAL 
 
 31. Right to Cohabitation and Intercourse 75-78 
 
 32-33. Restraint and Correction of Wife 78-80 
 
 54-35. Support of Wife and Family 80-88 
 
 36. Right to Determine Family Domicile S8, 89 
 
 37. Crimes of Married Women !)0-92 
 
 38. Crimes as between Husband and Wife 93, 94 
 
 39-42. Torts of Married Women 95-104 
 
 TIFF.P.& D.RBI,. (3d Ed.) (ix) 
 
TABLE OF CONTENTS 
 Section Page 
 
 43. Torts as between Husband and Wife ., 105-107 
 
 44. Torts Against Married Women / 107-112 
 
 45-46. Actions for Enticing, Harboring, or Alienation of Affection 113-119 
 
 47. Action for Criminal Conversation 120-123 
 
 CHAPTER III 
 
 RIGHTS IN PROPERTY AS AFFECTED BY,' COVERTURE 
 
 48. Wife's Earnings 124^128 
 
 49. Wife's Personalty in Possession 12S-1.S1 
 
 50-51. Wife's Choses in Action 131-137 
 
 52. Administration of Wife's Estate 138, 139 
 
 53. Wife's Chattels Real 139 
 
 54. Wife's Estates of Inheritance-^Curtesy 140-142 
 
 55. Wife's Estates for Life 142, 143 
 
 56-57. Modification of Common-Law Rules 143, 144 
 
 58. Wife's Rights in Husband's Property — Dower and Thirds. . 144,145 
 
 59. Estates by the Entirety 146-149 
 
 60. Community Property 150-155 
 
 CHAPTER IV 
 
 CONTRACTS, CONVEYANCES, ETC., AND QUASI CONTRACTUAL 
 OBLIGATIONS 
 
 61. Contracts of Wife 156-161 
 
 62, 63. Wife as a Sole Trader 162-164 
 
 64-67. Conveyances, Sales, and Gifts by Wife 164-167 
 
 68. Contracts of Husband 16& 
 
 69, 70. Contracts by Wife as Husband's Agent 168-181 
 
 71. Husband's Liability for Wife's Funeral Expenses 182, 183 
 
 72. Husband's Liability for Wife's Antenuptial Debts 183,184 
 
 CHAPTER V 
 
 WIFE'S EQUITABLE AND STATUTORY SEPARATE ESTATE 
 
 73. Equitable Separate Estate 185-187 
 
 74. .Tus Disponendi 187, 18S 
 
 75-77. Power to Charge by Contract 189-192 
 
 78. Statutory Separate Estate 192-202 
 
 79. J'us Disponendi 202, 203 
 
 80-82, Power to Charge by Contract 203-213 
 
 CHAPTER VI 
 
 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS 
 
 83. Antenuptial Settlements 214-21& 
 
 84. Marriage as a Consideration 218-222 
 
 85. Reasonableness of Provision for Wife 223-225 
 
Section 
 
 87. 
 88-90. 
 91-92. 
 
 TABLE OF CONTENTS 
 
 Kt 
 
 Page 
 
 Settlements Based on Antenuptial Agreements 225, 226 
 
 Statute of Frauds 22(>^228 
 
 Postnuptial Settlements 229-234 
 
 As against Creditors and Purchasers 235-237 
 
 CHAPTER VII 
 SEPARATION AND DIVORCE 
 
 93-95. Agreements of Separation -238-241 
 
 96. Divorce or Judicial Separation 241-243 
 
 97, 98. Jurisdiction to Grant Divorce 243-247 
 
 99-104. Grounds for Divorce 247-273 
 
 99. Adultery 247, 248 
 
 100-102. Cruelty 249-256 
 
 103. Desertion 257-266 
 
 104. Miscellaneous Other Grounds '...) 267-273 
 
 105-109. Defenses in Suits for Divorce 273-287 
 
 105. Connivance 273-275 
 
 106. Collusion 276^277 
 
 107. 108. Condonation 277-281 
 
 109. Recrimination ., 281-287 
 
 110. Extraterritorial Effect of Divorce 287-291 
 
 111. Legislative Divorce 291, 292 
 
 PART n 
 
 PARENT AND CHILD 
 
 CHAPTER VIII 
 LEGITIMACY, ILLEGITIMACY, AND ADOPTION 
 
 112-113. Legitimacy of Children .'. 293-304 
 
 114. Status of Illegitimate Children 304-309 
 
 115. Adoption of Children 310-320 
 
 CHAPTER IX 
 
 DUTIES AND LIABILITIES OF PARENTS 
 
 116. Parent's Duty to Maintain Child 321-329 
 
 117. Maintenance In Equity — ^Allowance Out of Child's Estate.. 329-331 
 
 118. Contracts by Child as Parent's Agent 331-333 
 
 119. Parent's Duty to Protect Child 333, 334 
 
 120. Parent's Duty to Educate Child 334 
 
 121. Parent's Liability for Child's Torts 334-338 
 
 122. Parent's Liability for Child's Crimes 338 
 
xu 
 
 TABLE OF CONTENTS 
 
 CHAPTER X 
 
 RIGHTS OF PARENTS AND OF CHILDREN 
 
 Section Page 
 
 123. Rights of Parents in General 339 
 
 124. Parent's Right to Correct Child 340-343 
 
 125-126. Custody of Children 343-354 
 
 127. Parent's Right to Child's Services and Earnings 354-357 
 
 128r-131. Emancipation of Children 1)58-365 
 
 132-134. Action by Parent for Injuries to Child 365-378 
 
 135-137. Action by Parent for Seduction or Debauching of Daughter 378-384 
 
 138, 139. Action by Parent for Abducting, Enticing, or Harboring 
 
 Child 384-386 
 
 140. Parent's Rights in Child's Property 386, 387 
 
 141. Gifts, Conveyances, and Contracts between Parent and 
 
 Child 387-390 
 
 142-143. Advancements 390, 391 
 
 144. Duty of Child to Support Parents 392 
 
 145. Domicile of Child 392.393 
 
 PART III 
 GUARDIAN AND WARD 
 
 CHAPTER XI 
 
 GUARDIANS DEFINED— SELECTION AND APPOINTMENT 
 
 146-147. In General 394, 395 
 
 148. Natural Guardians 395, 396 
 
 149. Guardians in Socage 396, 397 
 
 150. Testamentary Guardians 398, 399 
 
 151. Chancery Guardians ■. 399, 400 
 
 152. Statute Guardians 400, 401 
 
 li)3. Quasi Guardians, or Guardians by Estoppel 401 
 
 154. Guardians of Persons Non Compotes Mentis 402 
 
 155. Guardians Ad Litem 402 
 
 156-158. Selection and Appointment of Guardians by Court 403-406 
 
 159. Jurisdiction to Appoint Guardian 406, 407 
 
 CHAPTER XII 
 RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS 
 
 160. Guardian's Right to Custody of Ward 408, 409 
 
 161. Guardian's Right to Ward's Services 409, 410 
 
 162-166. Maintenance of Ward 410-416 
 
TABLE OP CONTENTS 
 
 XllI 
 
 Section Page 
 
 163. Contracts 410-414 
 
 164. Reimbursement for Support 410-414 
 
 165-166. Use of Principal of Estate 414-116 
 
 167. Change of Ward's Domicile by Guardian 416-418 
 
 168-179. Management of Ward's Estate 41S-441 
 
 168-169. Guardianship as a Trust 418-424 
 
 170. Acts in Excess of Authority 424, 42!> 
 
 171. Degree of Care Required 425-427 
 
 172. Collection and Protection of Property— Actions 427-431 
 
 173-174. Investments 431-435 
 
 175. Care of Real Estate 436, 437 
 
 176-177. Sale of Real Estate 437-440 
 
 178. Sale of Personal Property 440 
 
 179. Power to Execute Instruments 441 
 
 ISO. Foreign Guardians 441, 442 
 
 181-183. Inventory and Accounts 443-445 
 
 184. Compensation of Guardian 445, 446 
 
 185. Settlements Out of Court 446-449 
 
 186. Gifts from Ward to Guardian 446-449 
 
 CHAPTER XIII 
 
 TERMINATION OF GUARDIANSHIP— ENFORCING GUARDIAN'S 
 
 LIABILITY 
 
 187. Termination of Guardianship . .' 450-455 
 
 188. Enforcement of Guardian's Liability 455, 456 
 
 189-191. Guardians' Bonds 456-459 
 
 PART IV 
 
 INFANTS. PERSONS NON COMPOTES MENTIS, 
 AND ALIENS 
 
 CHAPTER XIV 
 
 INFANTS 
 
 192. Infancy Defined 460,461 
 
 193. Custody and Protection 461-464 
 
 194t-198. Privileges and Disabilities 465-471 
 
 194. In General 465-171 
 
 195. Capacity to Hold Office 465-471 
 
 196. Capacity to Make Will 465-471 
 
 197. Capacity to Sue and Defend 465-471 
 
 198. Infants as Witnesses 465-471 
 
 199-217. Contracts of Infants i 471-518 
 
XIV 
 
 TABLE OP CONTENTS 
 
 Section Page 
 
 199. In General 471-479 
 
 200-203. Liability for Necessaries 480-488 
 
 204. Ratification and Disaffirmance 488-491 
 
 205-207. Time of Avoidance t 491-495 
 
 208-209. Who may Avoid Contract 495-497 
 
 210-211. What Constitutes Ratification 497-505 
 
 212. What Constitutes Disaffirmance 505-507 
 
 213. Extent of Ratification or Disaffirmance 507, 508 
 
 214-215. Return of Conside"ration 508-514 
 
 216-217. Effect of Ratification or Disaffirmance 514-518 
 
 218. Removal of Disabilities .: 518,519 
 
 219-220. AcUons in Tort by Infants 520-522 
 
 221-222. Liability of Infants for Torts 523-529 
 
 223-224. Responsibility of Infants for Crime 529-531 
 
 CHAPTER XV 
 
 PERSONS NON COMPOTES MENTIS AND ALIENS 
 
 225-246. Persons Non Compotes Mentis 532-560 
 
 225. In General 532,533 
 
 226. Inquisition 534, 535 
 
 227-228. Guardianship 535, 536 
 
 229. Custody and Support 536, 537 
 
 230-234. Contracts 537-546 
 
 231-234. Ratification and Avoidance of Contracts 543-546 
 
 235. Liability for Torts 546, 547 
 
 236-239. Responsibility for Crimes , 548-552 
 
 240-241. Capacity to Make a Will 552-554 
 
 242-246. Drunken Persons 554-560 
 
 242-243. Contracts ' ., 554-556 
 
 244. Liability for Torts 557 
 
 245. Responsibility for Crimes 557-559 
 
 246. Capacity to Make a Will 559-560 
 
 24T-252. Aliens 560-569 
 
 PART V 
 
 MASTER AND SERVANT 
 
 CHAPTER XVI 
 
 MASTER AND SERVANT 
 
 253-255. The Relation Defined 570-573 
 
 256. Statutory Regulation 573, 574 
 
 257-258. Creation of the Relation 574-580 
 
 259-261. Termination of the Relation 580-595 
 
TABLE OF CONTENTS 
 
 XV 
 
 Section Page 
 
 263-263. Remedies for Breach of Contract — Damages 595-599 
 
 264. In Equity — Specific Performance — Injunction 599, 600 
 
 265-271. Rights, Duties, and Liabilities Inter Se 600-605 
 
 272-275. Master's Liability for Injuries to Servant 606-642 
 
 276. Rights of Master against Third Persons 642-644 
 
 277. Rights of Servant against Third Persons 644, 645 
 
 278-279. Master's Liability to Third Persons 645-655 
 
 2S0-2Sa. Servant's Liability to Third Persons 655, 656 
 
 Table of Cases Cited 
 (Page 657) 
 
 Index 
 (Page 745) 
 
 T 
 
 .(■ ,. 
 
HANDBOOK 
 
 ON THE LAW OF 
 
 PERSONS AND DOMESTIC 
 RELATIONS 
 
 THIRD EDITION 
 
 PART I 
 
 HUSBAND AND WIFE 
 
 CHAPTER I 
 
 MARRIAGE 
 
 1-3. Definition of Marriage. 
 
 4. Essentials of Marriage — Classification. 
 
 5. Mi^tual Consent. 
 6-10. Reality of Consent. 
 
 7. Fraud. 
 
 S. Duress. 
 
 S. MJst'ike. 
 
 10. Effect of Fraud, Duress, or Mistake. 
 
 11. Mental Capacity of the Parties. 
 
 12. Insanity and Intoxication. 
 , 13. Nonage. 
 
 14. Capacity of Parties Otherwise than Mentally. 
 
 15. Relationship. 
 
 16. Physical Incapacity. 
 
 17. Civil Conditions — Race, etc. 
 
 18. Prior Marriage. 
 
 19-21. Formalities in Celebration — Informal Marriages. 
 
 22-26. Annulment and Avoidance of Marriages. 
 
 27. Power of Legislature to Validate Marriage. 
 
 28. Presumption and Burden of Proof. 
 20. Construction of Statutes. 
 
 30. Conflict of Laws. 
 TI1T.P.& D.Rei,.(3d Ed.)— 1 
 
MABEIAGB (Ch. 1 
 
 DEFINITION OF MARRIAGE , 
 
 1. The term "marriage" is used in two senses: 
 
 (a) To designate the relation of a man and a woman legally unit- 
 
 ed for life as husband and wife. 
 
 (b) To designate the act, as distinguished from the executory 
 
 agreement to marry, by which the parties enter into the 
 marriage relation. 
 
 2. Marriage, in the sense of the relation of husband and wife, is a 
 
 status, and not a contract. 
 
 3. Marriage, ^in the sense of the act by which the parties become 
 
 husband and wife, has been called a contract, but, strictly 
 speaking, it is not so; it is the performance of their con- 
 tract to marry, resulting in a change of status. 
 
 The term "marriage" has been used in two senses, and this dou- 
 ble use of the term has resulted in some confusion. In one sense, 
 it means the marriage relation; that is, the status of a man and 
 woman legally united as husband and wife.^ In another sense, it 
 means the act or ceremony by which that relation is assumed, as 
 distinguished from the executory contract to marry.^ It is used 
 in the first sense when it is said that a marriage has been dissolved, 
 and in the second sense when it is said that a marriage has been 
 celebrated, or has been proved. 
 
 Marriage as a Contract 
 
 It is said by many of the text-writers, and it has often been said 
 by the courts, that marriage is a "civil contract." * So, too, in many 
 
 1 Livingston v. Livingston, 173 N. 'S. 377, 66 N. E. 123, 61 L. E. A. 800, 93 . 
 Am. St. Rep. 600; State v. Bittick, 103 Mo. 183, 15 S. W. 325, 11 L. R. A. 
 587, 23 Am. St. Rep. 869 ; People v. Case, 241 111. 279, 89 N. E. 638, 25 L. R. 
 A. (N. S.) 578. The essential feature of marriage is that the relation can ex- 
 ist only betveeen one man and one woma.n. Riddle \. Riddle, 26 Utah, 26.S, 
 72 Pae. 1081; Warrender v. Warrender, 2 Clark & F. 532. 
 
 2 Noel V. Ewing, 9 Ind. 37. 
 
 8 Johnson v. Jolmson's Adm'r, 30 Mo. 72, 77 Am. Dee. 598 ; Fornshill y. 
 Murray, 1 Bland (Md.) 479, 18 Am. Dee. 344; McKinney v. Clarke, 2 Swan 
 (Tenn.) 321, 58 Am. Dec. 59 ; Barkshire v. State, 7 Ind. 389, 65 Am. Dec. 738-; 
 Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244; In re Imboden's 
 Estate, 111 Mo. App. 220, 86 S. W. 263 ; Nelson v. Brown, 164 Ala. 397, 51 
 South. 360. The contract of marriage being a civil contract, the rules to be 
 applied thereto must be. to a great extent, the same as are applied to other 
 contracts. Goad v. Coad, 87 Neb. 200, 127 N. W. 455. 
 
§§ 1-3) DEFINITION OP MARRUGK 3 
 
 of the states the Legislature has undertaken to define marriage 
 as a "civil contract" ; * but this is for the purpose of convey- 
 ing the idea that mutual consent of the parties is essential, or 
 that mutual consent alone, withotit formal celebration, is suffi- 
 cient to constitute marriage, or for the purpose of emphasizing the 
 fact that marriage is a civil, and not a religious,-institution.° Such 
 a statute cannot have the effect of making marriagfe a true contract. 
 Though the law defines marriage as a civil contract, it differs 
 from all other contracts in its consequences to the body politic, and 
 for that reason, in dealing with it, or with the status resulting 
 therefrom, the state never stands indifferent, but is always a party 
 whose interest must be taken into account.® Strictly speaking, 
 however, marriage is not a contract, in either of the senses in which 
 the term is used.^ The question has arisen in a number of cases 
 where the Legislature has undertaken to grant divorces, or to 
 change the rights of parties who have married. It has been con- 
 tended that such acts of the Legislature are unconstitutional, be- 
 cause they impair the obligation of contracts ; but the.^ourts have 
 held that marriage is not a contract, within the meaning of this 
 clause of the Constitution.* These decisions not only hold that the 
 
 4 See, for example, the following- statutes: 2 Mills' Ann. St. Oolo. 1891, 
 § 2988; Burns' Ann. St. Ind. 1914, § 8357; Gen. St. Kan. 1905, § 4194; Rev. 
 Laws Minn. 1905, § 3552; Ck)mp. St. Neb. 1905, § 4273; Domestic Relations 
 Law N. Y. (Oonsol. Laws, c. 14) § 10; St. Wis. 1898, § 2328. In some states, 
 too, the statutes declare that marriage is a personal relation arising out of a 
 civil contract. Civ. Code Cal. 1906, § 55; Civ. Code Mont. 1895, § 50; Comp. 
 Laws N. D. 1013, § 4357; Civ. Code S. D. 1903, § 34. 
 
 5 See Fornshill v. Murray, 1 Bland (Md.) 479, 18 Am. Dec. 344 ; "Wade <f. 
 Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250; Mathewson v. Phoenix Iron 
 Foundry (O. C.) 20 Fed. 281 ; Reaves v. Reaves, 15 Okl. 240, 82 Pac. 490, 2 
 L. R. A. (N. S.) 353. 
 
 Willits v. Willits, 76 Neb. 228, 107 N. W. 379, 5 L. R, A; (N. S.) 767, 14 Ann. 
 Cas. 883 ; Tramwell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 
 81 Am. St. Rep. 302 ; Coy v. Humphreys, 142 Mo. App. 92, 125 S. W. 879. 
 
 7 Andrews v. Andrews, 188 TJ. S. 14, 30, 23 Sup. Ct 237, 47 L. Ed. 366; 
 Maynard £, Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654, C'ooley Gas. 
 Persons and Domestic Relations, 1; Sottomayer v. De Barros, 5 Prob. Div. 
 94 ; Adams v. Palmer, 51 Me. 481 ; Ditson v. D'itson, 4' R. I. 87 ; Wade V. 
 Kalbfleisch, 58 N. Y. 282, 17 Am. Rep. 250; Moot v. Moot, 37 Hun (N. T.) 
 288 ; Wlatliins v. Watliins, 135 Mass. 83 ; Maguire V. Maguire, 7 Dana (Ky.) 
 ISl ; Green v. State. 58 Ala. 190, 29 Am. Rep. 739 ; Noel v. Ewing, 9 Ind. 
 37 ; Mapee v. Yoimg, 40 Miss. 164. 90 Am. Dec. 322. And see Schouler's Law 
 of Domestic Relations (1905) § 13. This question may be a very important 
 one. See post, pp. 4, 5. 
 
 8 See the cases cited above in note 7. 
 
MARRIAGE 
 
 (Ch. 1 
 
 marriage relation is not a contract, but they necessarily hold that 
 the ceremony of marriage is not a contract, for a statute that would 
 impair the obligations of the former would necessarily impair the 
 obligations of the latter. That neither marriage, nor the marriage 
 relation, is a contract, would seem obvious when the dififerences 
 between them are noticed. Jn a contract the parties fix its terms, 
 'but marriage imposes its own terms. ^A contract may be terminat- 
 ed by mutual consent, but the marriage ^relation cannot be so ter- 
 minated. An agreement to marry is necessary to a valid marriage, 
 but when that agreement is carried out, by marrying, a relation is 
 created between the parties which they cannot change." Unlike a 
 contract, also, the marriage relation canilot necessarily be terminat- 
 ed; even though one of the parties becomes incapable of performing 
 his part; nor can it.be terminated by an infant of marriageable 
 age.^" In these and ftiany other respects it is irreconcilable with 
 the ideas of contract. 
 
 Some confusion has arisen from confounding the contract to mar- 
 ry with the execution or performance of that contract, and with the 
 relation that results from such performance. Where parties mutu- 
 ally agree to marry at some future time, there is a contract to mar- 
 ry. When they marry — that is, when they express their mutual 
 consent with the formalities required by law, or when they infor- 
 mally assume the relation — they do not contract, but they perform 
 their contract to marry, just as a conveyance of land, and payment 
 therefor, is a performance of a previous contract to convey, on the 
 one side, and to pay, on the other. When the contract to marry is 
 performed by marriage, a relation or status, not a contract, results. 
 Agreement is necessary to a valid marriage, and it is for this rea- 
 son, no doubt, that writers and judges have spoken of it as a con- 
 tract. But it must be remembered that something more than agree- 
 ment is necessary to constitute a contract. The agreement must di- 
 rectly, and not remotely, contemplate and create a personal obliga- 
 tion, an obligation in personam, capable of enforcement by the 
 courts in an action by one of the parties against the other. Mar- 
 riage neither directly contemplates nor creates such an obligation. ^^ 
 It is otherwise, of course, with an agreement to marry. These con- 
 siderations make it clear that marriage cannot, in either sense of 
 
 » Andrews v. Andrews, 188 U. S. 14, 30, 23 Sup. Ct. 237, 4.7 L. Ed. 366j 
 
 10 Post, p. 22. 
 
 11 Sec Anson, Cont. 3 ; Clark, Cont. 12. 
 
§§ 1-3) DEFINITION OP MAEELA.aE 5 
 
 the term, be regarded as a contract. The marriage relation is a 
 status, and marriage is a change of status.^'' 
 
 "Marriage has been well said to be something more than a con- 
 tract, either religious or civil ; to be an institution." ^* "Marriage 
 is a state or relation, depending for its existence upon the fact of 
 parties competent to contract the relation, and their legal volun- 
 tary, present consent to do so, with such formalities as the law of 
 the place requires for its valid solemnization." ^* "When the con- 
 tracting parties have entered into the married state, they have not 
 so much entered into a contract as intd a new relation, the rights, 
 duties, and obligations of which rest, not upon their agreement, but 
 upon the general law of the state, statutory or common, which de- 
 fines and prescribes those rights, duties, and obligations. They are 
 of law, not of contract. It was a contract that the relation should 
 be established, but, being established, the power of the parties, as 
 to its extent or duration, is at an end. Their rights under it are ^ 
 determined by the will of the sovereign, as evidenced by law. They 
 can neither be modified nor changed by any agreement of par- 
 ties." ^° "Marriage is not a contract, but one of the domestic rela- 
 tions. In strictness, though formed by contract, it signifies the re- 
 lation of husband and wife, deriving both its rights and duties from 
 a source higher than any contract of which the parties are capable, 
 and, as to these, uncontrollable by any contract which they can 
 make. When formed, this relation is no more a contract than 
 'fatherhood' or 'sonship' is a contract." ^' 
 
 12 Linebaugh v. Linebaush, 137 Oal. 26, 69 Pac. 616. 
 
 13 Hyde v. Hyde, L. R. 1 Prob. & Div. 130, 133 ; CJoe v. Hill, 201 Mass. 15, 86 
 N. E. 949; Bacon v. Bacon, 43 Ind. App. 218, 86 N. E. 1030; Gortia v. Kueda, 
 35 Phil. Rep. 1053. 
 
 i* Story, Confl. Laws, § 112a. And see Mitchell v. Mitchell, 63 Misc. Rep. 
 580, 117 N. Y. Supp. 671 ; Knost v. Knost, 229 Mo. 170, 129 S. W. 665, 49 L. R. 
 A. (N. S.) 627; Grigsby v. Reib. 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, 
 Ann. Cas. 1915C, 1011, affirming judgment (Te.i. CJiv. App.) 139 S. W. 1027. 
 
 15 Adams v. Palmer, 51 Me. 481, 483; Maynard v. Hill, 125 U. S. 190, 8 
 Sup. Ct. 723, 31 L. Ed. 654, Codley Gas. Persons and Domestic Relations, 1; 
 Hilton V. Roylance, 25 Utah, 129, 69 Pac. 660, 58 L. R. A. 723, 95 Am. St. Rep. 
 821. Tn Christian nations marriage is not treated as a mere contract to be 
 suspended or dissolved, at pleasure, but rather as a status based on public 
 necessity, and controlled by law for the benefit of society at large. People v. 
 Case, 241 111. 279, 89 N. E. 638, 25 L. R. A. (N. S.) 578. A valid marriage can- 
 not be contracted when either party is privileged to annul It by asserting a 
 legal right ; It being essential that the marriage be absolute. Jordan v. Mis- 
 .■souri & Kansas Telephone Co., 136 Mo. App. 192, 116 S. W. 432. 
 
 18 Ditson v. Ditson, 4 R. I. 87, 101. 
 
MABBIAQB 
 
 (Ch.l 
 
 Power^ to Regulate, and Control , 
 
 Marriage is a social institution or status, in which, because the 
 foundations of the family and the domestic relations rest upon it, 
 the commonwealth has a deep interest.^'' It is therefore within the 
 legitimate exercise of the legislatiye power of the state to declare, 
 as to its citizens, what shall be recognized as the marriage status.^* 
 The state has the right to control and regulate 'by reasonable laws 
 the marriage relationship of its citizens,^® and the wishes and de- 
 sires, or even the immediate welfare, of the individual, must yield 
 to the public policy of the state.*" 
 
 ESSENTIALS OF MARRIAGE— CLASSIFICATION 
 
 4. The essentials of a valid marriage may be classified and treated 
 as follows: 
 
 (a) Mutual consent, or agreement, under which head may be 
 
 treated 
 
 (1) Intention generally. 
 
 (2) Reality of consent, or consent as aiTected b^ fraud, 
 
 duress, or error. 
 
 (b) Parties capable of intelligent consent, imder which head may 
 
 be treated 
 
 (1) Insanity and intoxication. 
 
 (2) Nonage. 
 
 (c) Parties otherwise capable of entering into the marriage rela- 
 
 tion, under which may be treated the effect of 
 
 (1) Relationship between the parties — consanguinity or af- 
 
 finity. 
 
 (2) Phys.ical incapacity. 
 
 (3) Civil conditions. 
 
 (4) Prior marriage. 
 
 IT Ooe V. Hill, 201 Mass. 15, 86 N. E. 949: Lauer v. Banning, 152 Iowa, 99, 
 131 N. W. 783. * 
 
 18 Schumacher v. Great Northern By. Co., 23 N. D. 231, 136 N. W. 85 ; Co- 
 hen V. Cohen, 3 Boyce (Del.) 361, 84 Atl. 122 ; Blakeslee v. Blakeslee, 41 Nev. 
 235, 168 Pac. 950 ; In re Gregorson's Estate, 160 Cal. 21, 116 Pac. 60, L. R. A. 
 1916C, 697, Ann. Cas. 1912D, 1124 ; Caras v. Hendrlx, 62 Fla. 446, 57 South. 
 345. 
 
 18 Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654, Cooley Cas. 
 Persons and Domestic Relations, 1 ; Andrews v. Andrews, 188 TJ. S. 14, 30, 23 
 Sup. Ct. 237, 47 Ii. lEd. 366; Kitzman v. Kitzman, 167 Wis. 308, 166 N. W. 
 789. 
 
 2 Kitzman r. Kitzman,' 167 Wis. 308, 166 N. W. 789. 
 
§ 5) MUTUAL CONSENT 7 
 
 (d) Formalities in the celebration of marriage, under which head 
 may be treated informal marriages. 
 
 While marriage, in the sense of the act or ceremony by which the 
 relation of husband and wife is assumed, is no more a real contract 
 than is the relation itself, still mutual consent or agreement is nec- 
 essary, and this fact clothes marriage with a seniblance of contract. 
 Marriage and contract have the element of agreement in common, 
 and anything that would exclude this element in contract would 
 also exclude it in marriage. There are many principles, therefore, 
 of the law of contract, that apply also in the case of marriage. The 
 necessity for mutual consent, including the question of reality of 
 consent, or consent as affected by fraud, duress, or mistake, gives 
 rise to rules which are also applicable to the formation of contract. 
 So, also, with the question of insanity or intoxication. But, mar- 
 riage also involves other essentials which have no place in the law 
 of contract. Thus the parties ,must be physically capable ; they 
 must not be related to each other within the degrees within which 
 marriage is prohibited ; there must be no impediment of civil con- 
 dition; and the parties must not be bound by a prior rriarriage. 
 In some jurisdictions_alsOi. certain formalities are prescribed by 
 law, to be observed in the celebration of marriage ; and, if such is 
 the intent of the law, these formalities must be complied with. 
 Contracts by an infant are voidable, but an infant of a certain age 
 may enter into a marriage that will be absolutely binding on him. 
 It will be seen, therefore, that the essentials of marriage differ 
 widely from the essentials of contract. 
 
 MUTUAL CONSENT 
 
 5. To constitute a valid marriage, there must be agreement or mu- 
 tual consent to enter into the marriage relation. 
 
 One of the elements common to both contract and marriage is the 
 agreement or mutual consent of the parties. Though 'the marriage 
 relation is an institution over which, whgn it has been entered into, 
 the parties have little control, yet it lies entirely with them whether 
 they shall assume that relation. Their agreement or mutual con- 
 sent, therefore, is essential,^' and anything that goes to show that 
 
 2iMcClurgi Terry, 21 N. J. Eq. 225; Claris v. Field, 13 Vt. 460, 465; 
 Uoszcl V. Roszel, 73 Mich. 133, 40 N. W. 858, 16 Am. St. Rep. 569 ; State v. 
 
8 MAEEIAGE (Ch. 1 
 
 there was no real agreement, such as a lack of intent to assume the 
 marriage relation,"^ shows that there was no valid marriage. . Thus 
 in McClurg v. Terry,"' it appeared that a man and woman having 
 capacity to enter into the marriage relation went through thq for- 
 malities required by law, and were pronounced man and wife by 
 a person who was authorized to perform the marriage ceremony. 
 The parties, howevei^ took this step merely as a joke-^not intend- 
 ing it to be a marriage — and it was therefore held that there was no 
 valid marriage. 
 
 Worthingham, 23 Minn. 528 ; Kundle v. Pegram, 49 Miss. 751 ; Tartt v. Ne- 
 gus, 127 Ala. 301, 28 South. 713 ; Kuteh v. Kutch, 88 Neb. 114, 129 N. W. 169 ; 
 Gotigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. E. A. 1915B, 1, Ann. Cas. 
 1915C, 1011, affirming (Tex. Olv. App.) 139 S. Wi 1027; Le Suer v. Le Suer, 
 122 Minn. 407, 142 N. W. 593. The consent need not be expressed in any 
 especial manner or by any prescribed form of words. University of Michigan 
 V. McGuckin, 62 Neb. 489, 87 N. W. 180, 37 L,. R. A. 917, Cooley Cas. Per- 
 sons and Domestic Relations, 6, affirmed on rehearing 64 Neb. 300, 89 N. W. 
 T7S, 57 L. R. A. 917, Cooley Cas. Persons and Domestic Relations, 6. Evi- 
 deffce that a woman joined her hands with that of a man before a justice 
 of the peace, stood mute during the marriage ceremony which the justice 
 performed, and did not in any way dissent when the justice" declared them 
 ;raan and wife, does not justify an inference that the woman refused her as- 
 sent to the marriage. In re Torrence's Estate, 47 .£a. Super. Ct 509. Consent 
 may be implied from the acts of the parties. Hilton v. Roylance, 25 Utah, 
 129, 69 Pac. 660, 58 L. R. A. 723, 95 Am. St. Rep. 821. But see Hooper v. 
 McCafCery, 83 111. App. 341, where it was said that subsequent cohabitation 
 while it will give character to words used or acts done, will not supply lack 
 of consent. 
 
 22 University of Michigan v. McGuckin, 62 Neb. 489, 87 N. W. 180, 57 L. 
 K. A. 917, Cooley Cas. Persons and Domestic Relations, 6, affirmed on rehear- 
 ing 64 Neb. 300, 89 N. W. 778, 57 L. R. A. 917, Cooley Cas. Persons and Do- 
 mestic Eelation.s, 6 ; Eaton v. Eaton, 66 Neb. 676, 92 N. W. 99d, 60 I/. R. A. 
 605, 1 Ann. Cas. 199 ; Dorgeloh v. Murtha, 92 Misc. Rep. 279, 156 N. Y. Supp. 
 181. The intent may be gathered from the circumstances attending the con- 
 sent or agreement, and mere mental reservations and the secret intent of one 
 of the parties not to consider- the marriage binding are ineffectual. Imboden v. 
 St. Louis Union Trust Co., Ill Mo. App. 220, 86 S. W. 263. If one party to a 
 marriage induces the other to believe. In good faith, that the contract Is 
 made and is binding, the law will hold the party taking such advantage to 
 the full terms of the agreement. Coad v. Ooad, 87 Neb. 290, 127 N. W. 455. 
 The statement of a man at the time of his marriage that ha would not live 
 with the woman, did not render the marriage void. Wimbrough v. Wim- 
 brough, 125 Md. 619, 94 Atl. 168, Ann. Cas. 1916B, 920. 
 
 28 21 N. J. Eq. 225. And compare Barclay v. Commonwealth, 116 Ky. 275, 
 T6 S. W. 4, and I^e v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R.,A. 
 904, where, to the knowledge and intent of the man, the marriage was a 
 sham. But the mere fact that the parties to a marriage did not intend 
 that the marital relation should be permanent, the marriage having been 
 legally performed, does not affect its validity. Donohue v. Donohue, 159 Mo. 
 App. 610, 141 S. W, 465. 1 
 
§§ 6-10) REALITY OP GONSBNT 9 
 
 REALITY OF CONSENT— FRAUD, DljRESS, AND MIS- 
 TAKE 
 
 6. The mutual consent which is essential to a valid marriage must 
 
 be real. There may be no real consent, because of 
 
 (a) Fraud. 
 
 (b) Duress. 
 
 (c) Mistake. 
 
 7. FRAUD — Fraud, to affect the validity of the marriage, must re- 
 f late to some fact essential to the marital relation. A mar- 
 riage is not invalidated by false representations as to rank, 
 fortune, character, or health ; nor by false representations 
 as to chastity, except where the woman was pregnant by 
 another man at the time of the marriage, and the husband 
 was ignorant of the fact, cind had not himself had inter- 
 course with her. Deceit may invalidate a marriage, if it 
 prevented the other party from understanding its nature, 
 as in cases where advantage is taken by one party of the 
 extreme youth or age of the other. / 
 
 8. DURESS — A marriage is voidable if either party acted imder 
 
 duress. 
 
 9. MISTAKE — Mistake as to the nature and legal consequences of 
 
 *^ the ceremony, or as to the identity of the other party, ren- 
 ders the marriage voidable; but a marriage is not invali- 
 dated by mistake as to the rank, fortune, character, or 
 health of one of the parties. 
 
 10. EFFECT OF FRAUD, DURESS, OR MISTAKE— A mar- 
 
 riage is voidable on the ground of fraud, duress, or mis- 
 take, and not absolutely void ; but it is voidable by act of 
 the party, without fiie necessity for a decree of nullity. 
 It can be avoided only by the party deceived, coerced, or 
 mistaken. 
 Fraud 
 
 As in the case of contracts generally, in order to avoid a mar- 
 riage for fraud, the false representation or concealment must affect 
 some material fact essential to the marriage relation.^* Thus it 
 
 2 4 Crane v. Crane, 62 N. J. Eq. 21, 49 Atl. 734; Beach y. Beach, 160 Iowa, 
 346, 141 N. W. 921, 46 U R. A. (N. S.) 98, Ann. Cas. 1915D, 216; Moore v. 
 
10 MARRIAGE (Ch. 1 
 
 has been held that entering into the marriage contract with the inr 
 tent to abandon the spouse is a, fraud justifying annulment.^" So, 
 too, it has been held that concealment of a prior subsisting mar- 
 riage is a fraud justifying annulment,^' and a false representation 
 or concealment as to facts rendering the assumption of the mar- 
 riage relation dangerous to health or life will furnish ground for 
 avoidance.^^ Since the false representation or concealment must 
 affect some material fact essential to the marital relation, it is the 
 general rule that false representations as to rank, fortune, charac- 
 ter, or health do not invalidate a marriage.^' Whether this is be- 
 
 Mobre, 94 Arise., Eep. 370, 157 N. Y. Supp. 819 ; Thompson v. Thompson (Tex. 
 Civ. App.) 202 S. W. 175 ; Roth v. Roth, 97 Misc. Rep. 136, 161 N. Y. Sipp. 
 99. 
 
 2B Anders v. Anders, 224 JIass. 438, 113 N. E. 203, L. R. A. 1916E, 273 ; Moore 
 y. Moore, 94 Misc. Rep. 370, 157 N. Y. Supp. 819. But compare Beckermeister 
 V. Beckermeister (Sup.) 170 N. Y. Supp. 22. And see' Johnson v. Johnson, 176 
 Ala. 449, 58 South. 418, 39 L. R. A. (N. S.) 518, Ann. Cas. 1915A, 828, holding 
 that the fact that a husband in contracting a marriage did so to prevent his 
 wife testifying against him in a prosecution for seducing her, and with the 
 intention of abandoning her, does not constitute such fraud as renders the 
 marriage void. A marriage will not be avoided on the ground of conceal- 
 ment of the wife's physical incapacity to bear children, when the facts so 
 far as known to her were stated and the prospective husband was put in posi- 
 tion to acquire- exact information. Wtendel v. Wendel, 30 App. Div. 447, 52 
 N. Y. Supp. 72. See, also, Schroter v. Schroter, 56 Misc. Rep. 69, 106 N. Y. 
 Supp. 22. 
 
 28 Batty V. Greene, 206 Mass. 561, 92 N. B. 715, 138 Am. St. Rep. 407; Weill 
 V. Weill, 104 Misc. Rep. 561, 172 N. Y. Supp. 589. And see Roth v. Roth, 97 
 Misc. Rep. 136, 161 N. Y. Supp. 99. But mere concealment of the fact of a 
 previous marriage is not ground to avoid the marriage. Boehs v. Hanger, 69 
 N. J. Eq. 10, 59 Atl. 904 ; Trask v. Trask, 114 Me. 60, 95 Atl. 352 ; Davis v. 
 Whitlock, 90 S. C. 233, 73 S. B. 171, Ann. Cas. 1913D, 538; Donnelly v. 
 Strong, 175 Mass. 157, 55 N. B. 892. 
 
 2 7 Lyon V. Lyon, 230 111. 366, 82 N. B. 850, 13 L. R. A. <N. S.) 996, 12 Ann. ' 
 Cas. 25, Cooley Cas. Persons and Domestic Relations, 11. 
 
 28Ewing V. Wheatley, 2 Hagg. Ecc. 175; Wakefield v. Mackay, 1 Hags. 
 Consist. 394 ; Wier v. Still, 31 Iowa, 107 ; Oarris v. Carris, 24 N. J. Eq. 516 ; 
 Reynolds ^. Reynolds, 3 Allen (Mass.) 605 ; Leavitt v. Leavitt, 13 Mich. 456 ; 
 Long v. Long, 77 N. C. 304, 24 Am. Rep. 449; Scroggins v. Seroggins, 14 
 N. C. 535; Lewis v. Lewis, 44 Minn. 124, 46 N. W. 323, 9 L. R. A. 50?, 20 
 Am. St. Rep. 559, Cooley Cas. Persons and Domestic Relatldns, 17; Libman 
 v. Libman, 102 Misc. Rep. 443, 169 N. Y. Supp. 900; Gumbiner v. Gumbiner, 
 72 Misc. Rep. 211, 131 N. Y. Supp. 85; Williamson v. Williamson, 34 App. 
 D. C. 536, 30 L'. R. A. (N. S.) 301 ; Flsk v. Fisk, 12 Misc. Rep. 466, 34 N. Y. 
 Supp. 33. Contra, Keyes v. Keyes, 6 Misc. Rep. 355, 26 N. Y. Supp. 910. 
 In the last case a man had represented himself to be honest and industrious, 
 whereas he was in- fact a professional thief, whose picture was in the rogue's 
 gallery ; and the marriage was annulled on the ground of fraud. This case, 
 however, is against the weight of authority. See Wier v. Still, and other 
 
§§ 6-10) ' REALITY OF CONSENT 11 
 
 cause these qualities are not essentials of marriage; °° or because 
 the law presumes the exercise of due caution in a matter of ^uch im- 
 portance, and that these conditions are waived by marrying; "' or 
 because of grounds of public policy — the cases are almost uniform 
 in holding that fraudulent representations in the^e particulars can- 
 not be relied upon to defeat an otherwise valid marriage. So far as 
 matters of ^ealth are concerned, the general rule has, however, been 
 modified and the doctrine is recognized that the concealment of the < 
 existence of a loathsome or dangerous_^disease — dangerous to the 
 other spouse and to the offspring o^ the union, if such there should 
 be — is a fraud rendering the marriage voidable.'^ 
 
 \The cases go so far as to hold that false representations as to 
 previous chastity are not ground for annulling a marriage, even jC 
 though the woman may have been a common prostitute.^^ When, 
 
 cases cited atove. But in Di Lorenzo v. Di Lorenzo, 374 N. T. 467, 67 N. E. 63, 
 63 L. R. A. 92, 95 Am. St. Rep. 609, where the woman, having given birth to a 
 child, represented to plaintiff that he was the father, thus inducing him to con- 
 sent to marriage to order* to legitimate the child, it was held that this was 
 a fraud, affording ground for annulment. In Lewis v. Lewis, 44 Miim. 124, 
 46 N. W. 323, 9 L. R. A. .505, 20 Am. St. Rep. .059, Cooley Cas. Persons and 
 Domestic Relations, 17, it was held that a marriage is not voidable for fraud 
 for concealment of the fact that the wife was at the time a kleptomaniac. 
 That a husband concealed that he was afflicted with a taint of hereditary in- 
 sanity is no ground for annulling the marriage for fraud. Alien v. Allen, 
 
 85 N. J. Kq. 55, 95 Atl. 363. 
 
 29 1 Fra.ser, Dom. Rel. 230; 1 Kent, Comm. 77. 
 
 30 1 Bish. Mar., Div. & Sep. § 460; Wakefield v. Mackay, 1 Hagg. Consist. 
 394. 
 
 31 Smith V. Smith, 171 Mass. 404, 50 N. E. 933, 41 L. K. A. 800, 68 Am. St. 
 Rep. 440, where the husband was afflicted with syphilis in an incurable form. 
 To the same effect, see Svenson v. Svenson, 178 N. Y. 54, 70 N. E. 120 ; 
 Jordan v. Missouri & K. Tel. Co., 136 Mo. App. 192, 116 S. W. 432 ; Ctane 
 V. Crane. 62 N. J. Eq. 21, 49 Atl. 734 ; Sobol v, Sobol, 88 Misc. Rep. 277, 150 
 
 N. Y. Supp. 248 (tuberculosis) ; C v. C , 158 Wis. 301, 148 N. W. 865, 
 
 5 A. L. R. 1013 (gonorrhea) ; Anonymous, 21 Misc. Rep. 765, 49 N. Y. Supp. 
 331. But see Vondal v. Vondal, 175 Mass. 383, 56 N. E. 586, 78 Am. St Rep. 
 502, where the disease had not reached a contagious stage at the time of 
 marriage, and the marriage had been consummated. The fact that one of the 
 parties to a marriage believes he or she is afflicted with hereditary insan- 
 ity, and does not communicate the belief to the other party, is no ground 
 for annulment of the marriage, where there is no justification for such be- 
 lief, though insanity did occur six years after the marriage. Allen v. Allen, 
 
 86 N. J. Eq. 441, 99 Atl. 309, a:fHrming decree 85 N. J. Eq. 55, 95 Atl. 363. 
 
 32 Hedden v. Hedden, 21 N. J. Eq. 61 ; Farr v. Farr, 2 MacArthur (D. C.) 
 35 : Reynolds v. Reynolds, 3 Allen (Mass.) 605 ; Leavitt v. Leavitt, 13 Mich. 
 452 ; Wier v. Still, 31 Iowa, 107 ; Donnelly v. Strong, 175 Mass. 157, 55 N. 
 B. 892; Shrady v. Logan, 17 Misc. Eep. 329, 40 N. Y. Supp. 1010. But the 
 contrary rule was recognized in Entsminger v. Entsminger, 99 Kan. 362, 161 
 
1-2 MAEEUGE , (Ch. 1 
 
 ^ however, ^he woman is pregnant by another man at the time of the 
 marriage, the marriage is voidable.'^ The courts have placed their 
 decision, where the case has arisen, on the ground that the ability 
 to bear the husband a child of his loins is an essential of marriage, 
 and that a pregnant woman is not able to carry out the agreement 
 in, this essential particular.^* In order that the husband may be 
 entitled to avoid the marriage on the ground of the wife's preg- 
 nancy by another man at the time of the marriage, he must have 
 been. ignorant of the fact; for otherwise there is no fraud, nor fail- 
 ure to consent.*'' Express denials by the w^oman, or overt acts of 
 concealment, are not necessary. It is sufficient if her conduct was 
 such that a reasonably cautious person might be misled.*" If the 
 shusband had himself had antenuptial connection with the wife, he 
 must be regarded as having been put upon his guard as to her chas- 
 tity, and he will not be permitted to say that he was ignorant of 
 her pregnancy by another man at the time of the marriage.*^ 
 
 Pae. 607; Donischke v. Doui?chke, 138 App. Div. 454, 122 N. T. Supp. S92. 
 In Hull V. Hull, 191 111. App. 307, it was held that false representations 
 by a man before marriage, made to his intended wife, as to his not having 
 had intercourse with other women, are not ground for annulment. See, also, 
 Glean v. Glean, 70 App. Div. 576, 75 N. Y. Supp. 622. 
 
 38 Scott V. Shufeldt, 5 Paige (N. T.) 43.; Reynolds v. Reynolds, 3 Allen 
 (Mass.) 605; Donovan v. Donovan, 9 Allen (Mass.) 140; Baker v. Baker, 13 
 Cal. 87; Montgomery v. Montgomery, 3 Barb. Ch. (N. Y.) 132; Fontana v. 
 Fontana. 77 Misc. Rep. 28, 135 N. Y. Supp. 220; Allen's Appeal, 99 Ea. 196, 
 44 Am. Rep., 101 ; Carris v) Carris, 24 N. J. Eq. 516 ; Sinclair v. Sinclair, 57 
 N. J. Eq. 222, 40 Atl. 679 ; Ritter v. Ritter, 5 Blackf. (Ind.) 81 ; Frith v. Frith, 
 18 Ga. 273, 63 Am. Dec. 289; Gondouin v. Gondonin, 14 Cal. App. 285, 111 
 Pac. 756 ; Harrison v. Harrison, 94 Mich. 559, 54 N. W. 275, 34 Am. St. Rep. 
 S64. See Long v. Long, 77 N. C. 304, 24 Am. Rep. 449. 
 
 3* In 1 Bish. Mar., Div. & Sep. § 486, the auUior has pointed out that this 
 is inconsistent with the position taken by the courts in considering the dis- 
 ability of impotence, where the law is settled that copula, not fruitfulness, j 
 is the test, and that barrenness is no ground for nullity. Post, p. 29. 
 
 3 5Foss V. Foss, 12 Allen (Mass.) 26; Orehore v. Crehore, 97 Mass. 330, 93 
 Am. Dec. 98; Butler v. Eschleman, IS 111. 44; Berry v. Bakeman, 44 Me. 
 164. And see Steele v. Steele, 96 Ky. 382, 29 S. W. 17. 
 
 3 6 Donovan v. Donovan, 9 Allen (Mass.) 140. 
 
 ST Seilheimer v. SeiUaeimer, 40 N. J. Eq. 412, 2 AO. 376; Crehore v. Cre- 
 hore, 97 Mass. 380, 93 Am. Dec. 98; Foss v. Foss, 12 Allen (Mass.) 26; Franke 
 V. Franke, 3 Cal. Unrep. 656, 31 Pac. 571, IS D. R. A. 375; SafEord v. Saf- 
 ford, 224 Mass. 392, 113 N. E. 181, L. R. A. 1916F, 526; Lyman v. Lyman, 
 90 Conn. 399, 97 Atl. 312, L. R. A. 1916E, 643 ; Tait v. Tait, 3 Misc. Rep. 
 218, 23 N. Y. Supp. 597. But see Moss v. Moss, 24 N. C. 56. It was held in 
 Gondouin v. Gondouin, 14 Cal. App. 285, 111 Pac. 756, that a man who has been 
 having illicit intercourse with a woman prior to his marriage with her cannot 
 have the marriage annulled on the ground that it was brought about by the wo- 
 
§§ 6-10) BEALITT OF CONSENT 13 
 
 When consent is obtained by deceit, under such circumstances 
 that the nature of the marriage is not understood, the marriage may- 
 be avoided. Such cases arise where one of the parties takes advan- 
 tage of the extreme youth or age ot the other.'' 
 
 Duress 
 
 A marriage under duress or compulsion is without the consent 
 necessary to itj validity, and may be avoided.'" It has, indeed, 
 been said that the compulsion,' to avoid the marriage, must cause 
 fear of bodily harm.*" So it has been said that duress which will 
 invalidate a marriage must be fear of that degree of violence, 
 threatened or actually inilicted, sufficient to overcome the mind and . 
 will of a person of ordinary firmness.*^ Probably this statement is 
 
 man falsely representing that she was pregnant by him. On the other hand, in 
 Gard v. Gard, 204 Mich. 255, 169 N. W. 908, it was held that a marriage pro- 
 cured by the wife's false representations that she was pregnant by the hus- 
 band, when she was pregnant 'by another man, to whose child she later gave 
 bir^h, will be annuUed at the husband's suit, though the wife informed him 
 during acquaintance she had had intercourse with another. 
 
 S8 Harford v. Morris, 2 Hagg. Consist. 423; Browning v. Reane, 2 Phillim. 
 Ecc. 70 ; Eex v. Wakefield, 2 Lewin, Cr. Gas. 279 ; Hull v. Hull, 5 Eng. Law 
 & Eq. 589; Clark v. Field, 13 Vt. 460; Gillett v. Gillett, 78 Mich. 184, 48 N. 
 W. 1101 ; Lyndon v. Lyndon, 69 HI. 43 ; Robertson v. Cole, 12 Tex. 356 ; Moot 
 V. Moot, 37 Hun (N. Y.) 288. In Gillett v. Gillett, supra, it appeared that 
 complainant, a man of 75, blind, more or less deaf, and otherwise broken, 
 who had just received a liberal pension, with a large amount of arrears, 
 was induced, by putting him under the influence of liquors, and probably 
 of drugs, to marry defendant, a woman less than half his age, who had a 
 young child, and with whom he was very slightly acquainted, and for whom 
 he entertained no attachment. It was held that the marriage was properly 
 annulled. But see Kutch v. Kutch, 88 Neb. 114, 129 N. W. 169. 
 
 3 9 Scott Xi Sebright, 12 Prob. Div. 21; Marsh v. WhitUngton, 88 Miss. 400, 
 40 South. 326; Shoro v. Shoro, 60 Vt. 268, 14 Atl. 177, 6 Am. St. Rep. 118, 
 Cooley Cas. Persons and Domestic Relations, 15; Willard v. Willard, 6 
 Bast. (Tenn.) 297, 32 Am. Rep. 529; Bassett v. Bassett, 9 Bush (Ky.) 696; 
 Houle v. Houle, 100 Misc. Rep. 28, 166 N. Y. Supp. 67; Quealy v. Waldron, 
 126 La. 258, 52 South. 479, 27 L. R. A. (N. S.) 803, 20 Ann. Cas. 1374 ; Ander- 
 son V. Anderson, 74 Hun, 56, 26. N. Y. Supp. 492. That a marriage will not 
 be annulled on the ground of duress, unless it isi shown that the other par- 
 ty caused the dure-ss, or knowingly used it or availed himself of it to procure 
 the marriage, see Sherman v. ' Sherman (Com. PI.) 20 N. Y. Supp. 414. But 
 see Marks v. Crume, 29 S. W. 43G, 16 Ky. Law Rep. 707. A marriage was in- 
 valid where the consent of the husband was not freely giveji, but was the 
 result of a threat by the bride's fathec to kill him unless he married her. 
 Fowler v. Fowler, 131 La. 1088, 60 South. 694. To the same effect, see Sim- 
 mons V. Stevens, 132 La. 675, 61 South. 784. 
 
 *oAyl. Par. 862: Stevenson v. Stevenson, 7 Phila. QPg.) 386; Quealy v. 
 Waldron, 126 La. 258, 52 South. 479, 27 L. R. A. (N. S.) 803, 20 Ann. Oas. 
 1374. 
 
 41 Marre T. Marre, 184 Mo. App. 198, 168 S. W. 636. 
 
14 MAREIAGE (Ch. 1 
 
 too broad and should not be taken literally. The better opinion is 
 that, if either patty is in a state of mental incompetency to resist 
 pressure improperly brought to bear, there is no legal consent.*^ 
 In Scott v^ Sebright *° the duress consisted in threatening one in 
 
 'financial distress with exposure, and the court held that, inasmuch 
 as this resulted in depriving the party of her free_will, there was 
 no real consent, and the marriage was annulled. 
 
 On the other hand, it has been held that a threat that, unless the 
 plaintiff consented to jnarry the defendant, he would involve her 
 as an accomplice with a fugitive from justice after conviction of a 
 crime, was not in itself sufficient to avoid the marriage.** The 
 
 jluress must clearly have dominated throughout the transaction, so 
 as to disable the one influenced from acting as a free agent.*^ 
 JVhere a man is illegally or maliciously, and without probable 
 
 ^cause, arrested for bastardy or seduction, and marries the complain- 
 ant to avoid imprisonment, it is held that he acts under such duress 
 as will avoid the marriage; and the same is true in other cases of 
 illegal arrest.?' If, however, an arrest, or threatened arrest, for 
 bastardy or seduction, isj/alid, a marriage to escape arrest or pun- 
 ishment is not under duress, for there can be no duress in compell- 
 
 j ing a man to perform a legal duty;*'' Threats or force which do not 
 
 Voerce are not duress.** 
 
 *2 Scott V. Sebright, 12 Prob. Div. 21 ; Rex v. Wakefield, 39 Am. Reg. 316 ; 
 Harford v!."T5lorris, 2 Hagg. Consist. 423; Willard v. Willard, 6 Baxt. (Tenn.) 
 297, 32 Am. Rep. 529 ; Shepherd v. Shepherd, 174 Ky. 615, 192 S. W. 65S ; 
 Lyndon v. Lyndon, 69 111. 43. 
 
 43 12 Prob. Div. '21. 
 
 44 Nicholson v. Nicholson, 174 Cal. 391, 163 Pac. 219. 
 
 45 Beeks v. Beeks, 66 Fla. 256, 63 South, 444. 
 
 46 Reg. V. Orgill, 9 Car. & P. 80; Shoro v. Shoro, 60 Vt. 268, 14 Atl. 177, 
 6 Am. St. Rep. 118, Oooley Cas. Persons and Domestic Relations, 15; Soule 
 V. Bonney, 37 Me. 128; Bassett v. Bassett, 9 Bush (Ky.) 696; Barton's Lessee 
 V. Morris' Heirs, 15 Ohio, 408. 
 
 47 Jackson v. Winne, 7 Wend. (N. Y.) 47, 22 Am. Dec. 563; Honnett v. Hon- 
 nett, 33 Ark. 156, 34 Am. Rep. 39 ; Marvin v. Miarvin, 52 Ark. 425, 12 S. W. 
 875, 20 Am. St. Rep. 191; Blankenmiester v. Blankenmlester, 106 Mo. App. 
 390, 80 S. W. 706 ; Sickles v. Carson, 26 N. J. Eq. 440 ; State v. English, 101 
 S. O. 304, 85 S. E. 721, L. R. A. 1915F, 977; Thorne v. Farrar, 57 Wash. 441, 
 107 Pac. 347, 27 L. R. A. (N. S.) 385, 135 Am. St. Rep. 995; Oopeland v. Cope- 
 land (Va.) 21 S. E. 241; Williams v. State, 44 Ala. 24; State v. Davis, 79 
 N. 0. 603; Merrell v. Moore, 47 Tex. Civ. App. 200, 104 S. W. 514; Johns v. 
 Johns, 44 Tex. 40; Medrano v. State, 32 Tex. Or. R. 214, 22 S. W. 684, 40 
 Am. St. Rep. 775; fray v. Pray, 128 La. 1037, 55 South. 666; Shepherd v. 
 
 4* See note 48 on following page, 
 
§§ 6-10) REALITY OF CONSENT 15 
 
 Mistake 
 
 As false and fraudulent representations as to rank, fortune, char- 
 acter, or health are no ground for annulling a marriage that is oth- 
 erwise valid,*" it is clear that a mistake as to these particulars is 
 not sufficient to invalidate it. These are not essentials of the mar- 
 riage. If, however, a mistake is of such a nature as to prevent the 
 party from understanding the nature of the marriage, it must nec- 
 
 Sheplierd, 174 Ky. 615, 192 S. W. 658; Wlmbrough v. Wimbrough, 125 Md. 
 619, 94 Atl. 168, Ann. Cas. 1916B, 920; Lacoste v. Guldroz, 47 La. Ann. 295, 
 16 South. 836. In Marvin v. Marvin, supra; it was held that marriage can- 
 not be avoided on the ground of duress where a man is lawfully arrested on 
 process for seduction, and marries the woman to procure his discharge, and 
 that the fact that he subsequently discovers that he could not have been con- 
 victed will not alter the case, if the prosecution v/as on probable cause, and 
 not from malice merely. But abuse of lawful process may constitute duress. 
 Thus, where an inexperienced boy of 38 was arrested on the charge of bas- 
 tardy, and while under arrest was advised by the justice to marry the female 
 making the charge, and, notwithstanding his assertions of innocence, was 
 threatened with a conviction and conflnement in the penitentiary,' and the 
 boy married the woman to avoid such punishment, the marriage was annulled 
 on the ground of duress; Smith v. Smith, 51 Mich. 607, 17 N. W. 76. 
 
 *8 In a suit in England by a woman to annul a marriage, it appeared that 
 the parties were Americans and cousins. Efispondent had made an offer of 
 marriage to the petitioner, which she had refused. On a Sunday, he being 
 then under 21 and she 24 years of age, under- the pretense of going to an 
 afternoon service at a church, lie took her to another church, and outside 
 the church said to her suddenly, "You must come into the church and marry 
 me, or I will blow my brains out, and you will be responsible." She testi- 
 fied that she was so alarmed that she did not know what she was doing, and 
 went into the church, where the ceremony of marriage was performed, and 
 she signed the register. Respondent had previously obtained a license, on a 
 false declaration as to his own age and as to the petitioner's residence, and 
 had made arrangements at the church for the marriage to be performed 
 that day. The vicar who pei^ormed the ceremony stated that the petitioner 
 went ^rough it without showing any signs of unwillingness, repeated the re- 
 sponses in an audible tone, and signed the register in a clear, firm hand. 
 The marriage was never consummated, and the parties never saw each other 
 afterwards, though they corresponded, but always on the footing of cousins, 
 and not as husband and wife. Petitioner never told her parents or friends 
 of the marriage, because, as she said, she did not regard it as binding. Re- 
 spondent, who did not appear in the suit, admitted that he had only mar- 
 ried petitioner for her money, and that he did not care for her. There was 
 evidence that the petitioner was of a weak, impressionable character, with 
 not much power of resistance to a stronger will, but that she was not par- 
 ticularly disposed to fall into a ''hysterical state," in the medical sense of 
 the term. It was held that the facts were insufficient to rebut the presump- 
 tion of consent, that the marriage was valid, and that the suit must be dis- 
 missed. Cooper V. Crane, [1891] Prob. Div. 369. 
 
 *» Ante, p. 10. As to error, see 2 Kent, Comm. 77 ; Benton v. Benton, 1 
 Day (Conn.) Ill; Fielding's Case, Burke, CeL Trials, 63, 78. 
 
Ifi- MAREIAQB (Ch. 1' 
 
 essarily avoid it ; for there can, in such a case, be no mutual con- 
 sent. If a person should intend to marry one person, for instance, 
 and by mistake should marry another, there would be no consent, 
 and therefore no valid marriage.""* 
 
 There is no mistake in identity, which will afford ground to avoid 
 the marriage, if there has merely been an assumption of a false 
 name without false personation.^^ 
 
 Void or Voidable — Ratification 
 
 . Marriages induced by fraud or duress, or entered into under mis- 
 take are sometimes said to be void, and not merely voidable; but 
 ^this is not true. They are not absolutely void, but voidable at the 
 (^option of the party deceived, coerced, or mistaken.'^ If that party 
 chooses to avo id t he mafrriage, he or she may do so, and thereby 
 render it void( ab initi^ ^^and no suit for nullity is necessary. The 
 other party clearly cannot avoid the marriage, for he would not be 
 permitted to set up his own fraud or wrong to defeat it, and he 
 could not set up a mistake on the part of the other party, of which 
 the latter did not complain.'^ If the party coerced or deceived — 
 and it would seem true, also, in the case of mistake — recognizes the 
 marriage as valid, and cohabits with the other party, after discov- 
 ery of the fraud, or when no longer under the duress, the marriage 
 cannot afterwards be avoided."* /"Fraud, duress, or mistake cannot 
 
 •'o Meyer v. Meyer, 7 Ohio Dec. 627; Reg. v. Millis, 10~ Clark & F. 534, 
 785; Rex v. Inhabitants of Burton-upon-Trent, 3 Maule & S. 537; Stayte v. 
 Farquharson, 3 Addams, Ecc. 2S2. See, also, Delpit v. Young, 51 La. Ann. 
 923, 25 South. 547, holding that error as to the chastity of a wife before her 
 marriage is not a "mistake in the person," within Eev. Civ. Code, arts. 91, 
 110. 
 
 51 Meyer v. Meyer, 7 Ohio Dec. 627. 
 
 02 Jordan v. Missouri & K. Tel. Co., 136 Mo. App. 192, 116 S. W. 432 ; 
 Bostick V. State, 1 Ala. App. 255, 55 South. 260. 
 
 53 Farley v. Farley, 94 Ala. 501, 10 South. 646, 33 Am. St. Rep. 141. 
 
 54 Schwartz v. Schwartz. 20 111. App. 516; Steimer v. Stelmer, 37 Misc. 
 "Rep. 26, 74 N. Y. Supp. 714; Leavitt v. Leavitt, 13 Mich. 452; Millar v. 
 
 Millar, 175 Cal. 797, 167 Pac. 394, L. R. A. 191SB, 415, Ann. Cas. 1018R, 184; 
 Koehler v. Koehler, 137 Ark. 302, 209 S. W,. 283; Hampstead v. Plaistow, 
 49 N. H. 84; Shepherd v. .Shepherd, 174 Ky. 615, 192 S. W. 058; Sher- 
 man V. Sherman, 174 Iowa, 145, 156 N. W. 301; Boutterie v. Demarest, 
 120 La. 278, 52 South. 492, 27 L. B. A. (N. S.) 805; Scott v. Shufeldt, 
 5 Paige (N. Y.) 43. In Schwartz v. Schwartz, supra, a man sought to 
 avoid a suit by a woman for separate maintenance by showing that hia 
 marriage was procured by duress of imprisonment for seduction under promise 
 of mari'iage. It was held that his claim could not be sustained, even though 
 the arrest was unlawful, where the evidence showed that after the marriage 
 he approved and ratified it, and never denied its validity until the suit for 
 
§ 12) MENTAL CAPACITY OF THE PARTIES 17 
 
 be set up by third persons to defeat the marriage^" These consid- >t- 
 erations are sufficient to show that the marriage is not void, but 
 voidable only. No decree of nullity, however, is necessary, unless 
 required by statute. The marriage, as already stated, is sufficiently 
 avoided if it is repudiated on discovery of the fraud or mistake, or 
 when released- from the duress. 
 
 ' MENTAL CAPACITY OF THE PARTIES 
 
 11. To constitute a valid marriage, the parties must be capable of 
 
 intelligently consenting. They may be incapable of intelli- 
 gent consent by reason of 
 
 (a) Insanity or intoxication. 
 
 (b) Nonage. 
 
 SAME— INSANITY AND INTOXICATION 
 
 12, A marriage is void, in the absence of a statute, if either party, 
 
 by reason of defect or disease of the mind, was incapable 
 of intelligently consenting. The parties must have been 
 mentally capable of understanding the nature and conse - 
 quences of marriage. The same rule applies where a party 
 is drunk at the time of the marriage. In most states, by 
 statute, such marriages are declared voidable, and not 
 void; and in some states they are held voidable only, in- 
 dependently of any statute. 
 
 separate maintenance was bronght. There is no ratification of a marriage 
 Invalidated by duress by subsequent cohabitation submitted to while the duress 
 is still operative. Avakian v. Avakian, 69 N. J. Eq. S9, 60 Atl. 521. To the 
 same effect is Fowler v. Fowler, 131 La. 1088, 60 South. 694. A woman'a 
 fraudulent representations as to her reputation and virtue, inducihg mar- 
 riage, are not waived nor .condoned by cohabitation, where she^ continues her 
 misconduct, over husband's objection. Entsminger v. Entsminger, 99 Kan. 
 362, 161 Pac. 607. That defendant permitted his wife to live in the same 
 house with him for 17 months is not a confirmation of the marriage, so as 
 to bar annulment for her fraud, consisting of her infection with chronic 
 
 gonorrhea. O v. C? , 158 Wis. 301, 148 N. W. 865, 5 A. L, R. 1013. 
 
 Be McKinney v. Clarke, 2 Swan (Tenn.) 321, 58 Am; Dec. 59; Farley v. Far- 
 ley, 94 Ala. 501, 10 South. 646, 33 Am. St. Rep. 141. "If a marriage may be 
 annulled tox> ft:aud, it must be such a fraud as operates upon one or the 
 other of the immediate parties to the contract, and has the legal effect of 
 vitiating the contract between the parties ab initio. But, as respects stran- 
 gers, fraud cannot be predicated, of a' contract which the immediate parties 
 thereto may lawfully enier into, which no principle of municipal law for- 
 bids, or can restrain the consummation of." McKinney v. Clarke, supra. 
 TIFF.P.& D.Rel.(3d Ed.)— 2 
 
18 MAEEIAQB (Ch. 1 
 
 Insanity 
 
 Where by reason of defect of the mind, as in case of idiocy, or 
 disease of the mind, as in case of luna-cy, a person has not sufficient 
 mental capacity to give an intelligent consent, he or she cannot 
 enter into a valid marriage, for there can be no real consent."* 
 And this is true, though the insanity be only temporary, the person 
 generally being sane." What degree of mental defect or disease 
 is sufficient to invalidate a marriage is a question as to which the 
 authorities are somewhat at variance. The rule generally laid down 
 is that the party must be able to understand the nature of mar- 
 riage, and its consequences."' This makes the test whether there 
 is sufficient mental capacity to give an intelligent consent. "If the 
 incapacity be such that the party be incapable of understanding the 
 nature of the contract itself, and incapable, from mental imbecility, 
 to take care of his or her own person or property, such person 
 cannot dispose of his or her own person and property by the matri- 
 monial contract, any more than by aliy other contract." "* Mere 
 mental weakness, if it does not deprive the party of capacity to 
 understand and appreciate the consequences of the step he is taking, 
 does not affect the validity of a marriage."" Nor is its validity af- 
 
 se Foster v. Means, Speer, Eq. (S. C.) 569, 42 Am. Dec. 332 ; Hagenson v. 
 Hagenson, 258 111. 197, 101 N. K. 606 ; Dunphy v. Dunphy, 161 Cal. 87, 118 
 Pac. 445 ; Holland v. Riggs. 53 Tex. Civ. App. 367, 116 S. W. 167 ; True v. 
 Banney, 21 N. H. 52, 53 Am. Dec. 164 ; Inliabitants of Middleborough v. Inhab- 
 itants of Eoohester, 12 Mass. 364, and cases hereafter cited. The common- 
 law rule that a marriage contracted by an insane person is void for want 
 of assent has been changed by Code Miss. 1906, § 1669, par. 8, providing that 
 Insanity or idiocy is a ground for divorce, if the complaining party did not 
 know of the infirmity. Wilson v. Wilson, 104 Miss. 347, 61 South. 453. And 
 see In re .Tansa's Estate, 169 Wis. 220, 171 N. W. &47, construing the Wis- 
 consin statute declaring epileptics incapable of contracting marriage, 
 
 07 Parker v. Parker, 6 Eng. Ecc. E. 165. 
 
 08 Browning v. Reane, 2 Phillim. Ecc. 70 ; Chapline v. Stone, 77 Mo. App. 
 523 ; True v. Eanney, 21 N. H. 52, 53 Am. Dec. 164 ; Inhabitants of Middle- 
 borough V. Inhabitants of Rochester, 12 Mass. 363; Anonymous, 4 Pick. 
 (Mass.) 32; Inhabitants of Atkinson v. Inhabitants of Medford, 46 Me. 510; 
 Ward V. Dulaney, 23 Miss. 410 ; Coleman v. Coleman, 85 Or. 99, 166 Pac. 47 ; 
 Waughop V. Waughop, 92 Wash. 69, 143 Pac. 444; Adamsi v. Scott, 93 Neb. 
 537, 141 N. W.. 148 ; Dunphy v. Dimphy, 161 Cal. 380, 119 Pac. 512, 38 L. R. 
 A. (N. S.) 818, Ann. Gas. 1913B, 1230; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 
 Am. Dec. 275 ; McElroy's Case, 6 Watts & S. (Pa.) 451 ; Lewis v. Lewis, 44 
 Minn. 124, 46 N. W. 323, 9 L. K. A. 505, 20 Am. St. Rep. 559, Oooley Cas. 
 Persons and Domestic Relations, 17 ; Pyott v. Pyott, 191 111. 280, 61 N. E. SS. 
 affirming 90 111. App. 210. 
 
 BO Browning v. Reane, 2 Phillim. Ecc. 70. 
 
 80 2 Kent, Oomm. 76 ; Browning v. Reane, 2 Phillim. Ecc. 70 ; Portsmouth 
 v. Portsmouth, 1 Hagg. Etc. 355 ; Kern v. Kern, 51 N. J. Eq. 574, 26 Atl. 837 ; 
 
§ 12) MENTAL CAPACITY OP THE PASTIES 19 
 
 fected by insanity or insane delusions or impulses on other sub- 
 jects.'^ As was said in a case in which it was sought to annul a 
 iparriage on the ground that the woman was a kleptomaniac: "It 
 was not proved, nor is it found by the court; that she was not oth- 
 erwise sane, or that her mind was so affected by this peculiar pro- 
 pensity as to be incapable of understanding or assenting to the mar- 
 riage contract. Whether the subjection of the will to some vice or 
 uncontrollable impulse, appetite, passion, or propensity be attrib- 
 uted to disease, and be considered a species of insanity, or not, yet, 
 as long as the understanding and reason r'emain so far unaffected 
 and unclouded that the afflicted person is cognizant of the nature 
 and obligations of a contract entered into by him or her with an- 
 other, the case is not one authorizing a decree avoiding the con- 
 tract. Any other rule would opeii the door to great abuses." '^ 
 
 The insanity must exist at the time of the marriage, to avoid it, 
 neither prior nor subsequent insanity being sufficient.*^ Nor are 
 both prior and subsequent insanity sufficient, if the marriage took 
 place in a lucid interval. °* As said by the Illinois court ; "It would 
 be a harsh rule indeed that would permit a man who has married 
 a woman who later in life becomes insane to put her away on ac- 
 count of her inexpressibly sad misfortune. It is to the credit of 
 our common humanity that there cannot be found, in all the range 
 of judicial proceedings, a single case that holds that insanity is or 
 
 could be a cause for divorce." °° 
 • 
 Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, judgment modified on rehearing 
 71 Neb. 33, 100 N. W. 311; Adams v. Scott, 93 Neb. 537, 141 N. W. 148. 
 That complainant, a girl of 14, "knew nothing of the heavy responsibilities 
 incident to the marital status,"' and "was young, inexperienced, unlearned, 
 and was persuaded and induced to enter into said marriage by defendant 
 without reflection or consideration on her pa:rt," does not show her mental 
 Incapacity. Greeni v. Green (Fla.) 80 South. 739. 
 
 81 2 Kent, Comm. 76 ; Portsmouth v. Portsmouth, 1 Hagg. Ecc. 355. 
 
 82 Lewis V. Lewis, 44 Minn. 124, 46 N. W. 323, 9 L. R. A. 505, 20 Am. ^t 
 Rep. 559, Cooley Cas. Persons and Domestic Relations, 17. 
 
 8 ■■'Turner v. Meyers, 1 Hagg. Consist. 414;,ParneIl v. Parnell, 2 Hagg. 
 Consist. 169 ; Banker v. Banker, 63 N. T. 409 ; Nonnemacher v. Nonnemach- 
 er, 159 Pa. 634, 28 Atl. 439 ; Smith v. Smith, 47 Miss. 211 ; Ryals v. Ryals, 
 130 La. 244, 57 South. 904 ; , Henderson v. Ressor, 141 Mo. App. 540, 126 S. 
 W. 203 ; Hamaker v. Hamaker, 18 111. 137, 65 Am. Dec. 705 ; Lloyd v. Lloyd. 
 66 111. 87; Wertz v. Wertz, 43 Iowa, 534; Baker v. Baker, 82 Ind. 146. 
 
 84 Turner v. Meyers, 1 Hagg. Consist. 414; Parker v. Parker, 6 Eng. Ecc. 
 R. 165; Smith v. Smith, 47 Miss. 211; Banker v. Banker, 63 N. T. 409; 
 Nonnemacher v. Nonnemacher, 159 Pa. 634, 28 Atl. 439. 
 
 8 Lloyd V. Lloyd, 66 111. 87. In a very few states it has been made a 
 ground for divorce. 
 
20 MAEEIAGB (Ch- 1 
 
 Intoxication 
 
 Intoxication of a person at the time of his or her marriage avoids 
 it for the same reason that insanity avoids it — because there is no 
 real consent.*" The intoxication, however, must be so excessive as 
 to prevent the party from giving an intelligent consent. If he un- 
 derstands the nature and consequences of his act, the fact that he 
 is under the influence of liquor will not avail to avoid the mar- 
 riage.®' I 
 
 Void or Voidable — Ratification 
 
 Some of the authorities hold that insanity renders a marriage 
 voidable, and not void ; that a person on regaining his reason, even 
 temporarily, may affirm a marriage celebrated while he was insane, 
 and thereby render it absolutely binding."* And there are authori- 
 ties to the effect that, if the other party knew he was marrying an 
 insane person, he cannot avoid the marriage."" This is the proper 
 view, but it must be conceded th at bv the weight of authority, in 
 the absence of a statute providing otherwise, a marriage -bv a lu- 
 natic or idiot or drunken person is not merely voidable, but a liso- 
 lutely void, and therefore incapable of ratifiratinn, nr nf having any 
 effec t whateve r. ''" Ferhapsin most states this rule has been chang- 
 ed by statute, and such marriages are made voidable only, and not 
 void.'^ 
 
 88 Barber v. People, 203 111. 543, 68 N. B. 93; Gillett v. Gillett, 78 Micb. 
 184, 43 N. W. 1101 ; Prlne -v. Prine, 36 Fla. 676, 18 South. 781, 34 L. R. A*. 
 87 ; Dunphy v. Dunphy, 161 Oal. 380, 119 Pac. 512, 38 L. R, A. (N. S.) 818. 
 Ann. Gas. 1913B, 1230; Clement v. Mattison, 3 Rich. (S. O.) 93. And see, 
 as to contracts generally, 2 Kent, Comm. 451; Clark, Cont. p. 274. 
 
 67 Prine v. Prine, 36 Fla. 676, 18 South. 781, 34 L. R. A. 87; Scott v. 
 Paquet. L. R. 1 P. C. 5S2. 
 
 »« Dwight, Pers. & Pers. Prop. 143; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 
 Am. Dec. 275; Wiser v. Lockwood's Estate, 42 Vt. 720; Setzer v. Setzer, 97 
 N. C. 252, 1 S. B. 558, 2 Am. St. Rep. 290. Some hold the jna'Trlage void until 
 it is ratified. Cole v. Cole, supra ; while others hold it valid until is It avoid- 
 ed, Wiser v. Lockwood's Estate, supra. 
 
 eo Hancock v. Peaty, L. R. 1 Prob. & Div. 335, 341. 
 
 70 Schouler, Dom. Rel. § 18 ; Inhabitants of WInslow v. Inhabitants ol 
 Troy, 97 Me. 130, 53 Atl. 1008 ; Sims v. Sims, 121 N. C. 297, 28 S. E. 407, 40 
 L. R. A. 737, 61 Am. St. Rep. 665 ; Inhabitants of Middleborough v. Inhab- 
 
 71 Stim. Am. St. Law, § 6113; Inhabitants of Goshen v. Inhabitants of 
 Richmond, 4 Allen (Mass.) 458; Wiser v. Lockwood's Estate, 42 Vt. 720; 
 Wattors V. Waiters, 108 N. C. 411, S4 S. B. 703 ; Bruns v. Cope, 182 Ind. 2S9, 
 105 N. E. 471; In re Gregorson's Estate. 160 Cal. 21, 116 Pac. 60, L. R. a. 
 1016C, 691, Ann. Cas. 1912D, 1124 ; Hamaker y. Hamaker, 18 111. 137, 65 Am. 
 Dec. 705. V 
 
§ 13) MENTAL CAPACITY OP THE PARTIES 21 
 
 SAME— NON-AGE 
 
 13. The parties must be of an age at which the law deems them^ ca- 
 pable of intelligently consenting to enter into the marriage 
 relation. At common law the age of consent is 14 for 
 males, a^d 12 for females, but in most states the age of 
 consent has been raised by statute. The effect of mar- 
 riages by infants is as follows: 
 
 (a) Marriages after the age of consent are binding. 
 
 (b) Marriages between the age of consent and the age of seven 
 
 years are voidable on or before reaching the age of con- 
 sent, and by either party. 
 
 (c) Marriages below the age of seven are absolutely void. 
 
 The age of consent — that is, the age at which an infant could 
 consent to marriage, so that it would be binding — was fixed at 
 common law at 14 for males and 12 for females ; '" but the common 
 law has been changed in this respect in many states by statute.''' 
 
 itants of Rochester, 12 Mass. 363; Foster v. Means, Speer, Bq. (S. O.) 569, 
 42 Am. Dec. 332; Inhabitants of TJnlty v. Inhabitants of Belgrade, 76 Me. 
 419; Holland v. Riggs, 53 Tex. Civ. App. 367, 116 S. W. 167; Crump v. 
 Morgan, .38 N. O. 91, 40 Am. Dec. 447; Rawdon v. Rawdon, 28 Ala. 565; 
 Jenkins v. Jenkins' Heirs, 2 Dana (Ky.) 102, 26, Am. Dec. 437; Keyes v. 
 Keyes, 22 N. H. 553; Ward v. Dnlaney, 23 Miss. 410. ]$ut see Gross v. 
 Gross, 96 Mo. App. 486, 70 S. W. 303, which was a suit to annul a marriage 
 on the ground of insanity of defendant existing when the mar^age was 
 solemnized, and it appeared that the parties lived together many years and 
 that defendant had lucid Intervals. It was held that the continuance of 
 the marital relations was a ratiflcation of the nuptial contract by both par- 
 ties. See. also. Barber v. People, 203 111. 543, 68 N. E. 93, holding that Intox- 
 ication does not render the marriage void, but only voidable. 
 
 Tsparton v. Hervey, 1 Gray (Mass.) 119; Bennett v. Smith, 21 Barb. 
 (N. T.) 439 ; Browning v. Browning, 89 Kan. 98, 130 Pac. 852, U R. A. 1916C, 
 1288, Ann. Gas. 1914C, 1288; Cushman v. Cushman, 80 Wash. 615, 142 Pac. 
 26, L. R. A. 1916C, 732 ; Green v. Green (Fla.) 80 South. 739. At common law 
 the age at which persons are deemed competent to cSntract valid marriage 
 was 14 years for the man and 12 years for the woman, and in the absence of 
 statute this rule is adopted as a part of the common law ofrthis state. Green 
 V. Green (Fla.) 80 South. 739. There being no statute prescribing the age at 
 which persons may marry in Kansas, the common law, fixing the ages at 
 14 and 12, respectively, governs. Browning v. Browning, 89 Kan. 98, 130 
 Pac. 852, Ia, R. A. 1916C, 737, Ann. Cas. 1914C, 1288. 
 
 73 To be able to contract a marriage a male person must, under Civ. Code 
 Ga. 1910, i 2931, be at least 17 years of age. Morgan v. Morgan, 148 Ga. 
 "625, 97 S. E. 075, 4 A. L. R. 925. Statutes designating the age at which per- 
 
22 MAEEIAGE (Ch. 1 
 
 In some states the age of consent has been raised as high as 21 
 for males and 18 for females.'* Marriages entered into by infants 
 who are above the age of consent are binding on them, and cannot 
 be avoided on their becoming of age." Marriages entered into 
 above the age of 7 and below the age of consent may be avoided on 
 reaching the age of consent, or before." Marriages entered into 
 where, either party is below 7 are absolutely void." The fact that 
 marriages entered into above the age of consent cannot, like the 
 contracts of infants, be avoided on their attaining their majority, 
 rests on the peculiar nature of marriage — on the fact that it is not a 
 contract, but a status, involving important and far-reaching prop- 
 erty rights, and interests of children and third persons, which pub- 
 
 sons may contract marriage are to be regarded as raising the age of consent 
 as established by thfe common law. Section 3 of the Illinois Marriage Act, 
 providing that a male minor of the age of IS and upwards and a female mi- 
 nor of the age of 16 and upwards may marry under certain conditions, was 
 intended by the Legislature to raise the age of consent or discretion from 14 
 and 12 years respectively, as established by the common law, to 18 and 16 
 years respectively. Matthes v. Matthes, 198 111. App. 515. 
 
 74 Rem. & Bal. Code Wash. §§ 7150, 7162, 7164, providing that marriage 
 may be entered into by males of the age of 21 and females of the age of IS, 
 that a marriage may be avoided by a party incapable of consenting thereto, 
 and that a marriage license shall not issue except on proof of legal age or 
 consent of parents, did not change the common-law rule that males of 14 and 
 females of 12 may consent to marriage. Oushman v. Cudunan, SO Wash. 
 615, 142 Pac. 26, L. R. A. 19160, 732. 
 
 73 2 Kent, Oomm. 78; Oo. Litt. 79b; 1 Bl. Comm. 436; Reeve, Dom. Rel. 
 236 ; Parton v. Hervey, 1 Gray (Mass.) 119 ; White v. Hill, 176 Ala. 480, 58 
 South. 444; Pool v. Pratt, 1 D. CJhip. (Vt.) 254; Governor v. Rector, 10 
 Humph. (Tenn.) 61. And see Reifschneider v. Reifschneider, 144 111. App. 
 119, judgment affirmed 241 111. 92, 89 N. E. 255. 
 
 78 2 Kent, Comm. 7S; Co. I.itt. 33a, 79b; 2 Com. Dig. "Baron and Feme," 
 5 ; 1 Bl. Comm. 436 ; Beggs v. State, 55 Ala. 108 ; McDeed v. McDeed, 67 111. 
 545; Maori v. Macri, 177 App. Div. 292, 164 N. Y. Supp. 112; Mundell v. 
 Coster, SO Misc. Rep. 337, 142 N. Y. Supp. 142 ; Koonee v. Wallace, 52 N. C. 
 194; Eliot v. Eliot, 77 Wis. 634, 46 N. W. 806, 10 L. R. A. 568, Oooley Cas. 
 Persons and Domestic Relations, 19 ; notes 81, 82, infra. In Aymar v. Roff, 
 3 Johns. Ch. (N. Y.) 4B, where a man had married a girl under 12 years of 
 age, and the girl dedared her Ignorance qf the nature and consequences of 
 the marriage, and her dissent to it, a court of equity, on a bill by her next 
 friend, ordered her to be placed under Its protection as a ward of the court, 
 and forbade the man to have any intercourse or correspondence with her, 
 under pain of contempt. But see Hardy v. State, 37 Tex. Cr. R. 55, 38 S. W. 
 615, holding that, under a statute providing that males under 16 years and 
 females under 14 years of age .shall not marry, there can be no common-law 
 marriage with a girl of 10. 
 
 77 2 Burn, Ecc. Law, 434a. 
 
§ 13) MENTAL CAPACITY OF THE PARTIES 23 
 
 lie policy cannot allow to be jeopardized at the will of either party.^' 
 But an infant's promise to marry, though he be over the age of 
 consent, may be avoided by him like any other contract, for none 
 of the complications arising from the assumption of the status of 
 marriage are thereby affected.'" The marriage of infants between 
 the age of 7 and the age of consent is not absolutely void, but is 
 only inchoate and imperfect, and if or> coming to the age of consent, 
 but not before reaching that age,^" they agree to continue together, 
 they need not be married again,'^ and their continuing to live to- 
 gether after reaching the age of consent is a sufficient affirmance.'^ 
 
 It has been held in Ohio that a marriage by an infant undpr the 
 age of consent is void until affirmed. "Marriages in this state," 
 it was said by the Ohio court, "contracted by male persons under 
 the age of 18, and female persons under 14, are invalid, unless con- 
 firmed by coh^abitation after arriving at those ages, respectively. 
 Such a marriage not thus confirmed does not subject a party to pun- 
 ishment for bigamy for contracting a subsequent marriage while the 
 first husband or wife is living." '* 
 
 This doctrine of the Ohio courts is however contrary to reason 
 and the weight of authority. Thus it was held in Arkansas that, 
 under an indictment for bigamy, evidence that the first marriage 
 was within the age of legal consent is no defense, unless it also be 
 shown that it was annulled by a court of competent jurisdiction. 
 "By the common law," it was said, "if he did not disaffirm the 
 
 T8 Schouler, Dom. Rel. § 20; 1 Blsfr. Mar., Div. & Sep. § 566; Parton v. 
 Hervey, 1 Gray (Mas.s.) 119. ; , , 
 
 7» Holt,v. Ward Clarencieux, 2 Strange, 937; Hunt v. Peake, 5 Cow. (N. 
 Y.) 475, 15 Am. Dec 475; Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76, 10 
 Am. Dec. 709; Clark, Cont. 231, note, and cases cited. 
 
 80 Eliot V. Eliot, 77 Wis. 6.34, 46 N. W. 806, 10 L. R. A. 568, Cooley Oas. 
 Persons and Domestic Relations, 19. 
 
 81 1 Bl. Comm. 436; Elliott v. Gurr, 2 Phillim. Ecc. 16; Parton v! Hervey, 
 1 Gray (Mass.) 119; Koonce v. Wallace, 52 N. C. 194; Pilzpatrick v. Mtz- 
 patrick, 6 Nev. 63 ; State v. Cone, 86 Wis. 498, 57 N. W. 50. 
 
 82 2 Dane Abr. 301; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Terr- 
 ky V. Tierrky, 96 Misc. Rep. 594, 160 N. T. Supp. 1016 ; Americus Gas & Elec- 
 tric Co. V. Coleman, 16 Ga. App. 17, 84 S. E. 493 ; Powers" v. Powers, 138 Ga. 
 65, 74 S. EL 759; Matthes v. Mashes, 198 111. App. 515; Herrman v. H«rr- 
 man, 93 Misc. Rep. 315, 156 N. T. Supp. 688 ; I/ong v. Baxter, 77 Misc. Rep. 
 630, 138 N. Y. Supp. 505 ; State v. Parker, 106 N. C. 711, 11 S. B. 517. See, 
 also, Oanale y. People, 177 111. 219, 52 N. E. 310, holding that such marriage 
 may be disaffirmed after arriving at the age of consent by ceasing to co- 
 habit and marrying again. 
 
 88 Shafher v. State, 20 Ohio, 1. And see Crapps v. Smith, 9 Ga. App. 400, 
 71 S. E. 501. 
 
24 MAKKIAGE (Ch. 1 
 
 marriage on reaching the age of legal consent, but cohabited with 
 the wife after arriving at such age, it would be an affirmance of 
 the marriage." '* 
 
 Similarly in Alabama the Ohio doctrine has been drsapproved as 
 opposed to the great weight of authority ; the court saying : "The 
 statute serves the purpose of its enactment when construed as op- 
 erating merely an enlargement of the age of consent from that 
 fixed by the common law — of 12 in females and 14 in males — 
 to 14 in females and 17 in males. The marriage of persons not 
 of the statutory age is, as was the marriages between persons not of 
 the age of consent at common law, imperfect, becoming perfect 
 only by affirmance when the requisite age is obtained, until this 
 affirmance, it is a marriage in fact, and the second marriage of 
 either party is bigamy." *° 
 
 The right to disaffirm a marriage on the ground of nonage is not 
 limited to the party who was under the age of consent, where the 
 other party was of a suitable age; but extends also to the latter. 
 In this respect, marriage differs from contract.** A person under 
 
 81 Walls V. State, n2 Ark. 565. 
 
 8 5 Beggs V. State, 55 Ala. 108. And see State v. Cone, 86 Wis. 493, 57 N. 
 W. 50, where the Ohio doctrine was re.1ected as unsupported "either in rea- 
 son or authority." The rule that such marriages are voidable only is also 
 recognized in Willits v. Wlllits, 76 Xeb. 228, 107 N. W. 379, 5 L. R. A. (N. 
 S.) 767, 14 Ann. Cas. 883 ; People v. Souleotes, 26 Cal. App. 309, 146 Tac. 903 ; 
 Mitchell V. Mitchell, 63 Misc. Rep. 580, 117 N. T. Supp. 671 ; Ex parte Hollo- 
 peter, 52 Wash. 41, 100 Pac. 159, 21 r...R. A. (N. S.) 847, 132 Am. St Rep. 952, 
 17 Ann. Cas. 91 ; Hunt v. Hunt, 23 Okl. 490, 100 Pac. 541, 22 L. R. A. (N. S.) 
 1202; People v. Ham, 20(i 111. App. 543; Owen v. Coffey, 201 Ala. 531, 78 
 South. 885 ; Levy v. Downing, 213 Mass. 334, 100 N. E. 638 (construing New- 
 Hampshire Statute). 
 
 88 Schouler, Dom. Rel. § 20; 1 Bish. Mar. & Div. § 149; Co. TLAtt. 79; 
 Shafher v. State, 20 Ohio, 1. But see People v. Slack, 15 Mich. 193. "The 
 next legal disability is want of age. This is sufficient to avoid all other 
 contracts, on account of the imbecility of judgment in the parties contract- 
 ing. A fortiori, therefore, it ought to avoid this, the most Important con- 
 tract of any. Therefore, if a boy under 14 or a girl under 12 years of age 
 marries, this marriage is only inchoate and imperfect ; and, when either of 
 them comes to the age of consent aforesaid, tliey may disagree, and declare 
 the mari'iage void, without any divorce or sentence in the spiritual court. 
 This is founded on the civil law. But the canon laws pays a greater regard 
 to the constitution, than tlie age, of the parties ; for, if they are 'habiles ad 
 matrimonlum, it is a good marriage, whatever their age may be. And in 
 our law it is so far a marriage that if, at the age of consent, they agr-ee to 
 continue together, they need not be married again. If the husband be of 
 years of discretion, and the wife under 12, when she comes to years of disr 
 cretion he may disagree as well as she may, for in contracts the obligation 
 
§ 14) CAPACITY OF PAETIES OTHEEWISE THAN MENTALLY 25 
 
 the age of consent is not estopped from avoiding his marriage on 
 reaching the age of consent by the fact that he fraudulently misrep- 
 resented his age." 
 
 A marriage that is voidable because of nonage differs from a 
 marriage that is voidable because of a canonical disability, in that 
 it can be avoided by the act of the party or parties, and no decree of 
 nullity is necessary.'* As will be seen in another section, statutes 
 raising the age of consent, though they may declare a marriage 
 under the age of consent to be "void," are construed to mean 
 "voidable," and to leave the effect of the marriage the same as at 
 common law.*' Consent of parents, as an essential of marriage, is 
 referred to in another place."" 
 
 CAPACITY OF PARTIES OTHERWISE THAN MENTALLY 
 
 14. The parties must be capable, in other respects than mentally, 
 of entering into the marriage relation. There must be 
 no impediment of 
 
 (a) Relationship. , 
 
 (b) Physical incapacity. 
 
 (c) Civil conditions. 
 
 (d) Prior marriage. 
 
 must be mutual; both must be bound, or neither; and so it is, vice versa, 
 when the wife is of years of discretion, and the husband under." 1 Bl. 
 Comm. 436. It will be noticed that, in thus stating the law, Blackstone 
 not only erroneously classes marriage as a contract, but by doing so he falls 
 Into error in. attempting to support the rule allowing marriage to be avoid- 
 ed by either party, though one of them was above the age of consput, by 
 reference to principles of the law of contract; that is, he erroneously as- 
 sumes that, where an adult makes a contract with an infant, he, as wpU as 
 the infant, may avoid it. This tends to show the difficulty and danger in 
 considering marriage as a contract. 
 
 87 See Eliot v. Eliot, 81 Wis. 295, 51 N. W. 81, 15 L. R. A. 259. 
 
 8 8 Oo. Litt. 79; 2 Burn, Bcc. Law, 500; 1 Bl. Oomm. 436; Walls v. State, 
 32 Ark. 565, 570 ; McDeed v. McDeed, 67 111. 545 ; People v. Slack, 15 Mich. 
 -193. But see Owen v. CofCey, 201 Ala. 531, 78 South. 885; People v. Ham, 
 206 111. App. 543; Mitchell v. Mitchell, 63 Misc. Rep. 580, 117 N. T. Supp. 
 671, holding that suit for annulment is necessary. The marriage is voidable 
 only at the election of one of the parties, and not by a parent of one of them. 
 Wood v. Baker, 43 Misc. Rep. 310, 88 N. Y. Supp. 854. 
 
 80 Post, p. -56. »" Post, p. -37. 
 
26 MABRIAGE (Ch. 1 
 
 SAME— RELATIONSHIP 
 
 IS. The parties must not be within the prohibited degrees of kin- 
 dred, either by consanguinity or affinity. In the absence of 
 a statute, there can be no valid marriage within the Leviti- 
 cal degrees; that is, within the third degree of civil reck- 
 oning, inclusive, or, in other words, nearer than first cous- 
 ins. In the absence of statutory provision to the contrary, 
 such marriages are voidable, and not void. The whole 
 subject is now very generally regulated by statutes, defin- 
 ing the limits within which relations may not marry, and 
 generally declaring marriages within the prohibited de- 
 grees absolutely void. 
 
 In England, prior to the reign of Henry VIII, the limits of the 
 disqualification of relationship had been extended so far by the 
 ecclesiastical courts that it became necessary to pass a statute de- 
 fining the limits within -yi/hich relations should not be permitted 
 to intermarry ; and the statute of 32 Hen. VIII, c. 38, was enacted. 
 This statute prohibited the ecclesiastical courts from impeaching 
 "any marriage without the Levitical degrees." Under this statute 
 the impediment of consanguinity has been treated "as applicable 
 ,to the whole ascending and descending line, and, further, as ex- 
 tending to the third degree of the civil reckoning, inclusive ; or, in 
 other words, so as to prohibit all marriages nearer than first cous- 
 ins." *^ Under this statute the impediment of consanguinity, or 
 blood relationship, would extend to a man's grandmother, his fa- 
 ther's or mother's sister, his mother, or his daughter or grand- 
 daughter. And it would extend to a- woman's grandfather, her 
 father's or mother's brother, her father, her son, or her grandson. °^ 
 The statute is old enough to have become a part of our common 
 law, and it has been so recognized. In most states, however, stat- 
 utes have been enacted."' In some states the limits have been 
 
 81 Schonler, Dom. Eel. (5th Ed.) § 16. 
 
 82 Schouler, Dom. Rel. (5th Ed.) § 16 ; Harrison v. State, 22 Md. 468, 85 
 Am. Dec. 658; Bowers v. Bowers, 10 Kich. Eq. (S. 0.) 55J, 73 Am. Dec. 99. 
 See, also, Welsberg v. Welsberg, 112 App. Div. 231, 98 N. T. Supp. 260 
 
 03 These statutes will not be construed as retroactive. Weisberg v. Wels- 
 berg, 112 App. Div. 231, 98 N. T. Supp. 260; In re Wittick's Estate, 164 
 Iowa, 485, 145 N. W. 913 ; Schofleld v. gchofield, 51 Pa. Super. Ot 504. 
 
§ 15) CAPAOITT OP PARTIES OTHERWISE THAN MENTALLY 27 
 
 extended.®* The rule of consanguinity applies as well to the half 
 blood as to the whole blood/" and to illegitimate as well as legiti- 
 mate issye.*" 
 
 Affinity is the relationship by marriage between the husband and 
 the blood relations of the wife, and between the wife and the blood 
 relations of the husband. "A husband is related by affinity to all 
 the consanguinei of his wife, and, vice versa, the wife to the hus- 
 band's consanguinei ; for, the husband and wife bein,g considered 
 one flesh, those who are related to the one by blood are related to 
 the other by affinity." *' In English law the same impediment to 
 marriage existed in the case of relationship by affinity as in the 
 case of relationship by blood, so that a man could not marry his 
 grandfather's wife, his wife's grandmother, his father's brother's 
 wife, his mother's brother's wife, his wife's father's sister, his wife's 
 mother's sister, his stepmother, his wife's mother, his wife's sister, 
 or his stepdaughter. And a woman could not marry her grand- 
 mother's husband, her husband's grandfather, her father's sister's 
 husband, her mother's sister's husband, her husband's father's 
 
 3* See statutes of the several states. In some states the prohibition includes 
 first cousins. See, for example, Act Pa. June 24, 1901 (P. L. 597) ; Eev. 
 St. 111.' 1874, c. 89, § 1, as amended by Laws 1887, p. 225 ; Act Iowa, July 4, 
 1909, c. 212. Kem. & Bal. Code Wash. § 7151, prohibiting first cousins from 
 marrying, is not repealed by implication by section 3455, defining Incest, or 
 by Laws Ex. Sess. 1909, c. 16, prohibiting marriages in certain cases ; there 
 being nothing in the last act indicating an intent to legalize marriages be- 
 tween persons nearer than second cousins. State v. Nakashima, B2 Wash. 
 686, 114 Pac. 894. Ann. Qas. 1912D, 220. A marriage between a man and 
 the daughter of his half-sister is within the prohibition of section 1 of 
 chapter 89 of the statutes (Kurd's Eev. St. 111. 1913 ; Jones & A. Ann. St. 
 1913, par. 7345) of marriages between uncles and nieces. Williams v. Mc- 
 Keene, 193 111. App. 615. 
 
 "5 Reg. V. Inhabitants of Brighton, 1 Best & S. 447. In most states there 
 are special enactments to this effect. 
 
 38 Reg. V. Chadwick, 11 Q. B. 173; Horner v. Liddiard, 1 Hagg. Consist. 
 337, 352; Morgan v. State, 11 Ala. 269. Contra, State v. RosweU, 6 Oonn. 
 446. 
 
 97 Gibs. Cod. 412; 1 Bl. Comm. 435; Butler v. GastriU, Glib. Ch. 156; 
 Chinn v. State, 47 Ohio St. 575, 26 N. E. 986, 11 L. R. A. 630; Blodget 
 V. Brinsmaid, 9 Vt. 27. In some states It has been held that relationship 
 by aflBnlty is terminated by the dissolution by death or divorce of the 
 marriage which produced It. Blodget v. Brinsmaid, 9 Vt. 27; Kelly v. Neely, 
 12 Ark. 657, 56 Am. Dec. 288; Bock v. Bock, 148 Iowa, 223, 125 N. W. 1009, 
 L. R. A. 19160, 752, Ann. Cas. 1912B, 1025. The contrary rule was adopted 
 in Spear v. Robinson, 29 Me. 531 ; and in Paddock v. Wells, 2 Barb. Oh. (N. X.) 
 331, it is said that the relationship is not terminated by death if living issue 
 of the marriage survives. 
 
28 MARRIAGE (Ch. 1 
 
 brother, her husband's mother's brother, her stepfather, her hus- 
 ba:nd's father, her husband's brother, or her stepson.'^ In this coun- 
 try many of the courts have refused to follow the English law in 
 this respect. In Vermont, for instance, it was held that a man 
 could marry his deceased wife's sister."" In most states the impedi- 
 ment of relationship both by consanguinity and affinity is entirely 
 regulated by statute. 
 
 Consanguinity and affinity, being canonical disabilities, render 
 marriages voidable, and not void,^ unless the rule has been changed 
 by statute; and all 'the principles governing voidable marriages ap- 
 ply. In some states, by statute, marriage within the prohibited de- 
 grees of kindred are now declared' to be not merely voidable, but 
 void." But statutes declaring such marriages to be void have been 
 held in some courts to be simply declaratory of the English law, 
 that is, to mean that they are void only upon a decree of court dur- 
 ing the lives of the parties. ° 
 
 »8 Schouler, Dom. Eel. § 16; Hill v. Good, Vaughan, 302; Harris v. 
 Hicks, 2 Salk. 548. 
 
 »» Blodget V. Brinsmaid, 9 Vt. 27 ; Kelly v. Neely, 12 Ark. 657, 56 Am. 
 Dec. 28S. 
 
 1 Schouler, Dom. Rel. § 16 ; Harrison v. State, 22 Md. 468, 85 Am. Dec. 
 658 ; Schofield v. Schofleld, 51 Pa. Super. Ct. 564 ; Tyler v. Andrews, 40 
 App. D. 0. 100; State v. Smith, 101 S. C. 293, 85 S. E. 956, Ann. Oas. 1917C, 
 149; Boylan v. Deinzer, 45 N. J. Eq. 485, 18 Atl. 119. A marriage between 
 relations within forbidden degrees will be annulled at the instance of either 
 party, though the applicant may have knowingly and willfully entered into 
 the same. Martin v. Martin, 54 W. Va. 301, 46 S. E. 120, 1 Aim. Cas. 612. 
 
 2 Stim. Am. St. Law, § 6112 ; Mcllvaln v. Scheiblay, 109 Ky. 455, 59 S. W. 
 498; Fearnow v. .Tones, 34 Okl. 694, 126 Pac. 1015, L. K. A. 19160, 720. 
 Since the passage of Act .Tune 24, 1901 (P. L. 597), prohibiting the marriage 
 of first cousins, such a marriage is incestuous. McClain v. McClain, 40 Pa. 
 Super. Ct. 248. Under Rev. St. 1874, c. 89, § 1, as amended by Laws 1887, p. 
 225, and Cr. Code, div. 1, § 157 (Rev. St. 1874, c. 38), marriage of first cousins 
 are void, and not merely voidable and there can be no estoppel against the 
 right to allege the invalidity of the marriage. Arado v. Arado, 281 111. 123, 
 117 N. E. 816, 4 A. L. R. 28. 
 
 s Harrison v. State, 22 Md. 468, 85 Am. IDec. 658 ; Bonham v. Badgley, 2 
 Giiman (111.) 622; Parker's Appeal, 44 Pa. 309; Com. v. Perryman, 2 Leigh 
 (Va.) 717; Bowers v. Bowers, 10 Rich. Eg. (S. O.) 551, 73 Am. Dec. 99; post, 
 p. 66. 
 
§ 16) CAPACITY OP PARTIES OTHERWISE THAN MENTALLY 29 
 
 SAME— PHYSICAL INCAPACITY 
 
 16. The parties must be physically capable; but capacity to copu- 
 late, not fruitfulness, is the test. The incapacity must e x- 
 ist a t the time of the marriage. Neither party can set up 
 his or her own impotence to defeat the marriage. In the 
 absence of statutory provision to the contrary, impotence 
 renders a marriage voidable , and not void. 
 
 The parties to a marriage must be. physically capable. Ability 
 to propagate the species is not, however, as might well be supposed, 
 the test of the requisite physical condition. If the parties are able 
 to have sexual intercourse, the requirements of the law' are satisfied. 
 Copula, not fruitfulness, is the test.* There must be an impotentia 
 copulandi on the part of the man or of the woman, proceeding from 
 malformation, frigidity, disease, or some other like cause. The law 
 does not fail to recognize the procreation of children as one of the 
 ends of martimony, but it does refuse to annul a marriage merely 
 because one of the parties is not capable of procreation.'^ Impo- 
 tence must exist at the time of the marriage, to avoid it. If a party 
 is physically capable of copulation at the time of the marriage, his 
 or her subsequent impotency does not avoid the marriage.' Nei- 
 ther party will be permitted to set up his or her own impotence as 
 a ground of nullity.'^ Nullity of marriage has been decreed on the 
 
 *D V. A , 1 Rob. Ecc. 279, 298; Anon., Deane & S. 296; Briggs 
 
 V. Morgan, 3 Phillim. Ecc. 325 ; Devanbagh v. Devanbagh, 5 Paige (N. T.) 
 
 554, 28 Am. Dee. 443 ; E v. T , 33 Law J. Mat. Oas. 37 ; J. G. v. H. G., 
 
 33 Md. 401, 3 Am. Rep. 183; Keith v. Keith, Wright (Ohio) 518; Powell v. 
 Powell, 18 Kan. 371, 26 Am. Rep. 774 ; Bascomb v. Bascomb, 25 N. H. 267 ; 
 Korton v. Norton, 2 .\iken (Vt.) 188 ; Schroter v. Schroter, 56 Misc. Rep. 69, 
 106 N. Y. Supp. 22 ; Wendel v. Wendel, 30 App. Div. 447, 52 N. T. Supp. 72. 
 The wife's epilepsy, limiting, but not preventing, copulation, is not, in the 
 absence of fraud, ground for annulment of the marriage. Elser v. Elser 
 (Sup.) 160 N. Y. Supp. 724. Under Code Civ. Proc. § 1752, authorizing an ac- 
 tion to annul a marriage on the ground of physical incapacity by the party 
 who is physically incapable, a wife may sue to annul her marriage because 
 of her physical incapacity resulting from a hjsterical condition accompanied 
 by mental and emotional disturbances following attempts to consummate the 
 marriage. Anonymous v. Anonymous, 69 Misc. Rep. 48», 126 N. Y. Supp. 149. 
 
 5 D V. A — ^1 Rob. Ecc. 279, 298 ; Schroter v. Schroter, 56 Misc. Rep. 
 
 69, 106 N. Y. Supp. 22. 
 
 6 w V. H— — , 30 Law J. Prob. Mat. & Adm. 73 ; D v. A^ — , 1 Rob. 
 
 Elcc. 279, 298. 
 
 ' Norton v. Seton, 3 Phillim. Ecc. 147. 
 
30 MAKEIAGB ' (Ch. 1 
 
 ground of impotence, even when it was curable, where the party- 
 refused to submit to the necessary treatment to effect a cure.* 
 Except in such a case, however, curable impotejace does not render 
 a marriage invalid. 
 
 In the absence of a statutory provision to the contrary, impo- 
 tence, being a canonical impediment, renders a marriage voidable, 
 and not absolutely void,* and the principles applicable to. voidable 
 marriages apply.^° In some states this rule has been changed by 
 statute.^ ^ But the same rule of . construction applies tb these stat- 
 utes as has been mentioned as applicable to statutes in regard to 
 relationship. As to whether a court of equitv has jurisdiction, in 
 this country, to annul a marriage on the ground of impotence is 
 shown in another place. ^^ 
 
 In several states statutes have been enacted for the purpose of 
 preventing the marriage of persons afflicted with certain diseases.^' 
 
 SAME— CIVIL CONDITIONS-rRACE, ETC. 
 
 17. The parties must not be disqualified by civil conditions. Thus, 
 in many states, marriages between negroes, Indians, or 
 Chinese, and white persons, are prohibited. 
 
 At common law, and in England to-day, no impediment to mar- 
 riage exists on account of race, color, religion, or social rank.^* In 
 many of the United States, by statute, however, marriages between 
 white persons and negroes, and in a few states between white per- 
 
 sDevanbagh v. Devanbagh, 6 Paige (N. Y.) 175; L v. L , 7 Prob. 
 
 Div. 16. 
 
 Schouler, Dom. Eel. § .19; T. v. M. L. R., 1 Prob. & Div. 31; A. v. B., 
 L. R. 1 Prob. & Div. 559 ; T. v. D., L.. R. 1 Prob. & Div. 127 ; Cavell v. Prince, 
 L. E, 1 Exch. 246; Anonymous, 24 N. J. Eq. 19; P. v. S., 37 Law J. Mat. 
 Cas. 80; Smith v. Moorehead, 59 N. O. 360; Bennett v. Bennett, 169 Ala. 
 
 618, 53 South. 986, L. R. A. 19160, 693; G v. G , 67 N. J. Ea 30 
 
 56 Atl. 736. 
 
 10 Post, p. 56. 
 
 11 Stim. Am. St. Law, § 6112. 
 
 12 Post, p. 69. • y , 
 
 isComp. Laws N. D. 1913, §§4373-4378; St. Wis. 1913, § 2339m. See 
 Peterson v. Widule, 157 Wis. 641, 147 N. W. 966, 52 L. JR, A. (N. S.) 778, 
 Ann. Cas. 1918B, 1040. But see McGill v. McGill, 179 App. Div. 343, 166 n! 
 Yj Supp. 397, reversing judgment 99 Misc. Rep. 86, 163 N. Y. Supp 462 
 
 I* 1 Bish. Mar., Div. & Sep. { 691. 
 
§ 18) CAPACITY OP PARTIES OTHERWISE THAN MENTALLY 31 
 
 sons and Indians or Chinese, are unlawful.^' These statutes, as 
 a rule, make such unions absolutely void, without the necessity of 
 a judicial sentence, and leave either party free to enter into a sub- 
 sequent marriage. 
 
 Slavery was formerly a further impediment. It was a rule that 
 a slave, being a' chattel, could not make any contract; and, as 
 marriage was in the nature of a contract, slave marriages were 
 therefore absolutely void.^' But they have now very generally 
 been legalized by statute, where cohabitation continued after eman- 
 cipation.^^ 
 
 SAME— PRIOR MARRIAGE 
 
 18. In the absence of statutory provision t9 the contrary, a valid 
 and undissolved prior marriage of either party renders a 
 marriage absolutely void ab initio, even though the parties 
 may have acted in good faith, and in a reasonable belief 
 that the former spouse was dead or divorced. 
 
 It is the rule of the common law that a valid and undissolve d 
 prinr tnarriafrp h y 'either "<" hoth of the parties js an impedimen t 
 to marriage . An attempted second marriage while a valid prior 
 marriage is undissolved is absolutely vQJd. and void ab initio, 
 without any decree of court; the children of the second marriage 
 being illegitimate, and the marriage being subject to collateral 
 attack by any person, and at any time.^* It is immaterial whether 
 
 10 Stim. Am. St. Haw, § 6112 F. See State v. Brady, 9 Humph. (Tenn.) 74; 
 State V. Hooper, 27 N. C. 201; Succession of Minvlelle, 15 La. Ann. 342; 
 Bailey v. Fiske, 34 Me. 77 ; Jones v. Jones, 45 Md. 144 ; Honey v. Clark, 
 37 Tex. 687; In re Walker's Estate, 5 Ariz. 70, 46 Pac. 67; Wllhur v. 
 Bingham, 8 Wash. 35, 35 Pac. 407, 40 Am. St. Rep. 886; Carter v. Veith, 
 139 La. Si34, 71 South. 792. Rev. St. 1909, § 82S0, declaring marriages be- 
 tween white persons and negroes absolutely void, has reference to blood 
 or race, and not to color. A negro, within the statute, means a person 
 haying oneieighth portion or more of negro blood. Marre v. Marre, 181 
 Mo. App. 198, 168 S. W. 636. 
 
 18 Hall V. U. S., 92 U. S. 27, 23 L. Ed. 597; Cantelou v. Doe, 56 Ala. 519; 
 Napier v. Church, 132 Tenn. HI, 177 S. W. 56; Lemons v. Harris, 115 Va. 
 809, 80 S. B. 740 ; Merrick v. Betts, 214 Mass. 223, 101 N. B. 131 ; Howard 
 V. Howard, 51 N. C. 235. 
 
 ITA slave marriage entered into in Georgia Is ratified by continued cohab- 
 itation after emancipation. Meyers v. Meyers, 139 La. 752, 72 South. 218. 
 
 18 Riddlesden v. Wogan, Cro. Eliz. 858 ; Pride v. Earls of Bath, 1 Salk. 121 ; 
 Plant V. Taylor, 7 HurL & N. 211 ; Miles v. Chilton, 1 Rob. Ecc. 687 ; In re 
 Wilson's Trusts, L. R. 1 Eq. 247 ; Zahorka v, Geith, 129 Wis. 498, 109 N. W. 
 
32 MAEBIAGB (Ch. 1 
 
 the former marriage' were formal or ceremonial marriage or an 
 informal or common-law marriage." And since such marriages 
 are void they cannot be ratified.^" 
 
 The common-law rule has been changed in some states by stat- 
 utes providing, in substance, • that if the second marriage was 
 entered into in good faith, and on a reagpnable belief that the 
 former spouse was dead, the marriage is m prply vnidahle^ be coming 
 v^id only on a declaration of nullity by a coiirt of competent iurj s- 
 dictionr^^ and that the issue shall be deemed the legitimate children 
 
 552; Glass v. Glass, 114 Mass. 563; Martin's Heirs v. Martin, 22 Ala. 86; 
 Fenton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. Dec. 244; Heffner v. Heffner, 
 23 Pa. 104; Jackson v. Claw, 18 Johns. (N. T.) 347; Blossom v. Barrett, 37 
 N. T. 434, 97 Am. Dec. 747 ; Higgins v. Breen, 9 Mo. 497 ; Grigsby v. Keib 
 (Tex. Civ. App.) 139 S. W. 1027; Ponder v. Graham, 4 Fla. 23; TefEt v. 
 Tefft, 35 Ind. 44; Rhea v. Rhenner, 1 Pet. 105, 7 L. Ed. 72; Drummond v. 
 Irish, 52 Iowa, 41, 2 N. W. 622, Cooley Cas. Persons and Domestic Relations, 
 24; Dare v. Dare, 52 N. J. Eq. 195, 27 Atl. 654; Reeves v. Reeves, 54 111. 
 332; Cartwright v. McGown, 121 111. 388, 12 N. B. 737, 2 Am. St. Rep. 105; 
 Emerson v. Shaw, 56 N. H. 418; Janes v. Janes, 5 Blackf. (Ind.) 141; Mc- 
 Oaig V. State, 16 Ala. App. 5S1, 80 South. 155; Williams v. State, 44 Ala. 
 24; Succession of Thomas, 144 La. 25, 80 South. 186; Clark v. Clark, 115 
 Miss. 726, 76 South. 638; Butler v. Butler, 93 Misc. Rep. 258, 157 N. Y. 
 Supp. 188; McCullen v. McCullen, 162 App. Div. 599, 147 N. Y. S. 1069: 
 Evatt V. Mier, 114 Ark. 84, 169 S. W. 817, L. R. A. 1916C, 759 ; Goset v. Goset, 
 112 Ark. 47, 164 S. W. 759, L. R. A. 1916C, 707; Duenser v. Supreme Coun- 
 cil of Royal Arcanum, 262 lU. 475, 104 N. E. 801, 51 U R. A. (N. S.) 726, 
 reversing judgment 178 111. App. 648; In re Huston's Estate, 48 Mont. 524, 
 139 Pac. 458. 
 
 i?Applegate v. Applegate, 4S N. J. Eq. 116, 17 Atl. 293; Cunningham v. 
 Cunningham (Tex. Civ. App.) 210 S. W. 242 ; Walton v. Walton (Tex. Civ. 
 App. )^ 191 S. W. 188. 
 
 20 Pettlt V. Pettit, 105 App. Div. 312. 93 N. Y. Supp. 1001 ; In re Graham 
 (N. J. Eq.) 46 Atl. 224; Blanke v. Southern Ry. Co., 82 Miss. 203, 35 South. 
 570; Earle v. Earle, 141 App. Div. 611, 126 N. Y. Supp. 317; McCullen v. 
 McCullen, 162 App. Div. 599, 147 N. Y. Supp. 1069; Kinney v. Tri State 
 Tel. Co. (Tex. Civ, App.) 201 S. W. 1180. But see Stein v. Stein, 66 111. App. 
 526 ; People v. Booth, 121 Mich. 131, 79 N. W. 1100. The party at fault may 
 be estopped to allege the invalidity of the second marriage. Shrader v. Shra- 
 der, 119 Miss. 526, 81 South. 227. And see Rav^ son v. Rawson, 156 Mass 
 578, 31 N. E. 653. 
 
 21 Vigno V. Vigno (K. H.) 106 Atl. 285 ; Stokes v. Stokes, 198 N. Y. 301, 91 
 N. B. 793 ; Grand Lodge Knights of Pythias v. Barnard, 9 Ga. App. 71, 70 
 S. E. 678 ; Brown v. Brown, 153 App. Div. 645, 138 N. Y. Supp. 602 ; Barker 
 V. Barker, 172 App. Div. 244, 158 N. Y. Supp. 413, modifying judgment 92 
 Misc. Rep. 390, 156 N. Y. Supp. 194; Taylor v. Taylor, 63 App. Div. 231, 
 71 N. Y. Supp. 411; In re Del Genovese's Will, 56 Misc. Rep. 418, 107 
 N. Y. Supp. 1033, affirmed 136 App. Div. 894, 120 N. Y. Supp. 1121; 
 Chittenden v. Chittenden, 68 Misc. Rep. 192, 123 N. Y.. Supp. 629. There 
 must, however, be reasonable efforts made to ascertain the facts. Gall v. 
 
§ 18) CAPACITY OF PARTIES OTHERWISE THAN MENTALLY 33 
 
 of the parent not previously married.''^ In the absence of a statu- 
 tory provision, however, the good faith of either or both of the 
 parties is immaterial, in so far as the validity of the marriage and 
 legitimacy of the children are concerned,^' though in some juris- 
 dictions a bona fide belief in the death of a husband or wife, under 
 certain circumstances, may be a defense in a prosecution for big- 
 amy.^* 
 
 When a man and woman are legally married the woman continues 
 to be his wife, notwithstanding her subsequent bigamous marriage 
 during his lifetime. ^° On the other hand, a void marriage, of 
 course, is no marriage at all, and can impose no restraint on the 
 right of the parties to marry again. Therefore, where an attempted 
 marriage is void, a second marriage is perfectly valid, though the 
 
 Gall, 114 N. Y. 109, 21 N. E. 106, Cooley Cas. Persons and Domestic Re- 
 lations, 28. Where the second marriage occurred before the expiration of 
 five years from the time of the abandonment, It is invalid from the begin- 
 ning. In re Stanton (Sur.) 123 N. Y. Supp. 458. A woman whose husband 
 ■had left her for over seven years may lawfully contract a common-law mar- 
 riage. In re Spondre, 98 Misc. Eep. 524, 162 N. Y. Supp. 943. 'Under Civ. 
 Code 1902, § 2661, declaring that all marriages contracted while either of the 
 parties has a former spouse living shall be void, but that the section shall 
 not extend to a person whose husband or wife shall have been absent for 
 seven years, the one not^ knowing the other to be living at that time, a 
 second marriage, by a woman whose ^rst husband was living, though he had 
 been absent for more than seven years, was not valid, for, under the consti- 
 tutional provision that no divorce shall be allowed, marriages are indissolu- 
 ble, though the second marriage was entitled to a presumption of validity 
 until the existence of the former spouse was established. Davis v. Whitlock, 
 90 S. C. 233, 73 S. E. 171, Ann. Cas. 1913D, 588. Where the husband was 
 in the penitentiary, and the wife had not seen, him for five years, there was 
 no presumption of his death to support the good faith of the wife in marry- 
 ing again. Alixanian v. Allxanian, 28 Misc. Eep. 638, 59 N. Y. Supp. 1068. 
 Under Penal I/aw (Consol. Laws, c. 40) § 511, Domestic Relations Law (Con- 
 sol. Laws, c. 14) §§ 6, 58, and in view of Prison Law (Consol. Laws, c. 43, as 
 amended by Laws 1910, e. 703) §§ 212, 214, 215, and section 218 as amend- 
 ed by Laws 1912, c. 286, relating to a parole on discharge of persons given 
 an indeterminate sentence, the wife of one convicted of second degree mur- 
 der, sentenced to life imprisonment with a minimum term of 2p years, could 
 again marry. Gargan v. Sculley, 82 Misc. ReJ). 667, 144 N. Y. Supp. 205. 
 
 22 Stim. Am. St. Law, § 6116. 
 
 2.S In re Wilson's Trusts, L. R. 1 Eq. 247 ; Glass v. Glass, 114 Mass. 563 ; 
 People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260 ; ICenley v. Kenley, 2 Yeates , 
 (Pa.) 207 ; Heffner v. HeSener, 23 Pa. 104 ; ' Thomas v. Thomas, 124 Pa. 646, 
 17 Atl. 182; Webster v. Webster, 5S N. H. 3 ; Pain v. Pain, 37 Mo. App. 110. 
 
 24 aark, Cr. Law, 309. See, also, Wilson v. Allen, 108 Ga. 275, 33 S. E. 975. 
 
 2 5 Estes V. Merrill, 121 Ark. 361, 181 S.' W. 136. 
 TIFF.P.& D.Eel.(3d Ed.)— 3 
 
34 MARKIAGE (Ch. 1 
 
 first marriage has not been judicially annulled.^" But, for obvious 
 reasons, it is desirable to have the validity of the prior marriage 
 determined by sentence of nullity. A divorce a. mensa et thoro, of 
 course, does not entitle either party to marry again ; but it is other- 
 wise, in the absence of statutory prohibition, in the case of a divorce 
 a vinculo matrimonii. The divorce must of course be absolute. 
 A decree nisi is not sufficient to entitle either party to marry. ^^ 
 And of course the divorce must be valid. ^^ The presumption as to 
 dissolution of the prior marriage by death or divorce are considered 
 in a subsequent section.^^ 
 
 ••Restrictions on Right to Marry after Divorce 
 
 In many states statutes have been enacted placing restrictions 
 on the right to marry after even an absolute divorce, as by pro- 
 hibiting a marriage within a certain time,^" or in case of divorce for 
 
 2 e Patterson v. Gaines, 6 How. 550, 12 L. Ed. 553; Bruce v. Burke, 2 Ad- 
 dams, Ecc. 471, 2 Eng. Ecc. E. 381 ; Reg. v. Chadwick, 12 Jur. 174, 11 Q. B. 
 173; Appleton v. Warner, 51 Barb. (N. T.) 270; In re Bethune's Will, 4 Dom. 
 Sur. (N. T.) 392; McCaffrey v. Benson, 38 La. Ann. 198; Reeves v. Reeves, 
 5ll 111. 332; Drummond v. Irish, 52 Iowa, 41, 2 N. W. 622, Cooley Oas. Per- 
 sons and Domestic Relations, 24 ; Dare v. Dare, 52 N. J. Eq. 195, 27 Atl. 654 ; 
 In re Eichhoff's Estate, 101 Cal. 600, 36 Pac. 11 ; In re Harrington's Estate, 
 140 Cal. 244, 73 Pac. 1000, 98 Am. St. Rep. 51, rehearing denied 140 Cal. 294, 
 73 Pac. 1131, 74 Pac. 136. 
 
 2 7 Cook V. Cook, 144 Mass. 163, l6 N. E. 749; Pettit v. Pettit, 105i App. Div. 
 312, 93 N. Y. Supp. 1001 ; Wilson v. Burnett, 105 Misc. Rep. 279, 172 N. T. 
 Supp. 673 ; Dallman v. Dallman, 159 Wis. 480, 149 N. W. 137 ; In re Elliott's 
 Estate, 165 Cal. 339, 132 Pac. 439. 
 
 2 5 McCreery v. Davis, 44 S. C. 195, 22 S. E. 178, 28 L. R. A. 655, 51 Am. 
 St. Rep. 794 ; State v. Westmoreland, 76 S. C. 145^ 56 S. E. 673, 8 L. R. A. 
 (N. S.) 842. 
 
 soPost, p. 62. 
 
 ao Code Ala. 1907, § 3811 (sixty days) ; Hurd's Rev. St. 111. 1909, e. 40, § 
 la (one year; but the party guilty of adultery two years) ; Code Supp. Iowa 
 1913, § 3181 (one year) ; Gen. St. Kan. 1915, § 7582 (six months) ; Rev. Laws 
 Mass. 1902, c. 152, § 21 (guilty party two years); Gen. St. Minn. 1913, § 
 7090 (sis months); Rev. Codes Mont. 1907, §3657 (two jears; guilty party 
 three years) ; Gen. Laws Vt. 1917, § 3602 (guilty party three years) ; Rem. 
 Code, Wash. 1915, §§ 991, 992 (six months or pending appeal) ; Code W. Va. 
 1916, c. 64, § 14 (Code Supp. 1918 [sec. 3648a]) (six months; the guilty party 
 may be further prohibited for any period not to exceed Ave years) ; St. Wiis. 
 'l915, § 2330 (one year); Comp. St. Wyo. 1910, § 3951 (one year). In the 
 District of Columbia only the innocent party may marry. Code of Law D. 
 C. 1911, § 966. In several states the period within which the parties may 
 marry may be fixed by the court in the decree. Comp. Laws Mich. 1915, § 
 11434 ; Comp. Laws, N. D. 1913, § 4379. In Georgia the period may be fixed 
 by the jury. Park's Ann. Civ. Code Ga. 1914, § 2964. In Oregon the parties 
 may not marry within the time for taking an appeal. L. O. L. 1910, § 515. 
 
§ 18) CAPACITY OP PARTIES OTHERWISE THAN MENTALLY 35 
 
 adultery t)y prohibiting the guilty party from marrying his or her 
 paramour, or from marrying at all in the lifetime of the other 
 party." Though in a few jurisdictions it has been held that under 
 such statutes a marriage within the period specified is voidable 
 only and not void/^ the general rule, sustained by the great weig ht 
 of authority, is that marriages entered into in contravention oL lke 
 provisions of the statute, are absolutely void.'^ But it has been 
 
 Of course, in those states where the statute provicles for an interlocutory 
 decree of divorce to hecome final only after the lapse of a fixed period the 
 parties cannot marry until the decree becomes final. See Oiv. Code Cal. §§ 
 61, 132; Laws Colo. 1917, pp. 183, 184; Code Del. 1915, § 3026; Rev. Laws 
 Mass. 1902, c. 152, § 18 ; Rev. St. Neh. 1913, § 1606 ; 2 Comp. St. N. J. 1910, 
 p. 2035, §§ 20, 21 ; Gen. Laws R. I. 1909, c. 24T, § 19. Kurd's Rev. St. 1913, 
 c. 40, § la, prohibiting remarriage of divorced persons within one year, since 
 it applies alike to all persons similarly situated, does not violate Const. VS. 
 S. Amend. 14, § 1, as to equal protection of the laws. Hobbs v. Hobbs, 279 
 m. 163, 116 N. E. 629. 
 
 31 Hemingway's Code Miss. 1917, § 1412; Laws N. Y. .1909, c. 19 (Oonsol. 
 Laws, c. 14) § 8; Oiv. Code S. T>. 1913, p. 11, § 83; Code Tenn. 1918, § 4228; 
 Code Va. 1904, § 2265. 
 
 32 Park v. Barron, 20 Ga. 702, 65 Am. Dec. 641 ; State v. Yoder, 113 Minn. 
 503, 130 N. W. 10, L. R. A. 1916C, 686 ; ' Lee v. Lee, 150 Iowa, 611, 130 N. 
 W. 128; Crawford v. State, 73 Miss. 172, 18 South. 848, 35 L. R. A. 224; 
 "Woodward v. Blake, 38 N. D. 38, 164 N. W. 156, L. R. A. 1918A, 88, Ann. 
 Cas. 1918E, 552. A statutory prohibition to the effect that, in case of di- 
 vorce on the ground of adultery, the guilty party can never marry his or 
 her accomplice in adultery, is directed against marriage between the guilty 
 spouse and the particular person or persons who are designated in the pe- 
 tition for the divorce, or described in the evidence in support of it, and upon 
 which petition and evidence the decree of divorce Is founded. Succession 
 of Hernandez, 46 La. Ann. 962, 15 South. 461, 24 L. R, A. &S1. 
 
 33 White V. White, 105 Mass. 325. 7 Am. Rep. 526; State v. Shattuck, 69- 
 Vt. 403, 38 Atl. 81, 40 L. R. A. 428, 60 Am. St. Rep. 936; Ovltt v. Smith, 
 68 Vt. 35, 33 Atl. 769, 35 L. R: A. 223; Rand v. Bogle, 197 111. App. 476; 
 Gardner v. Gardner, 98 Misc. Rep. 411, 162 N'. Y. Supp. 365; State v. Fenn, 
 47 Wash. 561, 92 Pac. 417, 17 L. R. A. (N. S.) 800; ICvans v. Evans, 200 Ala. 
 329, 76 South. 95; Szlauzis v. Szlauzis, 255 111. 314, 99 N. E. 640, L. R. A. 
 1916C, 741, Ann. Cas. 1913D, 4.54; Wllhite v. WiUilte. 41 Kan. 1.'54, 21 Pac. 
 173 ; In re Elliott's Estate, 165 Cal. 339, 132 Pac. 439 ; Wilson v. Cook, 256 111. 
 460, 100 N. E. 222, 43 L. R. A. (N. S.) 365 ; Snell v. Snell, 191 111. App. 239 ; 
 Succession of Gabisso, 119 La. 704, 44 South. 438, 11 L. R. A. (N. S.) 1082, 
 121 Am. St. Rep. 529 ; Hooper v. Hooper, 67 Ot. 187, 135 Pac. 205, 525 ; State 
 v. Sartwell, 81 Vt. 22, 69 Atl. 151, 130 Am. St. Rep. 1017; Hunt v. Hunt, 
 201 111. App. 615 ; Thomas v. James (Okl.) 171 Pac. 855 ; Eaton v. Eaton, 66 
 Neh. 676, 92 N. W. 995, 60 L. R. A. 605, 1 Ann. Cas. 199. Where the defend- 
 ant was granted a decree of divorce during the forenoon of June 6, 1913, 
 and was married to the complainant at 5 o'clock p. m., June 6, 1914, such 
 marriage was within the provision of the statute prohibiting marriage "with- 
 in one year from the time" a decree of divorce from a prior marriage was 
 
36 MARRIAGE (Ch. 1 
 
 held in California that a statute prohibiting divorced persons' from 
 marrying within the period in which an appeal may be taken ap- 
 plies only to residents of the state, and does not render invalid a 
 ftiarriage within the state of nonresidents, one or both of whom 
 had been divorced in some other state.'* The effect of marriages 
 contracted outside of the state to evade the law restricting the 
 right to marry after divorce will be considered in a subsequent 
 section.'^ 
 
 FORMALITIES IN CELEBRATION— INFORMAL 
 MARRIAGES 
 
 19. The parties should comply with the statutory law in the cele- 
 
 bration of marriage, but noncompliance does not neces- 
 sarily render the marriage invalid— At common law no 
 formalities are necessary; mutual consent, express or im- 
 plied from conduct, being sufficient. 
 
 20. If a statute prescribes formalities for the celebration of mar- 
 
 riage, it is not to be construed as rendering an informal 
 marriage invalid, unless it expressly so declares. 
 
 2L Informal marriages may be per verba de praesenti — ^that is, by 
 consent to live together presently as husband and vnie — 
 no copula being necessary. It is sometimes said that there 
 may be a marriage per verba de futuro cum copula — that 
 is, by an agreement to marry in the future, followed by 
 copula in pursuance thereof. But it is believed that by the 
 '- better authority a marriage can be effected per verba de 
 
 futuro cum copula only when the circumstances are such 
 that a present agreement at the time of the copulaj;an be 
 implied. 
 
 In most, if not all, of the states, statutes have been enacted pre- 
 scribing certain formalities to be observed in the celebration of 
 
 granted, as the first day should be excluded, and the last included. Kahlo 
 V. Kahlo, 204 111. App. 409. 
 
 a* People v. "Woodhy, 22 Cal. App. 674, 136 Pac. 312. It has heen held In 
 Oregon that a marriage by the only party entitled to appeal from the de- 
 cree of divorce is not void. Wallace t. McDaniel, 50 Or. 378, 117 Pac. 314, 
 I>. E. A. 1916C, 744. But compare Hooper v. Hooper, 67 Or. 187, 135 Pac 
 205, 525. 
 
 ,86 See post, p. 71. 
 
§§ 19-21) FORMALITIES IN CELEBRATION 37 
 
 marriages. These statutes usually provide either for the publica- 
 tion of banns or the giving of public notice of the intention to 
 marry in some other manner,'" or for the issuance of a license to 
 marry by some officer authorized to issue such licenses.'^ In many, 
 if not all, states, consent of the parents or guardians is required 
 where the parties are minors. 
 
 The statutes relating to ceremonial marriages also contain 
 express provisions as to the persons who may solemnize marriages, 
 such as priests, ministers of the gospel, judges, justices of the 
 peace, or other magistrates.'* Usually the person solemnizing the 
 marriage is required to make a return thereof to some officer desig- 
 nated to keep a record thereof.'" It is not essential to the v.alidity 
 of a ceremonial marriage that any particular form of words be 
 used. It is sufficient if the words employed show a present agree- 
 ment.*" 
 
 Though the formalities prescribed by the statutes should be sub- 
 stantially complied with,*^ in a large majority of the states the 
 statutes, unless expressly made mandatory by their terms, or by 
 necessary implication, are construed as directory merely, and not 
 mandatory,*^ and a marriage, if in other respects valid, is not in- 
 
 36 See Rev. St. Me. 1916, c. 64, § 4, providing that residents of the State 
 intending to be joined in marriage shall cause notice of their intentions to 
 be recorded in the ofSce of the clerk of the town in which each resides, or, 
 if nonresidents, the notice shall be recorded in the office of the clerk of the 
 town in which the parties intend to have the marriage solemnized. 
 
 8 7 See the statutes of the several states. 
 
 3 8 See the statutes of the several states. In Indiana the mayor of a city 
 may solemnize marriages. Burns' Ann. St. 1914, § 8361. In Florida a no- 
 tary public may act. Comp. Laws Fla. 1914, § 2575; and see also section 
 305. See, also, Civ. Code S. C. 1912, § 3751. Under the Georgia statute, the 
 ordinary is a judge, and may lawfully perform marriage ceremony. Dar- 
 row V. Darrow, 201 Ala. 477, 78 South. 883. 
 
 8.S See the statutes of the several states. 
 
 4 » Inhabitants of Milford v. Inhabitants of Worcester, 7 Mass. 48; In re 
 Richard, 133 Cal. 524, 65 Pac. 1034; Patterson v. Gaines, 6 How. 550, 12 
 L. Ed. 553 ; Beamish v. Beamish, 9 H. L. Cas. 274, 11 Bng. Rep. 735. Celebra- 
 tion of marriage may be proved by oral testimony Santiago v. Cruz, 19 Phil. 
 Rep. 145. 
 
 4iAct Alaska May 3, 1917 (Laws 1917, c. 56), in effect August 1, 1917; 
 Civ. Code Cal. § 55, as amended by Act March 26, 1895 (St. 1895, p. 121) ; 
 Rev. St. Ky. 1852, c. 47, § 2 ; Carroll's Ky. St. 1915, § 2097 ; Klenke v. Noon- 
 an, 118 Ky. 436, 81 S. W. 241 ; Estill v. Rogers, 64 Ky. (1 Bush) 62 ; Bashaw 
 V. State, 1 Xerg. (Tenn.) 177 ; Smith v. Bank, 115 Tenn. 12, 89 S. W. 392. 
 
 *2 Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78; State v. Zichfeld, 23 
 Nev. S04, 46 Pac. 802, 34 U R. A. 784, 62 Am. St. Rep. 800; Renfrow v. 
 
38 MAEEIAGB (Ch. 1 
 
 validated by a mere informality in its celebration. The mere fact 
 that the statute prescribes certain formalities does not render in- 
 valid a marriage in which those formalities are not strictly ob- 
 served.*' 
 
 Renfrew, 60 Kan. 277, 56 Pac. 534, 72 Am. St. Rep. .SnO, Oooley Cas. Persons! 
 and Domestic Relations, 25 ; State v. McGilvery, 20 Wash. 240, 55 Pac. 115 ; 
 Connors v. Connors, 5 Wyo. 433, 40 Pac. 968; In re Love's Estate, 42 Olcl. 
 478, 142 Pac. 305, L. R. A. 1915E, 109; Maggett v. Roberts, 112 N. C. 71, 16 
 S. E. 919 ; Shattuck v. Shattuck, 118 Minn. 60, 136 N. W. 410 ; Port v. Port, 
 
 . 70 111. 484; McKenna v. McKenna, 380 111. 577, 54 N. E. 641; Godfrey v. 
 Rowland, 16 Hawaii, 877; Feehley v. Feehley, 129 Md. 565, 99 Atl. 663, L. 
 R. A. 1917C, 1017; Gafdiner v. Manchester, 88 Me. 249, 33 Atl. 990; State 
 V. Walker, 36 Kan. 297, 13 Pac. 279, 59 Am. Rep. 556; Teter v. Teter, 101 
 Ind. ]39, 51 Am. Rep. 742; Landry v. Bellanger, 120 La. 962, 45) South. 957, 
 15 L. R. A. (N. S.) 463, 14 Ann. Cas. 952; In re Svendsen's Estate, 37 S. 
 D. 353, 158 N. W. 410. In the following cases the provisions of the statutes 
 of the respective states were held to be mandatory: Schumacher v. Great 
 Northern R. Co., 23 N. D. 231, 136 N. W. 85; Morrill v. Palmer, 68 Vt. 1, 
 as Atl. 829, 33 L. R. A. 411; Northfield v. Plymouth, 20 Vt. 582; Smith v. 
 North Memphis Savings Bank, 115 Tenn. 12, 89 S. W. 392 ; Offield v. Davis, 
 100 Va. 250, 40 S. E. 910. See, also, Beverlin v. Beverlin, 29 W. Va'. 782, 3 
 S. E. 36, and In re Meade's Estate, 82 W. Va. 650, 97 S. E. 127. In Holmes 
 v. Holmes,, 1 Sawy. 99, Fed. Cas. No. 6638, the United States Circuit Court 
 for the District of Oregon held that the provisions of the Oregon statute are 
 mandatory, but as the statement was not necessary to the decision it must 
 be regarded as dictum. Moreover, the views of the judge are contrary to 
 the principles laid down in Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826. 
 
 43Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826; Blackburn v. Crawford, 
 3 wan. 185, 18 L. Ed. 186 ; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 
 164; State v. Worthingham, 23 Minn. 528; Overseers of Poor of Town of 
 Nevi^bury v. Overseers of Poor of Town of Brunswick, 2 Vt. 151, 19 Am. Dec. 
 703 ; Bowman v. Bowman, 24 111. App. 165 ; Port v. Port, 70 111. 484 ; Par- 
 ton V. Hervey, 1 Gray (Mass.) 119; Hervey v. Moseley, 7 Gray (Mass.) 479, 
 66 Am. Dec. 915; Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742; Town of 
 Londonderry v. Town of Chester, 2 N. H. 268, 9 Am. Dec. 61 ; Dyer v. Bran- 
 nock, 66 Mo. 391, 27 Ani^ Rep. 359 ; Dumaresly v. Fishly, 3 A. ,K. Marsh. (Ky.) 
 368; Cannon v. Alsbury, 1 A. !k. Marsh. (Ky.) 76, 10 Am. Dec. 709; Steven- 
 son v. Gray, 17 B. Mon. (Ky.) 198 ; Holmes v. Holmes, 6 Lai 463, 26 Am. Dec. 
 482; Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78; State v. Zichfeld, 23 
 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800 ; Renfrow v. Ren- 
 frew, 60 Kan, 277, 56 Pac. 534, 72 Am. St. Rdip. 350, Cooley Cas. Persons and 
 Domestic Relations, 25 ; State v. McGilvery, 20 Wash. 240, 5oi Pac. 115 ; 
 Travers v. Reinhardt, 205 U. S. 428, 27 Sup. Ct. 563, 51 L. Ed. 865. See, also, 
 
 -Act Alaska May 3, 1917 (Laws 1917, c. 56), in effect Aug. 1, 1917; Code Miss. 
 1906, § 3249. Unless the statute expressly declares a marriage without the 
 consent of the parents or other requirements of the statute to be a nullity, 
 such statutes will be construed to be directory only in these respects, so that 
 the marriage will be held valid, though the disobedience of the statute may 
 entail penalties on the licensing or officiating officers. Reif Schneider v. Reif- 
 schneider, 241 111. 92, 89 N. E. 255, affirming judgment 144 111. App. 119. 
 
§§ 19-21) FORMALITIES IN CELEBRATION 39 
 
 If, however, the statute specifically or by necessary implication 
 so provides, a failure to comply with its provisions will render the 
 marriage void.** On the other hand, a marriage celebrated in 
 
 That consent of parents is not necessary to the validity of a marriage, even 
 though a statute prohibits a marriage without such consent, and imposes a 
 penalty for violation of its provisions, see Rex v. Inhabitants of Birmingham, 
 8 Barn. & C. 29 ; Sturgis v. Sturgis, 51 Or. 10, 93 Pac. 696, 151 L. E. A. (N.' 
 S.) 1034, 131 Am. St. Rep. 724 ; Inhabitants of Hiram v. Pierce, 45 Me. 367, 
 71 Am. Dec. 555; Parton v. Hervey, 1 Gray (Mass.) 119; Hervey v. Mose- 
 ley, 7 Gray (Mass.) 479, 66 Am. Dec. 515; Goodvyin v. Thompson, 2 G. Greene 
 (Iowa) 329; Smyth v. State, 13 Ark. 696; Holtz v. Dick, 42 Ohio St. 23, 51 
 Am. Rep. 791; WyckofC v. Boggs, 7 N. .J. Law, 138; Plargroves v. Thomp- 
 son, 31 Miss. 211 ; Cannon v. Alsbury, 1 A. K. Marsh. (Kf.) 76, 10 Am. Dec. 
 709; Browning v. Browning, 89 Kan. 98, 130 Pac. 852, L. R. A. 19160, 1288, 
 Ann. Gas. 1915A, 174 ; Hunter v. Milam (Cal.) 41 Pac. 332 ; In re Ambrose, 
 170 Cal. 160, 149 Pac. 43; People v. Ham, 206 111. App. 543. But see In 
 re McLaughlin's Estate, 4 Wash; 570, 30 Pac. 651, 16 L. R. A. 699. That 
 solemnization before a qualified minister or particular magistrate is not nec- 
 essary to the validity of a marriage, though a statute declares that only 
 ministers and magistrates shall be competent to perform the marriage cere- 
 mony, see Meister v. Moore, 96 U. S. 76, 24 L. Edi 826; Town -of London- 
 derry V. Town of Chester, 2 N. H. 268, 9 Am. Dec. 61; Campbell's Adm'r 
 V. Gullatt, 43 Ala. 57 ; Carmichael v. State, 12 Ohio St. 553 ; Holder v. State, 
 35 Tex. Or. Rj 19, 29 S. W. 793 ; Ross v. Sparks, 81 N. J. Eq. 117, 88 Atl. 384, 
 affirmed, 81 N. J. Eq. 211, 88 Atl. 385; Hunter v. Milam (Cal.) 41 Pac. 332. 
 And as to want of a license required by statute not rendering a marriage 
 invaliS, see Meister v. Moore, 96 U. S. 76, '24 L. Ed. 826 ; Teter v. Teter, 101 
 Ind. 129, 51 Am. Rep. 742 ; Campbell's Adm'r v. Gullatt, 43 Ala. 57 ; Askew 
 V. Dupree, 30 Ga. 173 ; Hargroves v. Thompson, 31 Miss. 211 ; Stevenson v. 
 Gray, 17 B. Mon. (Ky.) 193 ; Dumaresly v. Pishly, 3 A. K. Marsh. (Ky.) 368 ; 
 Connors v. Connors, 5 Wyo. 433, 40 Pac. 966; Chapman v. Chapman, 11 Tex. 
 Civ. App. 392, 32 S. W.. 564 ; Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78 ; 
 State V. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 
 800; Draughn v. State, 12 Okl. Cr. 479, 158 Pac. 890, L. R. A. 1916F, 793; 
 In re Svendsen's Estate, 37 S. D. 353, 158 N. W. 410; Feehley v. Feehley, 
 129 Md. 565, 99 A. 663, L. R. A. 19170, 1017 ; Davidson v. Ream, 97 Misc. 
 Rep. 89, 161, N. T. Supp. 73; Melcher v. Melcher, 102 Neb. 790, 169 N. W. 
 720, 4 A. L. R. 492. Comp. Laws, § 8602 et seq., as to marriage licenses, 
 does not invalidate a marriage because the affidavit for the marriage license 
 falsely states residence in the county where the license is issued. Switch- 
 men's Union of North America v. Gillerman, 196 Mich. 141, 162 N. W. 1024, 
 L. R. A. 1918A, 1117. That mere irregularities in issuing the license will not 
 affect the validity of the marriage, see State v. Day, 108 Minn. 121, 121 N. 
 W. 611; Reifschneider v. Reifschneider, 241 111. 92, 89 N. E. 255, affirming 
 judgment 144 111. App. 119. But see Herd v. Herd, 194 Ala. 613, 69 South. 
 885, L. R. A. 1916B, 1243. 
 
 «^ Franklin v. Lee, 300 Ind. App. 31, 62 N. B. 78; Schumacher v. Great 
 Northern R. Co., 23 N. D. 231, 136 N. W. 85 ; Bashaw v. State, 1 Xerg. (Tenn.) 
 177 ; Smith v. Bank, 115 Tenn. 12, 89 S. W. 392. And see the following stat- 
 utes: Alaska, Act May 3, 1917 (LaWs 1917, c. 56), in efCect August 1, 1917; 
 
40 MARRIAGE (Ch. 1 
 
 conformity with the requirements of the statute is complete, though 
 not followed by cohabitation,*" and its validity is not affected by 
 any secret reservation of one of the parties, unknown to the other,*" 
 or by other acts not affecting the essentials of the marriage, but 
 calculated only to deceive the public.*' 
 
 Informal or Common-Law Marriage 
 
 The term "common-law marriage" may be defined as a marriage 
 contracted by consent of the parties only, without either a religious 
 or a civil ceremony. Such marriages were recognized by the 
 canon law prior to the decree of the Council of Trent in 1563, but 
 since that date a solemnization by a priest in the presence of wit- 
 nesses has been required in most Catholic countries. In England', 
 however, the decree was not recognized, and for several centuries 
 it was the acpepted rule that no ceremony was necessary to create 
 the marriage relation. This view of the English law was over- 
 thrown in 1844 by the decision in Regina v. Millis,** and by subse- 
 quent legislation. 
 
 In the United States 'the old rule had gained a foothold long 
 before the decision of Regina v. Millis, and though some states 
 have refused to recognize informal or common-law marriages,*' 
 
 Illinois, Act May 13, 1905 (Laws 111. 1905, p. 317) ; .Utah, Comp. Laws 1907, 
 § 1184 ; Wisconsin, St. 1917, § 2839n. 
 
 *5 Potier V. Barclay, 15 Ala. 439 ; Williams t. Williams, 71 Misc. Kep. 
 500, 130 N. T. Supp. 875; Thompson v. Thompson, 202 S. W. 175, judgment 
 modified on second motion for rehearing 203 S. W. 939. 
 
 *6 Hilton V. Koyiance, 25 Utah, 129, 69 Pac. 660, 58 L. R. A. 723, 95 Am. 
 St. Eep. 821 ; Barker v. Barker, 88 Misc. Rep. 300, 151 N. T. Supp. 811. 
 
 47 State V. TlUinghast, 25 R. I. 391, 56 Atl. ISl': The fact that the par. 
 ties agreed to conceal their marriage and not live together openly for two 
 years does not afCect an otherwise legal marriage. Reifschneider v. Reif- 
 schnelder, 241 111. d2, 89 N. E. 255, affirming judgment 144 111. App. 119. 
 
 4S10 Clark & F. 534, 17 'Exxg. Rul. Cas. 66. 
 
 *9 Alaslca — Common-law marriages contracted in Alaska after August 1, 
 1917, are not valid. See Act May 3, 1917 (Laws 1917, c. 56), in effect August 
 1, 1917. Marriages contracted prior to that date are probably valid. 
 
 Arigona — Common-law roarriages contracted since October 1, 1913, are not 
 valid. Civ. Code 1913, par. 3844. Marriages contracted prior to that date 
 are probably valid. See Civ. Code Ariz. 1901, par. 3098. 
 
 Arkansas— T3\irth v. ITurth, 97 Ark. 272, 133 S. W. 1037, Ann. Cas. 1912D, 
 595; Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L. B. A. 1916C, 750. 
 
 California — Common-law marriages contracted since March 26, 1895, are 
 not valid. Civ. Code Cal. § 55; Norman v. Norman, 121 Cal. 620, 54 Pac. 
 143, 42 L. R. A. 343, 66 Am. St. Rep. 74. Prior to the date mentioned such 
 marriages were valid. White v. White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 
 799 ; Estate of McCau^and, 52 Cal. 577. 
 
 Connectimt — Common-law marriages dre probably not valid. The question 
 
§§ 19-21, FORMALITIES IN CELEBRATION 41 
 
 in a majority of the states such marriages are regarded as 
 valid.=° 
 
 has never been before the Supreme Court, but such would seem to be the 
 effect of Gen. St. 1902, § 453&>. 
 
 Delaware — The Supreme Court of Delaware has very recently held such 
 marriages invalid. Wilmington Trust Co. v. Hendrixson, 114 Atl. 215. This 
 case approves of the Massachusetts rule that, where the state legislates 
 in- respect to marriage, such legislation supersedes the common law. The 
 case goes much farther, however. It holds that common-law marriage is in- 
 consistent with and is not suited to our institutions and was never adopted as 
 a part of our common law. 
 
 Illinois — Common-law marriages contracted since July 1, 1905, are not 
 valid. Act May 13, 1905 (Laws 1905, p. 317). See Wilson v. Cook, 256 111. 
 460, 100 N. E. 2?2, 43 L. E. A. (N. S.) 365i. Marriages contracted prior to 
 that date are valid. Port v. Port, 70 111. 4S4; McKenna v. McICenna, 180 
 m. 577, 54 N. E. 64J.. 
 
 Kentucky — Common-law marriages contracted since 1852 are not valid. 
 Estill V. Rogers, 64 Ky. (1 Bush) 62 ; Klenke v. Noonan, 118 Ky. 436, 81 S. 
 W. 241. See Rev. St. 1852, c. 47, § 2 ; Carroll's Ky. St. 1915, § 2097. Such 
 marriages were valid prior to 1852. See Donnelly v. Donnelly's Heirs, 
 47 Ky. (8 B. Mon.) 113. 
 
 Louisiana — Johnson's Heirs v. Raphael, 117 La. 967, 42 South. 470. See 
 Civil Codes 1825 and 1870. While Louisiana was a Spanish colony, and up 
 to 1825, celebration by a priest was not necessary. The decree of the Coun- 
 cil of Trent was not extended to the Spanish colonies in America. Succes- 
 sion of Prevost, 4 La. Ann. 347. ' 
 
 Afaime— Though the question has not been decided by the courts of Maine, 
 probably common-law marriages would not be recognized. The law regard- 
 ing marriages is similar to that of Massachusetts. State v. Hodgsklns, 19 
 Me. 156, 36 Am. Dec. 742. , 
 
 Maryland — ^Denison v. Denison, 35 Md. 361. 
 
 Massachusetts — Milford v. Worcester, 7 Mass. 48; Norcross v. Norcross, 
 155 Mass. 425, 29 N. B. 506. 
 
 Ifew Hampshire — Dunbarton v. Franklin, 19 N. H. 25i7. But see Pub. St 
 1901, c. 174, § 15i. 
 
 Tiforth Garqlinor— Veil's Revisal 1908, § 2081 ; State v. Wilson, 121 N. C. 650, 
 28 S. E. 416. 
 
 :North Dakota — Schumacher v. Great Nor. R. Co., 23 N. D. 231, 136 N. W. 
 85. Common-law marriages were valid prior to July 1, 1890. 
 
 Tennessee — Bashaw v. State, 1 Terg. 177; State v. Bank, 115 Tenn. 12, 
 89 S. W. 392. 
 
 Utah — Common-law marriages contracted since the Act of March 8, 1888 
 (Laws 1888, p. 88) are invalid. Prior to that act they were valid. See Hil- 
 ton V. Roylauce, 25 Utah, 129, 69 Pac. 660, 58 L. R. A. 723, 95 Am. St. Rep. 
 821. 
 
 Vermont — Northfield v. Plymouth, 20 Vt. 582; Morrill v. Palmer, 68 Vt. 
 1, 33 Atl. 829, 33 L. R. A. 411. 
 
 Virginia,— Omeld v. Davis, 100 Va. 250, 210 S. B. 910. 
 
 Washington — In re McLaughlin's Estate, 4 Wash. 570, 30 Pac. 651, 16 L. 
 
 5° See note 50 on following page. 
 
42 MARRIAGE (Ch. 1 
 
 Subject to the qualification that in some states cohabitation fol- 
 lowing the agreement is essential, it may be stated as the general 
 rule that, in those states where no formalities of celebration are 
 
 R. A. 699; Summerville v. Summeryille, 31 Wash. 411, 72 Pae. 84; Meton 
 v; State Industrial Ins. Dept., 104 Wash. 652', 177 Pac. 696. 
 
 West Virginia — Beverlip v. Beverlin, 29 W. Va. 732, 3 S. E. 38. 
 
 Wisconsin — Common-law marriages are Invalid since .lanuary 1, 1918, by 
 virtue of Acts 1917, c. 218, § 3. Prior to that date they were valid. 
 
 Common-law marriages are not valid in the Philippine Islands or in Porto 
 Rico. 
 
 5 oAJo&amo— Campbell v. Gullatt, 43 Ala. 57; Herd v. Herd, 194 Ala. 618, 
 69 South. 885, L. R. A. 1916B, 1243. 
 
 Colorado— Kliiitel v. Klipfel, ,41 Colo. 40, 92 Pac. 26, 124 Am. St. Rep. 
 96; Mock v. Ohaney, 36 Colo. 60, 87 Pac. 538. 
 
 District of Columbia — Travers v. Reinhardt, 25 App. D. C. 567 (dictum). 
 
 Florida— lyaniel v. Sams, 17 Fla. 487; Warren v. Warren, 66 Fla. 138, 
 63 South. 726. 
 
 Georgia — Common-law marriages valid, except for a short period between 
 January 1, 1862, and December 14, 1863, during which period Code 1861, § 
 1658, was in force. Askew v. Diipree, 30 Ga. 173 ; Smith v. Reed, 145 Ga. 
 724, 89 S. E. 815, L. R. A. 1917A, 492. 
 
 Hawaii — Jacobs v. Cummins, 4 Hawaii, 113 ; Godfrey v. Rowland, 16 Ha- 
 waii, 377. And see United States v. Lee Sa Kee, 3 U. S. Dist. Ct. of Hawaii, 
 265. 
 
 Idaho— Huft v. Huff, 20 Idaho, 450, 118 Pac. 1080. 
 
 Indiana — Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742. 
 
 Indian Territory — Common-law marriages contracted in Indian Territory, 
 before, it became part of Oklahoma in 1907, are valid. Davis v. Pryor, 3 
 Ind. T. 398, 58 S. W. 660; Id., 112 Fed. 274, 50 C. C. A. 579; Porter v. U. S. 
 7 Ind. T. 616, 104 S. W. 855. And see Clarkson v. Washington, 38 Okl. 4, 
 131 Pac. 935. 
 
 loiiM — Blanc^ard v. Lambert, 43 Iowa, 228, 22 Am. Rep. 245; Pegg v. 
 Pegg, 138 Iowa, 572, 115 N. W. 1027. 
 
 Kansas— StSite v. Walker, 36 Kan. 297, 12 Pac. 279, 59 Am. Rep. 556; 
 Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311, 50 L. R. A. 180, 78 Am 
 St. Rep. 342. 
 
 Michigan-^'Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Su- 
 preme Tent v. McAllister, 132 Mich. 69, 92 N. W. 770, 102 Am. St. Rep. 382. 
 
 Minnesota — State v. Worthingham, 23 Minn. 528; Hulett v. Carey, 66 
 Minn. 327, 69 N. W. 31, 34 L. R. ,A. 384, 61 Am. St. Rep. 419. 
 
 Mississippi — Hargroves v. Thompson, 31 Miss. 211; Howard v. Kelley, 
 111 Miss. 285, 71 South. 381, Ann. Cas. 1918E, 1230. There is, however, some 
 ■doubt whether common-law marriages contracted between November 1, 1892, 
 when the Code of 1892 went into effect, and October 1, 1906, when the Code 
 of 1906 went into effect, are valid. See Howard v. Kelley, supra. 
 
 JI«s«OMri— Dyer v. Brannoek, 60 Mo. 391, 27 Am. Rep. 359; State v. Bit- 
 tick, 103 Mo. 183, 15 S. W. 325, 11 L. R. A. 587, 23 Am. St. Rep. 869. But see 
 Act Mar. 31, 1921, declaring common-law marriages void. 
 
 Montana — Rev. Codes 1907, § 3607. 
 
 Nebraska — Gibson v. Gibson, 24 Neb. 434, 39 N. W. 450; University of 
 Michigan v. McGuckin, 62 Neb. 489, 87 N. W. 180, 57 L. R. A. 917, Cooley. 
 Cas. Persons and Domestic Relations, 6; Id., 64 Neb. 300, 89 N. W.' 778 57 
 
§§ 19-21) FORMALITIES IN CELEBRATION 43 
 
 required, all that is necessary to constitute a valid marriage is 
 that the parties shall consent and agree to assume the relation of 
 husband and wife presently. This is known as marriage "per verba 
 
 L. R. A. 917, Cooley Cas. Persons and Domestic Relations, 6; Coad v. C!oad, 
 87 Neb. 290, 127 N. W. 455. 
 
 iVevafJc— State v. Zichfleld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 
 Am. St. Rep. 800. 
 
 :New Jer«et/— Applegate v. Applegate, 45 N. J. Eq. 118, 17 Atl. 293 ; State 
 V. Thompson, 76 N. J. Law, 197, 68 AtL 1068. 
 
 TJeio Mexico — Common-law marriages contracted prior to January 1, 1906, 
 are probably valid. As to marriages contracted since that date there is 
 some doubt. See Code 1915, § 3444. 
 
 Jiew Yorfc— Clayton v. Wardell, 4 N. Y. 230 ; Ziegler v. Cassidy,, 220 N. 
 T. 98, 115 N. B. 471, Ann. Cas. 1917E, 248. But common-law marriages 
 could not be legally contracted between January 1, 1902, and January 1, 
 1908. See Laws 1901, c. 339, repealed- by Laws 1907, c. 942, § 6. And see 
 In re Biersack, 96 Misc. Rep. 161, 159 N. Y. Supp. ,519 ; In re Hinman, 147 
 App. Div. 452, 131 N. T. Supp. 861. Common-law marriages on the high 
 seas within the three-mile limit are valid. In re Spondre, 98 Misc. Bep. 
 524, 162 N. X. Supp. 943. 
 
 OAio— Carmichael v. State, 12 Ohio St. 553 ; Unbenhower v. Labus, 85 Ohio 
 St. 238, 97 N. E. 832. 
 
 OfcJaAornor— Reaves v. Reaves, 15 Okl. 240, 82 Pac. 490, 2 L. R. A. (N. S.) 
 353 ; In re Love's Estate, 42 Okl. 478, 142 Pac. 305, L. R. A. 1915B, 109. 
 
 Oregon— Estate of Megginson, 21 Or. 387, 28 Pac. 388, 14 L. R. A. 540 
 (dictum). But see Holmes v. Holmes, Fed. Cas. No. 6,638. 
 
 Pennsylvania — Guardians of the Poor v. Nathans, 2 Brews. (Pa.) 149; 
 Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 733 ; In re McCausland, 213 Pa. 
 189, 62 Atl. 780, 110 Am. St. Rep. -540. 
 
 Philippine Islands — Common-law marriages are not valid. General Order 
 iS'o. 68, promulgated by military governor December IS, 1899. Solicitor 
 General Araneta, in opinion December 20, 1905 (2 Op. Atty. Gen. P. I.), 
 states that prior to the promulgation of General Order 68 marriage was, 
 celebrated according to canonical laws, and that "the general order does 
 not recognize the common-law marriage." This order' is still in force. St. 
 1907, §§ 3770-3773. 
 
 Rhode Island — Validity of common-law marriages has not been definitely 
 decided ; but, if the question were squarely presented, such marriages would 
 probably be held valid. See Wrynn v. Downey, 27 R.' I. 454, 63. Atl. 401, 4 
 L. R. A. (N. S.) 615, 114 Am. St. Rep. 63, 8 Ann. Cas. 912. And see Math- 
 ewson v. Phoenix Iron Foundry (C. C.) 20 Fed. 281. 
 
 South Carolina — Fryer v. Fryer, Rich. Eq. Cas. 85; Butledge v. Tunns, 
 69 S. C. 400, 48 S. B. 287. 
 
 South Dakotar-CiYJl Code 1913, §§ 34-59. 
 
 Texas — Rice v. Rice, 31 Tex. 174; Edelstein v. Brown, 100 Tex. 403, 100 
 S. W. 129, 123 Am. St. Rep. 816; Grigsby v. Reib, 105 Tex. 597, 153 S. 
 W. '1124, L. R. A. 1915E, 1, Ann. Cas. 19150, 1011, affirming (Tex. Civ. App.) 
 139 S. W. 1027. 
 
 Wisconsin — Common-law marriages contracted priolr to January 1, 1918, are 
 valid, but by Acts 1917, c. 218, § 3, such marriages are made invalid. As 
 to marriages prior to that date, see Williams v. Williams, 46 Wis. 464, 1 
 
44: MARRIAGE (Ch. 1 
 
 de prsesenti." "^ The essential element is that the minds of the 
 parties have met in mutual assent to the marriage."^ 
 
 It is sometimes said that a common-law marriage may be effected 
 "per verba de future cum copula" — that is to say, by an agreement 
 to marry in the future, followed by intercourse in pursuance there- 
 of." But this statement is too broad. A mere agreement to marry 
 in the future, though followed by cohabitation, is not a marriage, 
 
 N. W. 98, 32 Am. Eep. 722; Becker v. Becker, 153 Wis. 226, 140 N. W. 
 10S2, L. R. A. 1915B, 56. 
 
 Wyoming — Weidenhoft v. Primm, 16 Wyo. 340, 94 Pac. 453. 
 
 oiDackerson v. Brown, 49 Miss. 357; Jewell 'v. Jewell, 1 How. 219, 11 
 L. Ed. 108; Meister v. Moore, 96 U. S. 76, 24 L. Ed. 826; Mathewson v. 
 Phoenix Iron Foundry (O. O.) 20 Fed. 281; Teter v. Teter, 101 Ind. 129, 51 
 Am. Eep. 742; Campbell's Adm'r v. Gullatt, 43 Ala. 57; Johnson v. John- 
 son's Adm'r, 30 Mo. 72 ; Butterfield v. Ennis, 193 Mo. App. 638, 186 S. W. 
 1173; State v. Bittick, 103 Mo. 183, 15 S. W. 325, 11 L. R. A. 587, 23 Am. 
 St. Rep. 869 ; Graham v. Bennet, 2 Oal. 503 ; White v. White, 82 Cal. 427, 
 23 Pac. 276, 7 L. R. A. 799; Smith v. People, 64 Colo. 290, 170 Pac. 959; 
 Bowman v. Bowman, 24 111. App. 165; Com. v. Stump, 53 Pa. 132, 91 Am. 
 Dec. 198 ; Askew v. Dupree, 30 Ga. 173 ; Bailey v. State, 36 Neb. 808, 55 N. 
 W. 241; Port v. Port, 70 111. 484; Hebblethwalte v. Hepworth, 98 111. 126; 
 Hutching v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164; Williams v. Kilburn, 
 88 Mich. 279, 50 N. W. 293; Carmichael v. State, 12 Ohio St. 553; Good- 
 rich V. Cushman, 34 Neb. 460, 51 N. W. 1041; Fenton v. Reed, 4 Johns. 
 (N. Y.) 52, 4 Am. Dec. 244; Jackson v. Winne, 7 Wend. (N. Y.) 47, 22 Am. 
 Dec. 563; Cheney v. Arnold, 15 N. Y. 345, 69 Am. Dec. 609; Overseers of 
 Poor of Town of Newbury v. Overseers of Poor of Town of Brunswick, 
 2 Vt. 151, 19 Am. Dec. 703; Hynes v. McDermott, 91 N. Y. 451, 43 4im. 
 Rep. 677 ; Wilcox v. WUcox, 46 Hun (N. Y.) 32 ; Van Tuyl v. Van Tuyl, 57 
 Barb. (N. Y.) 235 ; Moller v. Sommer, 86 Misc. Rep. 110, 149 N. Y. Supp. 103 ; 
 Davidson v. Ream', 178 App. Div. 362, 164 N. Y. Supp. 1037; affirming 97 
 Misc. Rep. 89, 161 N. Y. Supp. 73 ; Parker v. De Bemardi, 40 Nev. 361, 161 
 Pac. 645 ; Thomas v. James (Okl.) 171 Pac. 855 ; Hargroves v. Thompson, 
 31 Miss. 211 ; Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. 
 St. Rep. 802 ; Haggin v. Haggin, 35 Neb. 375, 53 N. W. 209 ; Dyer v. Bran- 
 nock, 66 Mo. 391, 27 Am. Rep. 359; State v. Worthingham, 23 Minn. 528; 
 Dumaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368; Guardians of the Poor 
 T. Nathans, 2 Brewst. (Pa.) 149; Town of Londonderry v. Town of Chester, 
 2 N. H. 268, 9 Am. Dec. 61; Blanchard v. Lambert, 43 Iowa, 228, 22 Am. 
 Rep. 245; Jackson v. Banister, 47 Tex. Civ. App. 317, 105 S. W. 66; Steves 
 V. Smith, 49 Tex. Civ. App. 126, 107 S. W. 141; Burnett v. Burnett (Tex. 
 Civ. App.) 83 S. W. 238 ; Bargna v. Bargna (Tex. Civ. App.) 127 S. W. 1156. 
 
 62 In re Boyington's Estate, 157 Iowa, 467, 137 N. W. 949 ; Love v. Love 
 (Iowa) 171 N. W. 257 ; Moller v. Sommer, 86 Misc. Rep. 110, 149 N. Y. Supp. 
 103, judgment affirmed 165 App. Div. 990, 150 N. Y. Supp. 1097. 
 
 58 2 Kent, Comm. 87; Askew v. Dupree, 30 Ga. 173 (dictum). See, also, 
 In re McCausland's Estate, 52 Cal. 568, and Patton v. Cities of Philadel- 
 phia & New Orleans, 1 La. Ann. 98. In both of these cases, however there 
 was evidence of a present marriage. 
 
§§ 19-21) FORMALITIES IN CELEBRATION 45 
 
 unless such cohabitation is intended and understood by the parties 
 as a consummation of the marriage, and as converting the execu- 
 tory agreement into a present actual marriage."* If the cohabita- 
 tion is not in consummation of the marriage agreement, but is 
 commenced in reliance upon a mere promise or agreement to marry 
 in the future, a marriage per verba de futuro is not established. °° 
 The true doctrine seems to be that an agreement to marry in the 
 future, followed by copula, is at best only prima facie evidence of 
 marriage, and that the prima facie case may be rebutted by evi- 
 dence, circumstantial or otherwise, tending to show that there was 
 no present intent or agreement at the time of the copula to con- 
 summate a marriage or to convert the executory agreement into a 
 present actual marriage.^" 
 
 A marriage per verba de praesenti may be valid, though no ex- 
 press words were used. All that is necessary is that the parties 
 shall intend to marry, and that their intention shall appear either 
 by their words, or by their conduct.^^ "As the law stands, a valid 
 
 "Robertson v. State, 42 Ala. 509; Hebblethwalte v. Hepworth, 98 III. 
 126; Lorimer v.' Lorimer, 124 Mich. 631, 83 N. W. 609; Sorenson v. Soren- 
 son, 68 Neb. 483, 94 N. W. 540. 98 N. W. 837, 100 N. W. 930, 108 N. W. 
 455; Hill v. State, 41 Ga. 484; Cbeney v. Arnold, 15 N. Y. 845, 69 Am. 
 Dec. 609; Duncan v. Duncan, 10 Ohio St. 181; Grimm's Estate, 131 Pa. 
 19.9, 18 Atl. 1061, 6 L. K. A. 717, 17 Am. St. Eep. 796 ; Fryer v. Fryer, Rich. 
 Bq. Gas. (S. C.) 113. 
 
 55 Hill V. State, 41 Ga. 484; People v. Adams, 162 Mich. 871, 127 N. W. 
 354; Sorensen v. Sorensen, 68 Neb. 500, 94 N. W. 540, 98 N. W. 837, 100 
 N. W. 930, 103 N. W. 455 ; Grimm's Estate, 131 Pa. 199, 18 Atl. 1061, 6 li. R. 
 A. 717, 17 Am. St. Rep. 796. 
 
 5»Reg. V. MiUis, 10 Clark & F. 534; Stoltz v. Doering, 112 111. 234; 
 Peck V. Peck, 12 R. I. 485, 34 Am. Rep. 702; Port v. Port, 70 111. 484; 
 Cartwright v. McGown, 121 111. 388, 12 N. E. 787, 2 Am. St. Rep. 105 ; Heb- 
 blethwalte V. Hepworth, 98 111. 126. See, also, Duncan v. Duncan, 10 Ohio St. 
 181, and CHeney v. Arnold, 15 N. Y. 345, 69 Am. Dec. 609. The agreement per 
 verba de futuro must be followed by cohabitation. Sorensen v. Sorensen, 68 
 Neb. 483, 94 N. W. 540, 98 N. W. .837, 100 N. W. 930, 103 N. W. 455. 
 
 5 7 Schouler, Dom. Rel. § 26; Dalrymple v. Dalrymple, 2 Hagg. Consist. 
 54; Francis v. Francis, 31 Grat (Va.) 283; Hicks v. Cochran, 4 Edw. Cb. 
 (N. Y.) 107; Van Tuyl v. Van Tuyl, 57 Barb. (N. Y.) 237; Dickerson v. 
 Brown, 49 Miss. 857; Thomas v. James (Okl.) 171 Pac. 855; In re Wit- 
 tick's Estate, 164 Iowa, 485, 145 N. W. 918; Bowman v. Bowman, 24 111. 
 App. 165; Gise v. Com., 81 Pa. 428; Guardians of the Poor v. Nathans, 
 2 Brewst. (Pa.) 149; In re Wells' Estate, 123 App. Div, 79, 108 N. Y. Supp. 
 164; State v. Hansbrough, 181 Mo. 848, 80 S. W. 900. The contract requi- 
 site to the creation of the marriage relation need not be expressed in any 
 special manner, or by any prescribed form of words, but may be sufficiently 
 
46 MARRIAGE . (Ch. 1 
 
 marriage, to all intents and purposes, is established by proof of an 
 actual contract per verba de prsesenti between persons of opposite 
 sexes, capable of contracting, to take each other for husband and 
 wife ; especially where the contract is followed by cohabitation. No 
 solemnization or other formality, ^part from the agreement itself, 
 is necessary." °* It is not essential that the contract should be en- 
 tered into before witnesses.'" The agreement being the essential 
 element in these marriages, it may, like any other agreement, be 
 proved by words or by conduct,"" and by the testimony of the 
 parties themselves or by the testimony of third persons. 
 
 It has also been held that, in order to constitute a valid marriage 
 by agreement, it is not essential that the parties should, at the tiine 
 the agreement is entered into, be in the presence of each other or 
 even in the same jurisdiction. Thus it has been said that the agree- 
 ment may be entered into by letter."'- In a recent case "^ the United 
 States Circuit Court of Appeals sustained a niarriage where the' 
 parties were in different jurisdictions when the agreement was en- 
 tered into. The plaintiff brought the action to recover for the 
 death of her alleged husband, claiming to be his wife by commo'n- 
 law marriage. The deceased signed in Minnesota, where he re- 
 sided, a contract of marriage in duplicate. He sent both copies to 
 the plaintiff, who executed them in Missouri, returning one copy 
 to the deceased and retaining the other. It did riot appear that 
 the parties thereafter lived together. The court said: "The state 
 
 evidenced by any clear and unambiguous language or conduct. Eeynold- 
 son V. Eeynoldson, 96 Neb. 270, 147 N. W. 844. Where the words claimed 
 to amount to a contract of marriage per verba de prsesenti are ambiguous, 
 the intent of the parties may be examined into, as In cases of other con- 
 tracts, and, if the subsequent conduct clearly indicates that they intended 
 matrimony, they are legally husband and veife. Bey v. Bey (N. J. Eq.) 
 90 Atl. 684. The remarriage of divorced parties may be shown by proof of 
 facts from which a common-law marriage may be presumed. Thomas v. 
 James (Okl.) 171 Pac. 855. 
 
 5 8 Van Tuyl v. Van Tuyl, 57 Barb. (N. Y.) 237. 
 
 5 Davis V. Stoufeer, 132 Mo. App. 555, 112 S. W. 282; Van Tuyl v. Van 
 Tuyl, 57 Barb. (N. Y.) 237; Umbenhour v. Umbenhour, 31 Ohio Cir. Ct. R. 
 317 ; People v. Spencer, 199 Mich. 395, 165 N. W. 921. 
 
 «» See post, p. 49. 
 
 eil Bishop, Marriage, Divorce and Separation, §§ 323-325. Written con- 
 tracts to marry were involved in Mathewson v. Phoenix Iron Foundry (C. 
 C.) 20 Fed. 281, and In Hulett v. Carey, 66 Minn, 327, 69 N. W. 31, 34 L. 
 R. A. 384, 61 Am. St. Rep. 419. See, also, Kahn v. Kahn, 62 Misc. Rep! 
 550, 115 N. T. Supp. 1028, construing Laws N. Y. 1901, c. 339. 
 
 2 Great Northern Ry. Co. v.. Johnson, 254 Fed. 683, 166 C. 0. A. 181. 
 
§§ 19-21) FORMALITIES IN CELEBRATION 47 
 
 of Minnesota recognizes common-law marriages, but the contract 
 is governed by the laws of the state of Missouri, where acceptance 
 by plaintiff of the contractual offer made by deceased occurred. 
 That state recognizes and enforces common-law marriages. 
 * * * In approaching the proposition that the parties must be 
 together or within the same jurisdiction, it is to be noted that this 
 matter of marriage is for the states, except in the District of Colum- 
 bia and the territories,"' and is to be determined by the law of the 
 state where it was contracted or celebrated."* So far as the law 
 on, the point here involved has been defined by the adjudications of 
 the Missouri courts, it will be followed, irrespective of the view 
 which might be taken by this court, if the question were open. A 
 careful examination of the above-cited Missouri cases, and of many 
 others from that state, convinces that in that state the marriage 
 contract possesses the elements of an ordinary contract and. none 
 others. That contract establishes a very important .status, but 
 the contract itself is in no respect peculiar. Mutual assent to the 
 present institution of the status is all sufficient. ISTo other act, such 
 as cohabitation,"^ is necpssary to complete the institution of the 
 status where the mutual assent contemplates a marriage in praesenti. 
 Why should the physical presence of the parties be essential to the 
 legality of this contract, any more than of any other? It is not for 
 us to devise means of making common-law marriages difficult. It 
 is our duty to recognize the law as it exists. Nor is there any rea- 
 son why the parties should be within the same jurisdiction. The 
 existence and validity of the contract must be determined by the 
 law of the place where it is legally regarded as made. Here, how- 
 ever, there is no point in the suggestion, for both of the states inr 
 volved approve common-law marriages." 
 
 When the consent to marry is manifested by words de praesenti, 
 
 a present assumption of , the marriage status- is necessary."" The 
 
 > 
 
 63 Davis V. Pry or (8th Cir.) 112 Fed. 2T4, 50 C. O. A. 379; 26 Cyc. 829, 
 and citations in notes 12 and 13 thereto. 
 
 6* 26 Cyc. 829, and citations in note 14 thereto. 
 
 «5 Davis V. Stouffer, 132 Mo. App. 555, 112 S. "W. 282. 
 
 es'Cartwright v. McGown, 121 111. 388, 12 N. E. 739, 2 Am. St. Kep. 105; 
 Hawkins v. Hawkins, 142 Ala. 571, 38 South. 640, 110 Am. St. Eep. 53; 
 In re Svendsen's Estate, 37 S. D. 353, 158 N. W. 410. , A mere agreement to 
 become husband and wife without a presenft intention to assume that rela- 
 tion does not constitute a marriage; it being essential that the parties in 
 good faith bind themselves to live apart from all others during their joint 
 Uves. Grigsby v. Eeib (Tex. Civ. App.) 139 S. W. 1027. 
 
48 MARRIAGE (Ch. 1 
 
 marriage must be complete at the time of the agreement, and not 
 be left for the future. It is not sufficient to agree to present co- 
 habitation, and a future regular marriage when more convenient, 
 or when a husband or wife shall die, or when a license can be ob- 
 tained, or a ceremony can be performed ; but there must be a pres- 
 ent marriage by the agreement."' The rule that a present assump- 
 tion of the marriage status is necessary to constitute a valid com- 
 mon-law marriage does not, according to the weight of authority, 
 mean that cohabitation as husband and wife must immediately 
 follow the agreement,'* though some jurisdictions hold that there 
 is no marriage unless cohabitation follows.'^ As cohabitation is 
 not essential in a ceremonial marriage,'" there is no reason why, 
 if the agreement is satisfactorily proved, cohabitation should be 
 required in addition to the agreemerit in common-law marriages. '"^ 
 
 «7 Cartwright v. McGown, 121 lU. 388, 12 N. E. 739, 2 Am. St. Rep. 105; 
 In re Maher's Estate, 204 111. 25, 68 N. E. 159; Ee^. v. Millis, 10 Clark & 
 F. 534 ; Robertson v. State, 42 Ala. 509 ; Clarii v. Field, 13 Vt. 460 ; Duncan 
 V. Duncan, 10 OMo St. 182 ; Peck v. Peck, 12 R. I. 485, 34 Am. Rep. 702 ; 
 Beverson's Estate, 47 Cal. 621; Fryer v. Fryer, Rich. Eq. Gas. (S. C.) 85; 
 Van Tuyl v. Van Tuyl, 57 Barb. (N. T.) 235. 
 
 8 8 Great Northern Ry. C5o. v. Johnson, 254 Fed. 683, 1G6 C C. A. 181; 
 Green v. Green (Fla.) 80 South. 739 ; Askew v. Dupree, 30 Ga. 173 (dictum) ; 
 Port V. Port, 70 III. 484; Love v. Love (Iowa) 171 N. W. 257; Hulett v. 
 Carey, 66 Minn. 327, 69 N. W. 31, 34 L. R. A. 384, 61 Am. St. Rep. 419; Shat- 
 tuck V. Shattuck, 118 Minn. 60, 136 N. W. 410; Davis v. StoufEer, 132 Mo. 
 App. 555, 112 S. W. 282; Dies v. Winne, 7 Wend. (N. Y.) 47, 22 Am. Dec. 
 563 ; Davidson v. Ream, 97 Misc. Rep. 89, 161 N. X. Supp. 73 ; Guardians of 
 Poor v. Nathans, 2 Brewst. (Pa.) 149; Richard v. Brehm, 73 Pa. 140, 13 
 Am. Rep. 735 ; Rutledge v. Tunns, 69 S. C. 400, 48 S. E. 297. 
 
 69 Herd v. Herd, 194 Ala. 885, 69 South. 885, L. R. A. 1916B, 1243; Sharon 
 v. Sharon, 79 Cal. 633, 22 Pac. 26, 131 ; Harron v. Harron, 128 Cal. 308, 60 
 Pac. 932; Taylor v. Taylor, 10 Colo. App. 303, 50 Pac. 1049; Lorimer v. 
 Lorimer, 124 Mich. 631, 83 N. W. 809 ; People v. Spencer, 199 Mich. 395, 165 
 N. W. 921 ; O'Malley v. O'Malley, 46 Mont. 549, 129 Pac. 501, Ann. Cas. 1914B, 
 Q62 ; In re Svendsen's Estate, 37 S. D. 353, 158 N. W. 410; Grigsby v. Reib 105 
 Tex. 597, 153 S. W. 1124, L. R. A. 1915B, 1, Ann. Cas. 1915C, 1011, affirming 
 judgment (Tex. Civ. App.) 139 S. W. 1027; Berger v. Kirby, 105 Tex. 611 
 153 S. "W. 1130, 51 L. R. A. (N. S.) 182, affirming judgment (Tex. CSv. App )' 
 135 S. W. 1122; Melton v. State, 71 Tex. Or. R. 130, 158 S. W. 550. See, 
 also, Rev. Codes Idaho 1908, § 2611. A "mutual and public, assumption of 
 the marital relation," within Rev. Codes Mont. § 3607, defining common- 
 law marriage, means a course of conduct on the part of both man and wife 
 toward each other and toward the world so that people generally take 
 them to be maj-ried, and cohabitation is indispensable thereto. O'Mallev 
 V. O'Malley, 46 Mont. 549, 129 Pac. 501, Ann. Cas. 1914B, 662. 
 
 ToAnte, p. 30. 
 
 71 Shelf, Mar. & Div. 5-7; Dalrymple v. Dalrymple, 2 Hagg. Consist 54- 
 Jackson v. Winne, 7 Wend. (N. Y.) 47, 22 Am. Dec. 563; Dumaresly y. Fishl 
 
§§ 19-21) FORMALITIES IN CELEBRATION 49 
 
 It is generally recognized that it is not necessary that a marriage 
 be consummated by intercourse, because "consensus, non con- 
 cubitus, facit matrimonium." 
 
 Cohabitation and Repute 
 
 The numerous cases in which the question of the validity of in- 
 formal marriages has arisen have turned principally on matters of 
 evidence, as to whether the circumstances of the case and the con- 
 duct of the parties showed present consent. It is a question of fact, 
 to be determined from all the circumstances of each case, whether 
 the parties intended marriage or not. "A mere carnal commerce, 
 without the intention of cohabiting and training up children, would 
 not constitute marriage under any circumstances." '^ Mere cohab i- 
 tation and repute do not in themselves constitute marriage,^'' but 
 .are merely facts from which it may be presumed that a mar riage 
 wa s entered into.''* The presumption is always in favor of mar- 
 riage, and acts and conduct which have the appearance of marriage 
 will be construe d as such, unless there are circumstances which 
 preclude t hat construction.'^^ So, if two persons live together as 
 
 ly, 3 A. K. Marsh. (Ky.) 368; Port v. Port, 70 111. 484; Peck v. Peck, 12 
 R. I. 485, 34 Am. Kep. 702; Hebblethwaite v. Hepworth, 98 111. 126; Hil- 
 ton V. Eoylance, 25 Utah, 129, 69 Pac. 660, 58 L. R. A. 723, 95 Am. St. Rep. 
 821. 
 
 72Lindo V. Belisario, 1 Hagg. CoBslst. 216; Com. v. Stump, 53 Pa. 132, 
 91 Am. Dec. 198; Van Tuyl v. Van Tuyl, 57 Barb. (N. Y.) 235; State v. 
 Kennedy, 207 Mo. 528, 106 S. W. 57 ; Taylor v. Taylor, 10 Colo. App. 303, 
 50 Pac. 1049; Lee v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R. A. 
 904. 
 
 73 People V. Adams, 162 Mich. 371, 127 N. W. 354 ; In re Boyington's Es- 
 tate, 157 Iowa, 467, 137 N. W. 949; Gorden v. Gorden, 283 111. 182, 119 N. 
 E. 312; Tedder v. Tedder, 108 S. C. 271, 94 S. B. 19, 2 A. L. R. 438; Nelson 
 V. State (Tex. Cr. App.) 206 S. W. 361 ; Schwingle v. Keifer (Tex. Civ. App.) 
 135 S. W. 194. A common-law marriage is not effected by occasional co- 
 habitation after an express promise to have a marriage ceremony performed, 
 ""which is not fulfilled. In re CaUery's Estate, 226 Pa. 469, 75 Atl. 672. 
 
 ■'i Osborne v. Ramsay, 191 Fed. 114, 111 C. C. A. 594; Moore v. Heineke, 
 119 Ala. 627, 24 -South. 374; Norcross v. Norcross, 155 Mass. 425, 29 N. E. 
 506; Estes v. Merrill, 121 Ark. 361, 181 S. W. 136; In re Baldwin's Es- 
 tate, 162 Cal. 471, 123 Pac. 267; In re Matteote's Estate, 59 Colo. 566, 151 
 Pac. 448; In re Boyington's Estate, 157 Iowa, 467, 137 N. W. 949; In re 
 Gallery's Estate, 226 Pa. 469, 75 Atl. 672 ; Severance v. Severance, 197 Mich. 
 327, 163 N. W. 924; Bishop v. Brittaia Inv. Co., 229 Mo. 699, 129 S. W. 
 668, Ann. Cas. 1912A, 868 ; State v. St. John, 94 Mo. App. 229, 68 S. W. 374 ; 
 O'Malley v. O'Malley, 46 Mont. 549, 129 Pac. 501, Ann. Cas. 1914B, 662; 
 Houston Oil Co. of Texas v. Griggs (Tex. Civ. App.) 181 S. W. 833. 
 
 70 Piers V. Piers, 2 H. L. Cas. 331 ; Teter v. Teter, 101 Ind. 129, 51 Am. 
 Rep. 742 ; Dickerson v. Brown, 49 Miss. 357 ; State v. Worthingham, 23 Minn. 
 
 TI1T.P.& D.Eel.(3d Ed.)— 4 
 
50 MARRIAGE (Ch: 1 
 
 husband and wife, holding themselves out to the public as such, 
 and gain the reputation in the community of being married, this 
 is very generally accepted as prima facie proof of marriage.''" 
 In some states this rule is expressly stated in the statutes." 
 
 Cohabitation, necessary to raise the presumption of marriage, 
 means, to live or dwell together, or to have the same habitation.''* 
 
 ■ 
 
 528; Hynes v. McDermott, 91 N. Y. 451, 43 Am. Kep. 677; Guardians of the 
 Popr V. Nathans, 2 Brewst. (Pa.) 149; Blanchard v. Lambert, 43 Iowa, 228, 
 22 Am. Rep. 245 ; Linsey v. Jefferson (Okl.) 172 Pac. 641 ; Coad v. Goad, 87 
 Neb. 290, 127 N. W. 455. 
 
 76 1 I^raser, Dom. Jlel. 113; De Thoren v. Attorney General, 1 App. Gas. 
 686 ; Davis v. Pryor, 112 Fed. 274, 50 G. C. A. 579 ; XJ. S. v. Engracio Villa- 
 fnerte, et al., 4 Phil. Uep. 559; Gall v. Gall, 114 N. Y. 109, 21 N. E. 
 106, Cooley Gas. Persons and Domestic Relations, 28'; Plattner v. Platt- 
 ner, 116 'Mo. App. 405, 91 S. W. 457; Gramsey v. Sterling, 111 App. 
 Div. 568, 97 N. T. Supp. 1082 ; Eames v. Woodson, 120 La. 1031, 46 South. 13 ; 
 Green v. State, 59 Ala. 68 ; Lowry v. Coster, 91 111. 182 ; Proctor v. Bigelow, 
 38 Mich. 282; Redgrave v. Redgrave, 38 Md. 93; Jones v. Reddick, 79 
 N. G. 290;, Gom. v. Stump, 53 Pa^ 132, 91 Am. Dec. 198; Hicks v. Cochran, 
 4 Edw. Ch. (N. T.) 107 ; White v. White, 82 Gal. 427, 23 Pac. 276, 7 L. R. A. 
 799; Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 783; FornshUl v. Murray, 
 
 1 Bland (Md.) 479, 18 Am. Dec. 344 ; Taylor v. Swett, 3 La. 33, 22 Am. Dec. 
 156; Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707; Chiles v. Drake, 
 
 2 Mete. (Ky.) 146, 74 Am. Dec. 406 ; Allen v. Hall, 2 Nott & McC. (S. G.) 114, 
 10 Am. Dec. 578 ; Holmes v. Holmes, 6 La. 463, 26 Am. Dec. 482 ; Sneed v. 
 Ewing, 5 J. J. Marsh. (Ky.) 460, 22 Am. Dec. 41; Stevenson's Heirs v. 
 McReary, 12 Smedes & M. (Miss.) 9, pi Am. Dec. 102; Sprung v. Morton 
 (D. C.) 182 Fed. 330; Parmer v. Towers, 106 Ark. 123, 152 S. W.. 993; 
 Smith V. People, 64 Colo. 290, 170 Pac. 959 ; Love v. Love (Iowa) 171 N. W. 
 257.; Jackson v. Claypobl, 179 Ky. 662, 201 S. W. 2; Rockcastle Mining, 
 Lumber & Oil Co. v. Baker, 167 Ky. 66, 179 S. . W. 1070 ; Marzette v. CTonk, 
 141 La. 437, 75 South. 107; In re Pitzglbbons' Estate, 162 Mich. 416, 127 N. 
 W. 313, 139 Am. St. Rep. 570; In re Biersack, 96 Misc. Rep. 161, 159 N. 
 T. Supp. 519; In re Hinman, 147 App. Div. 452, 131 N. Y. Supp. 861; Forbes 
 V. Burgess, 158 N. O. 131, 73 S. E. 792; Coleman v. James (Okl.) 169 Pac. 
 1064 ; Glarkson v. Washington, 38 Okl. 4, 131 Pac. 935 ; In re Meade's Es- 
 tate, 82 W. Va. 650, 97 S. E. 127; Suter v. Suter, 68 W. Va. 690, 70 S. E. 
 705, Ann. Gas. 1912B, 405. Reputation and cohabitation are not competent 
 to prove marriage, in an action for criminal conversation.- ■ Frederick v. 
 Morse, 88 Vt. 126, 92 Atl. 16. Nor in a prosecution for bigamy. U. S. v. Evan- 
 gelista, 29 Phil. Rep. 215. 
 
 7 7 For example, see Act Alaska, May 3, 1917, c. 56, § 14; Civ. Code Ariz. 
 1901, par. 3098; Ptib. St. N. H. 1901, c. 174, § 15; Code Civ. Proc. Gal. § 1963. 
 Presumption of marriage from conduct, declared by Code Civ. Proc. § 1963, 
 subd. 30, can have no effect where it appears that the only attempt to marry 
 was illegal and void,; a legal solemnization being necessary under Civ. 
 Code, § 55. In re Elliott's Estate, 165 Gal. 339, 132 Pac. 439. 
 
 7 8 O'Malley v. O'Malley, 46 Mont. 549, 129 Pac. 501, Ann. Gas. 1914B, 
 662; Bishop v. Brittain Inv. Co., 229 Mo. 699, 129 S. W. 668, Ann. Oas. 
 1912A, 868. 
 
§§ 19-21) FORMALITIES IN CELEBRATION 51 
 
 No fix?d or continuous period of time of cohabitation is, however,, 
 necessary." Repute is of significance only in so far as it ten ds to 
 show the intent of the parties, and consequently a divided opini on 
 as to repute is without probati ve force. ^° 
 
 Cohabitation, and repute may be shown for the purpose of raising 
 the presumption of a prior ceremonial marriage,*^ and also to es- 
 tablish the existence of a common-law marriage, especially where 
 at the time a ceremonial marriage was attempted, or an agreement 
 per verba de prsesenti was entered into, there was some impediment 
 to a valid marriage, such as the existence of a living spouse un- 
 divorced. In many jurisdi ction s the cqntinued cohabitation of_ the 
 parties after the removal of the im pp.dime.n t raises the presumpt ion 
 of a valid common-law marriage.*^ 
 
 7» Walton V. Walton (Tex. Civ. App.) 203 S. W. 133. 
 
 80 In re Boylngton's Estate, 157 Iowa, 467, 137 N. W. 949. Repute and 
 cohabitation, necessary at common law to create a presumption of marriage, 
 must be uniform and general, and can be established only by open and 
 undoubted acts of the parties. In re Baldwin's Estate, 162 Gal. 471, 123 
 Pac. 267 ; In re Patterson's Estate, 237 Pa. 24, 85 Atl. 75. 
 
 81 Weatherall v. Weatherall, 56 Wash. 344, 105 Pac. 822 (lack of au- 
 thority of person solemnizing marriage). Harlan v. Harlan (Tex. Civ.' App.)- - 
 125 S. W. 950 (failure to obtain license). 
 
 82 In re Wells' Estate, 123 App. Div. 79, 108 N. Y. Supp. 164, affirmed 194 
 N. Y. 548, 87 N. E. 1129; Penton v. Reed, 4 Johns. (N. Y.) 52, 4 Am. Dee. 
 244; Haywood v. Nichols, 99 Kan. 138, 160 Pac. 982; Wilson v. Burnett, 
 105 Misc. Rep. 279, 172 N. Y. Supp. 673 ; Prince v. Edwards, 175 Ala. 532, 57 
 South. 714; Adger v. Ackerman, 115 Fed. 124, 52 C. O. A. 568; Poole v. 
 People, 24 Colo. 510, 52 Pac. 1025, 65 Am. St. Rep. 245 ; Smith v. Reed, 145 
 G^a. 724, 89 S. B. 815, L. R. A. 1917A, 492; Huff v. Huff, 20 Idaho, 450,. 
 118 Pac. 1080 ; Schaffer v. Krestovnikow, 89 N. J. Eq. 549, 105 Atl. 239, af- 
 firming 88 N. J. Eq. 523, 103 Atl! 913, 88 N. J." Bq. 192, 102 Atl. 246 ; Teter 
 V. Teter, 101 Ind. 129, 51 Am. Rep. 742; Schuchart v. Schuchart, 61 Kan. 
 597, 60 Pac. 311, 50 L. R. A. 180, 78 Am. St. Rep. 342 ; In re Fitzgibbons' 
 Estate, 162 Mich. 416, 137 N. W. 313, 139 Am. St. Rep. 570; Barker v. 
 Valentine, 125 Mich. 336, 84 N. W. 297, 51 L. R. A. 787, 84 Am. St. Rep.. 
 578 ; State v. Worthingham, 23 Minn. 528 ; Busch v. Supreme Tent, 81 Mo. 
 App. 562; University of Michigan v. McGuckin, 62 Neb. 489, 67 N. W. 180, 
 57 L. R. A. 917, Oooley Casi Persons ^nd Domestic Relations, 6; Eaton y. 
 Eaton, 66 Neb. 676, 92 N. W. 995, 60 L. R. A. 605, 1 Ann. Oas. 199 ; Parker 
 V. De Bernardi, 40 Nev. 361, 164 Pac. 645 ; Chamberlain v. Chamberlain, 68 
 N. J. Eq. 736, 82 Atl. 680, 3 L. R. A. (N. S.) 244, 111 Am. St. Rep. 658; In 
 re McCausland, 213 Pa. 189, 62 Atl. 780, 110 Am. St. Rep. 540; Davis v. 
 Whitlock, 90 S. C. 233, 73 S. B. 171, Ann. Oas. 1913D, 538 ; Gorman v. Gorman 
 (Tex. Civ. App.) 366 S. W. 123; Edelsteln v. Brown, 100 Tex. 403, 100 S. W. 
 129, 123 Am. St. Rep. 816. See Code Iowa 1897, § 3151; Rev. Laws Mass. 
 0. 151, § 6; St. Wis. 1917, § 2339n24. But see Compton v. Benham, 44 
 Ind. App. 51, 85 N. E. 365 ; People v. Shaw, 259 111. 544, 102 N. B. 1031, L. 
 R. A. 1915B, 87; Blanks v. Southern Ry. Co., 82 Miss. 703, 35 South. 570;. 
 
52 MARRIAGE (Ch. 1 
 
 The rule is probably ,a.UB licab le o nly in cases where the parties , 
 or at least one of them, acted in good faith and in ig-noratice of th e 
 existence of the impediment. It has, been held in several cases 
 that, if the parties knew of the impediment, their relations were 
 meretricious, and the presumption is that the illicit relation con- 
 tinued.?^ The presumption of the existence of a valid marriage 
 thus arising from cohabitation and repute does not involve an as- 
 sumption that the marriage took place- at any particular place- or 
 time, or in any particular manner, but merely that a legal marriage 
 existed.'* 
 
 Presumption Not Conclusive 
 
 Though the presumption of marriage arising from cohabitation 
 and repute is very strong, it is not conclusive, b ut may be re- 
 butted.'^ The presumption is rebutted, for instance, by proof that 
 the parties separated without apparent cause, and one of them 
 married some other person." The presumption does not arise, or 
 is rebutted. and overcome, if it appears that the cohabitation was 
 meretricious in its inception, and, when shown to have been illicit 
 in its origin, it will be presumed, in the absence of anything show- 
 ing 'otherwise, that its continuance was illegal; and the burden 
 is on the person setting up the marriage to show it independently 
 
 Hilliard v. Baldwin, 76 N. H. 142, 80 AU. 139; HaU v. Industrial Commis- 
 sion, 165 Wis. 364, 162 N. W. 312, D. R. A. 1917D, 829. But the rule in 
 Wisconsin is probably changed by Rev. St. 1917, § 2339n24. 
 
 83Voorhees v. Voorhees, 46 N. J. Eq. 411, 19 Atl. 172, 19 Am. St. Rep. 
 404; Foster v. Hawley, 8 Hun (N. Y.) 68; Duncan v. Duncan, 10 Ohio St. 
 181; Clark v. Barney, 24 Okl. 455, 103 Pac. 598; Hunt's Appeal, 86 Pa. 
 294 ; In re Morris' Estate, "92 Misc. Rep; 630, 157 N. Y. Supp. 472. But 
 see University of Michigan v. McGuckin, 62 Neb. 489, 87 N. W. ISO, 57 L. 
 R. A. 917, Cooley Cas. Persons and Domestic Relations, 6. 
 
 8* In re Hinman, 147 App. Div. 452, 131 N. T. Supp. 861. 
 
 85 Forbes v. Countess of Strathmore, Ferg. Const. 113 ; Reg. v. Millis, 10 
 Clark & F. 534, 782 ; Robertson v. State, 42 Ala. 509 ; Port v. Port, 70 111. 484 ; 
 Jackson v. Winiie, 7 Wend. (N. Y.) 47, 22 Am. Dec. 563 ; Peck v. Peck, 12 r'. 
 I. 488, 34 Am. Rep. 702; Stoltz v. Doering, 112 111. 234; Hebblethw'aite v' 
 Hepworth,.98 111. 126; Dumaresly v. Fishly, 3 A. K. Marsh. (Ky.) 368; Shar- 
 on V. Sharon, 79 Cal. 633, 22 Pac. 26 ; Van Tuyl v. Van Tuyl, 57 Barb.' (N T ) 
 235 ; Fames v. Woodson, 120 La. 1031, 46 South. 13 ; Nelson v. Carlson 48 
 Wash. 651, 94 Pac. 477; In re Hinman, 147 App. Div. 452, 131 N Y Supp 
 S61 ; In re Baldwin's Estate, 162 Cal. 471, 123 Pac. 267 ; Le Suer v. Lp Suer' 
 122 Minn. 407, 142 N. W. 593 ; Meehan v. Edward Valve & Mfg Co 65 Ind' 
 App. 342, 117 N. E. 265. '' 
 
 8 8 Weatherford v. Weatherford, .20 Ala. 548, 56 Am. Dec. 206; Jones v 
 Jones, 48 Md. 391, 30 Am. Rep. 466; In re Campbell's Estate, 12 Cal Apn' 
 707, 108 Pac. 669, rehearing denied 12 Cal. App. 707, 108 Pac. 676. 
 
§§ 19-21) FORMALITIES IN CELEBRATION 53 
 
 of the presumption.'^ But the presumption that the relations orig- 
 inally meretricious continue to be illicit may itself be overcome by 
 positive evidence.*' Thus it has been held in New Jersey that a 
 cohabitation meretricious in its origin became matrimonial when, 
 on information of the death of the woman's first husband, remov- 
 ing the only impediment to the marriage, the man declared to her 
 that she was his wife, .and thereafter both by habit, conduct, and 
 declarations both held themselves out as husband and wife.'* 
 
 ■87 Cartwright v. McGown, 121 111. 388, 12 N. B. 737, 2 Am. St. Rep. 105 ; 
 Duncan v. Duncan, 10 OMo St. 181 ; Cheney v. Arnold, 15 N. Y. 345, 69 Am. 
 Dec. 609; Floyd v. Calvert, 53 Miss. 37; Eandlett v. Eice, 141 Mass. 385, 6 
 N. B. 238 ; Harbeck v. Harbeck, 102 N. Y. 714, 7 N. E. 408 ; Appeal of Read- 
 ing Fire Ins. & Trust Co., 113 Pa. 204, 6 Atl. 62, 5i7 Am. Rep. 448; In re 
 Gall's Will (Sur.) 9 N. Y. Supp. 466; Cram v. Burnham, 5 Greenl. (Me.) 
 213, 17 Am. Dee. 218 ; Peck v. Peck, 12 R. I. 485, 34 Am. Rep. 702 ; Port v. 
 Port, 70 111. 484; Stans v. Baitey, 9 Wash. 115, 37 Pac. 316; Van Dusan 
 V. Van Dusan. 97 Mich. 70, 56 N. W. 2.34 ; Pearce v. Pearce, 16 S. W. 271, 
 13 Ky. Law Rep. 67; Drawdy v. Hesters, 130 Ga. 161, 60 S. E. 451, 15 L. 
 R. A. (N. S.) 190; Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568; Pike 
 V. Pike, 112 111. App. 243 ; Marks v. Marks, 108 111. App. 371 ; Bell v. Clarke, 
 45 Misc. Rep. 272, 92 N. Y. Supp. 163 ; Weatherall v. Weatherall, 63 Wash. 
 526, 115 Pac. 1078 ; In re Farley's Estate, 91 Misc. Rep. 185, 155 N. Y. Supp. 
 63 ; In re Eichler, 84 Misc. Rep. 667, 146 N. Y. Supp. 846 ; Bellinger v. De- 
 vine, 269 111. 72, 109 N. E. 666; Bey v. Bey, 83 N. J. Eq. 239, 90 Atl. 684; 
 Si;encer v. Spencer, 84 Misc. Rep. 264, 147 N. Y. Supp. Ill ; Wilson v. Bur- 
 nett, 105 Misc. Rep. 279, 172 N. Y. Supp. 673 ; In re Svendsen's Estate, 37 
 S. D. 35.3. 158 N. W. 410; MoUer v. Sommer, 86 Misc. Rep. 110, 349 N. Y. 
 Supp. 103, judgment affirmed 165 App. Div. 990, 150 N. Y. Supp. 1097; 
 Howard v. Kelly, 111 Miss. 285, 71 South. 391, Ann. Ca.?. 1918E, 1230; In re 
 FuUer's Estate, 250 Pa. 78, 95 Atl. 382 ; In re Boyington's Estate, 157 Iowa, 
 467, 137 N. W. 94^; Gorden v. Gorden, 283 111. 182, 119 i^. E. 312; In re 
 Patterson's Estate, 237 Pa. 24, 85 Atl. 75 ; Meehan v. Edward Valve & Mfg. 
 Co., 65 Ind. App. .342, 117 N. E. 265 ; Voorhees v. Voorhees, 46 N. J. Eq. 411, 
 19 Atl. 172, 19 Am. St. Rep. 404 ; Clark v. Barney, 24 Okl. 459, 103 Pac. 598. 
 
 ssKnecht v. Knecht, 261 Pa. 410, 104 Atl. 676; Schaffer v. Krestovnikow, 
 89 N. J. Eq. 549, 105 Atl. 239, affirming 88 N. J. Eq. 523, 103 Atl. 913, 88 ISl. 
 J. Eq. 192, 102 Atl. 246 ; Howard v. Kelly, 111 Miss. 285, 71 South. 391, Ann. 
 Cas. 1918B, 1230. Where cohabitation was illicit in beginning, though bur- 
 den of proof Is upon those asserting a valid marriage,, there is no presump- 
 tion that relationship continued to be illicit, and a valid common-law mar- 
 riage may be shown after impediment to marriage was removed. Parker v. 
 De Bernardi, 40 Nev. 361, 164 Pac. 645. And see Darling v. Dent, 82 Ark. 
 76, 100 S. W. 747. 
 
 soSchafCer v. Krestovnikow, 89 N. J. Eq. 549, 105 Atl. 239, affirming 88 
 N. J. Eq. 523, 103 Atl. 913, 88 N. J. Eq. 192, 102 Atl. 246. And see Bey v. 
 Bey, 83 N. J. Eq. 239, 90 Atl. 684. 
 
54 MAEKlJiGE (Qh- 1- 
 
 Marriage by Proxy 
 
 Marriage by proxy has been recognized in some Oriental coun- 
 tries, and in Europe in some instances among members of royal 
 families. Brissand, in his History of French Private Law, says 
 that, marriage through an agent was looked upon as lawful, calling 
 attention to the marriage of Frederick III and Eleanor of Portugal 
 and of Maximilian and Anne of Brittany. "After the Council of 
 Trent, 1563, the celebration of a marriage through an agent has 
 no meaning, for it does not do away with the necessity of another 
 celebration taking place between the parties themselves, though a 
 notable example of such marriage was that of Henry IV and 
 Marie de Medici." «" 
 
 Whatever may have been the law governing the right of one of 
 the parties to a marriage to authorize another to act in his name, 
 the modern tendency, as shown by dicta, is opposed to marriage 
 by proxy, and is to the effect that the solemnization of marriage 
 through an agent would not be tolerated. The act of marrying is 
 too personal an obligation to be delegated to any person. An emi- 
 nent authority has said: "Contracts to marry may doubtless be 
 made throug'h a messenger, but general authority to make marriage 
 engagements would doubtless not be upheld, and as to the act of 
 marriage the substitution of an agent or representative, while at 
 times allowed to princes, would not be tolerated generally." °^ 
 
 Indian Marriages 
 
 Although an Indian tribe, recognized as such, may be located 
 within state lines, yet so long as their tribal customs are adhered 
 to, and the federal government manages their affairs by agents, 
 they are not to be regarded as subject to state laws, so far as mar- 
 riage is concerned; and therefore marriages between members of 
 Indian tribes in tribal relations, valid by the customs and laws of. 
 the tribe, and contracted at a time when there was no law of the 
 United States on the subject of Indian marriages must be recog- 
 
 «o Brissand, History of IVench Private Law (Continental Legal History 
 Series) vol. 2, pp. 103-106, note. 
 
 01 1 Mechem, Agency (2(1 Ed.) par. 126. The question has not been passed 
 upon directly by the courts, but dicta may be found in Commonwealth v. 
 Farmers' & Shippers' Tobacco Warehouse Co., 107 Ky. 1, 52 S. W. 799; 
 Republic of Hawaii v. Li Shee, 12 Hawaii, 329; In re Lum Ling Yins (D 
 C.) 59 Fed. 687. 
 
§§ 22-26) ANNULMENT AND AVOIDANCE OP MABEIAGES 55 
 
 nized as valid by the state courts though not in compliance with 
 the laws of the state.*^ 
 
 ANNULMENT AND AVOIDANCE OF MARRIAGES 
 
 22. Where a marriage is absolutely void, a suit to annvil it is not 
 
 necessary ; but such a suit will lie, and is advisable, in or- 
 der to have the invalidity of the marriage determined 
 judicially. 
 
 23. Where a marriage, though not absolutely void, is voidable by 
 
 the act of the parties, or one of them, as in case of nonage, 
 fraud, duress, etc., a suit to emnul the marriage is not 
 necessary, unless required by statute; but it may be 
 brought, as in the case of a void marriage, and is advisable. 
 
 24. In other cases of voidable marriage, a suit to annul the mar- 
 
 riage is necessary. It cannot be attacked collaterally. 
 
 25. If a marriage is absolutely void, it may be annulled at any 
 
 time, and may be attacked collaterally as well as directly, 
 and by third persons as well as by the parties. But if a 
 marriage is merely voidable, it must be annulled, if at all, 
 in the lifetime of the parties. 
 
 26. Annulment of a voidable marriage renders it void ab initio, 
 
 unless it is otherwise provided by statute. 
 
 Suits to annul a marriage must be distinguished from suits for a 
 divorce, which will be considered in a subsequent chapter. A suit 
 for a divorce supposes the existence of a valid mar riage, and a 
 decree of divorce annuls existing rights. A suit for nullity of a 
 marriage, on the other hand, is on the theory that there is no valid 
 
 »2Boyer v. Dively, 58 Mo. 529; Yakima Joe v. To-Is-Lap (O. C.) 191 Fed. 
 516; Kobogum v. Jackson Iron Co., 76 Mjch. 498, 4.S N. W. 602, and cases 
 cited; Earl v. Godley, 42 Minn. 361, 44 N. W. 254, 7 L. R. A. 125, 18 Am. 
 St. Eep. 517; Jolinson v. Jobnson's Adm'r, 30 Mo. 72, 77 Am. Dec. 598; 
 Moore v. Nah-con-be, 72 Kan. 169, 83 Pac. 400 ; First Nat. Bank v. Sharpe, , 
 12 Tex. Civ. App. 223, 83 S. W. 676 ; Oklahoma Land Co. v. Thomas, 34 Okl. 
 681, 127 Pac. 8; James v. Adams, 56 Okl. 450, 155 Pac. 1121; Meagher v. 
 Harjo (Okl.) 179 Pac. 757; Ortley v. Ross, 78 Neb. 339,*110 N. W. 982. But 
 compare Roche v.- Washington, 19 Ind. 53, 81 Am. Dec. 376 ; State v. Ta-cha- 
 na-tah, 64 N. C. 614. A marriage contracted according to the customs of an 
 Indian tribe need not be contracted in the territory of the tribe, to be valid. 
 La Riviere v. La Riviere, 97 Mo. 80, 10 S. W. 840. But see Roche v. Wash- 
 ington, 19 Ind. 53, 81 Am. Dec. 376, and Banks v. Galbralth, 149 Mo. 529, 51 
 S. W. 105. 
 
56 V, MARRIAGE (Ch. 1 
 
 marriag e-at all, and a decree of nullity declares that rights supposed 
 to have arisen from the attempted marriage never in fact existed."* 
 A decree of divorce annuls a. marriage only from the time it is 
 entered. A decree of nullity, unless a contrary rule is established 
 by statute, annuls the marriage ab initio and, in effect, declares 
 that there never has been any marriage."* Nevertheless in a prop- 
 er case a decree annulling, a marriage may be entered when the re- 
 lief asked is divorce, or under proper allegations by way of answer 
 or cross-bill in a suit for divorce. "° 
 
 As has been heretofore shown, a marriage may be absolutely 
 void or only voidable. Thus a marriage between persons, one of 
 whom has a spouse living under a prior, valid, and undissolved 
 marriage, is not merely voidable, but absolutely void."* The same 
 is true generally of a marriage between persons under disability 
 by reason of race or other civil conditions."^ " jy the weight_ of 
 authority, also, marriages entered into by lunatics are absolutely 
 void,"* though there is some authority for holding them merely 
 voidable . On the other hand, a marriage between persons within 
 the prohibited degrees of relationship are not void, but voidable."" 
 
 So, too, lack of physical capacity renders the marriage voidable 
 only, and not void.^ Though, when one of the parties is under the 
 age of seven, the marriage is void, generally the fact that the par- 
 ties are under the age of consent renders the marriage voidable 
 only.^ And where one of the parties was induced to enter into 
 the marriage by fraud, duress, or mistake, so that it is invalid, it 
 is not absolutely void, but voidable merely.' 
 , Where a marriage is absolutely void, and not merely voidable, 
 
 93 Millar V. Millar, 175 Cal. 797, 167 Pac. 394, L. R. A. 1918B, 415, Ann. 
 Gas. 1918E; 184. An action for divorce lies for causes subsequent to marriage ; 
 a suit in equity to annul a void or voidable marriage for those existing at 
 or prior to it. Henderson v. Ressor, 265 Mo. 718, 178 S. W. 175i. See, also, 
 Taylor v. White, 160 N. 0. 38, 75 S. B. 941, L. R. A. 1916C, 704. 
 
 »* Stew. Mar. & Div. § 141; Rawdon v. Eawdon, 28 Ala. 565; Powell v. 
 Powell, 18 Kan. 371, 26 Am. Rep. 774 ; Succession of Minvielle, 15 La. Ann. 
 342; Lincoln v. Lincoln, 29 N. Y. Super. Ct. 525; Wightman v. Wightman, 4 
 Johns. Ch. (N. Y.) 343; Smith v. Morehead, 59 N. 0. 360; Patterson v 
 Gaines, 6 How. 550', 582," 12 L. Ed. 553. 
 
 95 Bassett v. Bassett, 9 Bush (Ky.) 696; Nadra v. Nadra, 79 Mich. 591 
 44 N. W. 1046 ; Taylor v. Taylor, 173 N. Y. 266, 65 N. E. 1098. 
 
 96 See ante, p. 31. i See ante, p. 29. 
 9 7 See ante, p. 30. * See ante, p. 21. 
 'js See ante, p. 17. s See ante, p. 9. 
 
 9 9 See ante, p. 26. 
 
§§ 22-26) ANNULMENT AND AVOIDANCE OF MARRIAGES 57 
 
 a suit to annul it is not necessary. The question of its validity may 
 be raised at any time, either before or after the death of the parties, 
 or of either of them, and collaterally as well as directly, and by 
 strangers as well as by the parties themselves.* No rights what- 
 ever can arise out of a marriage that is absolutely void. 
 
 Voidable marriages may be avoided by the act of the parties 
 themselves, without going into court and obtaining a decree of 
 nullity; or they may be avoided only by a decree of the court, 
 according to the ground of objection.'' Thus, where one of the 
 parties is under the age of consent, the marriage may be avoided by 
 the act of the parties ; no decree of nullity being necessary." So it 
 has been said that a marriage induced by fraud or duress may be 
 avoided by the act of the party deceived or coerced.' 
 
 On the other hand, a marriage invalid because the parties were 
 within the prohibited degrees of relationship is avoided only by 
 decree of the court, and not by act of the parties themselves. The 
 same is true of marriages voidable because of impotence. 
 
 Where a marriage is merely voidable, and voidable by a decree 
 of nullity only, it is valid, unless a decree is obtained ; and the de- 
 cree must be made, if at all, during the lives of both parties.* Until 
 
 * Shelf. Mar. & Div. 479; 1 Bish. Mar.^ Div. & Sep. § 258; Cartwriglit 
 V. McGown, 121 lU. 388, 12 N. E. 737, 2 Am. St. Rep. 105; Wilson v. Brock- 
 ley, 1 PhlUim. Ecc. 132; Ferlat v. Gojon, Hopk. Ch. (N. Y.) 478, 493, 14 Am. 
 Dec. 554; Reeves v. Reeves, 54 111. 882; Hantz v. Sealy, 6 Bin. '(Pa.) 405; 
 Gathings v. Williams, 27 N. C. 487, 44 Am. Dec. 49; Hemming v. Price, 12 
 Mod. 432 ; Tefft v. Tefft, 35 Ind. 44 ; Patterson v. Ga,ines, 6 How. 550, 592, 12 
 L. Ed. 553; Fornshill v. Murray, 1 Bland (Md.) 479, 18 Am. Dec. 344; Town 
 of MounthoUy v. Town of Andover, 11 Vt. 226, 34 Am. Dec. 685; Rawdon 
 V. Rawdon, 28 Ala. 565; Inhabitants of Middleborough v. Inhabitants of 
 Rochester, '12 Mass. 363; Higgins v. Breen, 9 Mo. 497; Smart v. Whaley, 6 
 Smedes & M. (Miss.) 808; Inhabitants of Unity v. Inhabitants of Belgrade, 
 76 Me. 419 ; Henderson v. Ressor, 265 Mo. 718, 178 S. W. 175 ; In re Newlin's 
 Estate, 281 Pa. 812, 80 Atl. 255; Williams v. McKeene, 193 111. App. 615; 
 McCullen v. McCullenT 162 App. Div. 599, 147 N. Y. Supp. 1069 ; Williams 
 V. State, 44. Ala. 24. But see Fero v. Fero, 62 App. Div. 470, 70 N. Y. Supp. 
 742, and Wood v. Baker, 43 Misc. Rep. 310, 88 N. Y. Supp. 854, holding tbat, 
 in a suit by a parent to annul the marriage of a minor child, the latter must 
 be made a party. See, also, to the same effect, Aguilar v. Lavaro, «4 Phil. Rep. 
 735. 
 
 5A marriage contract is a nullity ab initio, requiring no judicial decree 
 for its dissolution, only where expressly so declared by statute. State v. 
 Toder, 113 Minn. 503, 180 N. W. 10, L. R. A. 19160, 686. 
 
 6 Walls V. State, 32 Ark. 565, 570 ; People v. Slack, 15 Mich. 193 ; McDeed v. 
 McDeed, 67 111. 545. 
 
 7 See Fooley v. Fooley, 04 Ala. 501, 10 South. 646, 33 Am. St. Rep. 141. 
 
 8 1 Bl. Comni. 484; Bonham v. Badgley, 2 Oilman (111.) 622; Cavell v. 
 
58 MAERIAGE (Ch. 1 
 
 it is made, the marriage is valid for all purposes." The children 
 are legitimate;^" the parties are entitled, respectively, to curtesy 
 and dower ; and all the other incidents of a valid marriage attach.^^ 
 
 After a decree of nullity, however, in the lifetime of the parties, 
 the marriage is void ab initio, and not merely from the date of the 
 decree.^^ The children are rendered illegitimate,^^ the parties have 
 no rights in each other's property,^* and communications formerly 
 made between them are no longer privileged.^'* In other words, 
 it is just as if no marriage had ever taken place. The same doc- 
 trines apply to a great extent to marriages voidable by the act of 
 the parties, without a decree of nullity. 
 
 In many respects the doctrines above .stated have been ratified 
 by statute or otherwise in the different states. So it has been held 
 m some jurisdictions that a marriage invalid because induced by 
 fraud can be avoided only by decree of annulment.^" The same rule 
 has been adopted in some states as to the avoidance of marriages 
 .because of nonage,^^ insanity,^* and physical incapacity.^" So, too. 
 
 Prince, L. E. 1 Exch. 246 ; White v. Lowe, 1 Redf. Sur. (N. X.) 376 ; Harrison 
 V. State, 22 Md. 468, 85 Am. Dec. 658 ; Combs v. Combs, 17 Abb. N. C. (N. Y.) 
 265 ; Gathings v. Williams, 27 N. C. 487, 44 Am. Dec. 49 ; Henderson v. Ees- 
 sor, 265 Mo. 718, 178 S. W. 175; FomsMU v. Murray, 1 Bland (Md.) 479, 
 18 Am. Dec. 344. 
 
 9 BUiott V. Gurr, 2 Pbillim. Ecc. 16. 
 
 10 2 Burn. Ecc. Law (Pbillim. Ed.) tit. "Marriage"; 1 Bish. Mar., Div. & 
 Sep. § 272. 
 
 11 1 Bl. Comm. 434; Bennington v. Cole, Noy, 29. 
 
 i2Augbtie V. Aughtie, 1 Pbillim. Ecc. 201 ; Perry v. Perry, 2 Paige (N. 
 Y.) 501. , 
 
 isAughtle V. Aughtie, 1 Pbillim. Ecc. 201. The common-law rule has been 
 changed by statute In many states. See post, p. 295. As to custody and sup- 
 port of 'children, after decree of nullity, see Mickels v. Pennell, 15 N. D. 188, 
 107 N. W. 53. 
 
 iiAughtie V. Aughtie, 1 Phillim. Ecc. 201; Kelly v. Scott, 5 Grat. (Va.) 
 479; SeUars v. Davis, 4 Terg. (Tenn.) 503. The court has authority, in a 
 decree of nullity, to make an equitable division of property jointly accumu- 
 lated by the parties while they lived together as husband and wife. Werner 
 V. Werner, 59 Kan. 399, 53 Pac. 127, 41 L. R. A. 349, 68 Am. St. Rep. 372. 
 
 10 Wells v. Fletcher, 5 Car. & P. 12. 
 
 16 Jordan v. Missouri & K. Telephone Co., 136 Mo. App. 192, 116 S. W. 432; 
 McCuUen v. McCullen, 162 App. Div. 599, 147 N. Y. Supp. 1069. 
 
 17 Mitchell V. Mitchell, 63 Misc. Rep. 580, 117 N. Y. Supp. 671; People 
 V. Ham, 206 111. App. 543 ; Owen v. Coffey, 201 Ala. 531, 78 South. 885. 
 
 1 8 Wolf V. Gall, 32 Cal. App. 286, 163 Pac. 346, rehearing denied in Su- 
 preme Court, 163 Pac. 350; In re Gregorson's Estate, 160 Cal. 21, 116 Pac. 
 60, L. R. A. 1916C, 697, Ann. Cas. 1912D, 1124. 
 
 19 Under Gen. St. Minn. 1913, §§ 7090, 7095, 7106, a marriage between par- 
 
|§ 22-26) ANNULMENT AND AVOIDANCE OP MAEEIAGES ' 59 
 
 a marriage invalid because the parties were within the prohibited 
 degrees of relationship can be avoided only by decree.^" 
 
 The fact that a marriage is absolutely void, or is voidable by the 
 act of the parties themselves, does not prevent the bringing of a 
 suit to have it annulled, for the purpose of having its invalidity 
 judicially established, and to fix the status of the parties. Such 
 a suit is always advisable. As was said by Chancellor Kent, 
 ""Though marriage with an idiot or lunatic be absolutely void, and 
 no sentence of avoidance be absolutely necessary, yet, as well for 
 the sake of the good order of society as for the peace of mind of all 
 persons concerned, it is expedient that the nullity of the marriage 
 should be ascertained and declared by the decree of a court of com- 
 petent jurisdiction." ^^ 
 
 Jurisdiction 
 
 Originally in England, suits to annul marriages were within the 
 jurisdiction of the ecclesiastical courts only.^^ Since no courts in 
 the United States have succeeded to the jurisdiction of the ecclesi- 
 astical courts,^^ and even courts of equity, as such, have no juris- 
 diction in cases of canonical disabilities,^* suits to annul a marriage 
 on these grounds depend entirely upon statutes in this country,^^ 
 and the same has been held to be ti;ue in case of prior marriage of 
 
 ties, one of whom was an epileptic, is voidable only, and valid until dissolved 
 by judicial decree. Kitzman v. Kitzman, 16T Wis. 308, 166 N. W. 789. 
 
 20 Tyler v. Andrews, 40 App. D. C. 100. 
 
 212 Kent, Comm. 76; Hayes v. Watts, 3 Phillim. Ecc. 44; Pertreis v. Ton- 
 dear, 1 Hagg. Consist. 138 ; Crump v. Morgan, 38 N. C. 91, 40 Am. Dec. 447 ; 
 McCullen v. McCuUen, 162 App. Div. 599, i47 N. Y. Supp. 1069 ; Rawdon 
 V. Rawdon, 28 Ala. 565 ; Powell v. Powell, 18 Kan. 371, 26' Am. Rep. 774. 
 
 22 Ridgely v. Ridgely, 79 Md. 298, 29 Atl. 597, 25 L. R. A. 800. 
 
 2 3 Anonymous, 24 N. J. Bq. 19; Peugnet v. Phelps, 48 Barb. (N. T.) 566; 
 Burtis V. Burtis, Hopk. Ch. (N. T.) 557, 565, 14 Am. Dec. 563; Perry v. Perry, 
 2 Paige (N. T.) 501 ; Bowers v. Bowers, 10 Rich. Bq. (S. C.) 551, 73 Am. Dec. 
 99-; Le Barron v. Le Barron, 35 Vt. 365. 
 
 24Anonymous, 24 N. J. Bq. 19; Burtis v. Burtis, Hopk. Ch. (N. T.) 557, 565, 
 14, Am. Dee. 563 ; Bowers v. Bowers, 10 Rich. Eq. (S. 0.) 551, 73 Am. Dec. 99. 
 
 2 5 Roth V. Roth, 97 Misc. Rep. 136, 161 N. Y. Supp. 99; Davidson v. Ream, 
 178 App. Div. 362, 164 N. Y. Supp. 1037, affirming 97 Misc. Rep. 89, 161 N. 
 Y. Supp. 13; Stokes v. Stokes, 198 N. Y. 301, 9il N. B. 793; Kelley v. Kelley, 
 161 Ma^. Ill, 36 N. E. 837, 25 L. R. A. 806, 42 Am. St. Rep. 389; Ridgely 
 V. Ridgely, 79 Md. 298, 29 Atl. 597, 25 L. R, A. 800. An action to annul a 
 marriage being purely statutory, when statutes expressly define exclusive 
 method of bringing such an action, court may not assert its original equity 
 jurisdiction,, independently of statute, to annul a contract. Reed v. Reed, 
 106 Misc. Rep. 85, 175 N. Y. Supp. 264. 
 
60 MAEBIAGB (Ch- 1 
 
 one of the parties.^' Many states have statutes giving jurisdiction 
 in suits for nullity of marriage.^' 
 
 Where a marriage is invalid on other grounds than because of 
 canonical disabilities, as on the ground of want of consent, arising 
 from insanity, fraud, duress, mistake, or any other cause, or perhaps 
 on the ground of some civil disability, like prior marriage, civil con- 
 dition, or nonage, or on the ground of illegal celebration, it is held 
 in this country that a suit to annul the marriage will lie, independ- 
 ently of any statutory authority therefor. Such suits are held to 
 be within the ordinary jurisdiction of courts of equity.^^ 
 
 POWER OF LEGISLATURE TO VALIDATE MARRIAGE 
 
 27. As the state has power to regulate and control marriages be- 
 tween its own citizens, the Legislature may confirm and 
 make valid marriages which were before voidable. 
 
 Marriage, since it creates the most important relation in life, and 
 is most closely interwoven with the very fabric of society, has al- 
 so Kelley v. Kelley, 161 Mass. Ill, 36 N. E. 837, 29 L. R. A. 806, 42 Am. St, 
 Eep. 389; French v. French, 74 Misc. Rep. 626, 131 N. T. Supp. 1053. 
 2 7 Stim. Am. St. Law, § 6112. 
 
 2 8Raw(Jon V. Rawdon, 28 Ala. 565, 567; Teflt v. TefCt, 35 Ind. 44, 50; 
 Powell V. Powell, 18 Kan. 371, 373, 26 Am. Bep. 774 ; Bassett v. Bassett, » 
 Bush (Ky.) 696, 697 ; Fornshill v. Murray, 1 Bland (Md.) 479, 483, 18 Am. Dec. 
 344 ; Helms v. Franclscus, 2 Bland (Md.) 544, 979, 20 Am. Dec. 402 ; True v. 
 Ranney, 21 N. H. 52, 53, 53 Am. Rep. 164; Keyes v. Keyes, 22 N. H. 553, 
 558 ; Henderson y. Ressor, 265 Mo. 718, 178 S. W. 175 ; Wimbrough v. Wim- 
 brough, 125 Md. 619, 94 Atl. 168, Ann. Cas. 1916E, 920; Roth v. Roth, 9T 
 Misc. Rep. 136, 161 N. T. Supp. 99; Beekermeister v. Beckermeister (Sup.) 
 170 N. Y. Supp. 22; McClurg v. Terry, 21 N. J. Eq. 226, 229; Anonymous, 
 24 N. J. Eq. 19, 20 ; Carris v. Carrls, 24 N. J. Bq. 516 ; Selah v. Selah, 2S 
 IN. J. Eq. 185; Avakian v. Avakian, 69 N. J. Eq. 89, 60 Atl. 521; Wight- 
 man V. Wightman, 4 Johns. Ch. (N. T.) 343, 345; Burtis v. Burtis, Hopk. 
 Ch. (N. T.) 557, 567, 14 Am. Dec. 563 ; Ferlat v. Gojon, Hopk. Oh. (N. Y.) 
 478, 494, 14 Am. Dec. 554; Perry v. Perry, 2 Paige (N. Y.) 501, 503; Scott 
 V. Shufeldt, 5 Paige (N. Y.) 43, 44; Johnson v. Kincade, 37 N. 0. 470, 475; 
 Crump V. Morgan, 38 N. C. 91, 98, 40 Am. Dec. 447; Waymire v. Jetmore, 
 22 Ohio St. 271, 274; Jellneau v. Jelineau, 2 Desaus. (S. O.) 45, 50; Almond 
 V. Almond, 4 Rand. (Va.) 662, 666, 15 Am. Dec. 781; Olark v. Fieid, 13 Vt. 
 460, 465; Le Barron v. Le Barron, 35 Vt. 365, 366. But see Pitcairn v. Pit- 
 calm, 201 Pa. 368, 50 Atl. 963, holding that Pennsylvania courts have no 
 jurisdiction to determine the validity of a marriage alleged to be void on 
 account of lunacy of one of the contracting parties, since this power has nev- 
 er been conferred on them by statute. - 
 
§ 28) PEESimPTION AND BURDEN OP PROOF CI 
 
 ways been subject to regulation and control by the state; ^^ and it 
 is well settled that the Legislature has power to validate or con- 
 firm by statute a marriage theretofore voidable because of some 
 statutory disability or neglect of some statutory requirement. This 
 question arose, and was carefully considered by the Court of Ap- 
 peals of Maryland, in Harrison v. State, ^° where the validity of a 
 statute validating marriages between • persons related within the 
 prohibited degrees of consanguinity and affinity, and which werey 
 before voidable, was attacked as unconstitutional as applied to 
 prior marriages. The act was upheld, however, as a valid exercise 
 of legislative power, like special acts of divorce. There are de- 
 cisions in many of the other states to the same effect.^^ 
 
 PRESUMPTION AND BURDEN OF PROOF 
 
 28. A marriage is presumed to be valid until the contrary is made 
 to appear. 
 
 Though the burden of proving the existence of a marriage is gen- 
 erally -on the person who asserts it,°^ yet, when the celebration of 
 a marriage is once shown, the law will presume, in the absence of 
 evidence to the contrary, the mutual consent of the parties, the 
 reality of consent, the capacity of the parties, and in fact every- 
 thing essential to the validity of the marriage, and the burden of 
 proving facts rendering it invalid is upon him who seeks to avoid 
 it.^^ The presumption applies in the case of a common-law mar- 
 riage or a marriage by Indian custom, as well as in the case of a 
 
 29 See ante, p. 6. 
 
 80 22 Md. 468, 85 Am. Dee. 658. "Such legislation," it was said, "is neither , 
 extraordinary, unconstitutional, nor unjust, but conservative, essential, and 
 salutary; being the only adequate means of healing or preventing inevi- 
 table wrongs, public and private." 
 
 31 Inhabitants of Town of Goshen v. Inhabitants of Stoiiington, 4 Conn. 
 209, 10 Am. Dee. 121 ; Baity v. Cranflll, 91 N. C. 293, 49 Am. Rep. 641 ; Moore 
 V. Whitaker, 2 Har. (Del.) 50; Andrews v. Page, 3 Heisk. (Tenn.) 653. But 
 see White v. White, 105 Mass. 325, 7 Am. Rep. 526. 
 
 32 Wilson V. Allen, 108 Ga. 275, 33 S. E. 975 ; In re Davis, 204 Pa. 602, 54 
 Atl. 475; Gorden v. Gorden, 283 111. 182, 119 N. E. 312; Americus Gas & 
 Electric Co. v. Coleman, 16 Ga. App. 17, 84 S. E. 493 ; Adams v. Wm. Cam- 
 eron & Co. (Tex. Civ. App.) 161 S. W. 417. 
 
 33 Cartwright v. McGown, 121 111. 388, 12 N. E. 737, 2 Am. St. Rep. 105 ; 
 McGaugh V. Mathis, 131 Ark. 221, 198 S. W. 1147; Wilcox v. Wilcox, 171 
 Cal. 770, 155 Pac. 95 ; In re Hughson's Estate, 173 Cal. 448, 160 Pac. 548 ; 
 Appeal of Eva, m Conn. 38, 104 Atl. 238; Caujolle v. Ferrie, 26 Barb. (N. 
 
62 MARRIAGE (^^- ^ 
 
 ceremonial marriage.'* The strength of the presumption depends, 
 of course, upon the circumstances of each particular case.'' While 
 the presumption may be rebutted, the rebutting evidence must be 
 strong, distinct, satisfactory, and conclusive.'" 
 
 Since the presumption is always in favor of the validity of a 
 marriage, a person who attacks a marriage as invalid on the ground 
 that one of the parties had been previously married to another 
 person does not fully meet the burden of proof that is upon him 
 by showing that there was a former valid marriage as he con- 
 tends ; " but he must go further, and show affirmatively that the 
 marriage had not been dissolved, either by the death of the other 
 party, or by a decree of divorce. Death of the former spouse, or 
 a divorce, will .be presumed, unless the contrary is made to ap- 
 pear, and the burden is on the person attacking the second mar- 
 riage to rebut this presumption.'^ "When it is shown that a mar- 
 
 Y.) 177; Fleming v. People, 27 N. Y. 329; Stroae v. Magowan's Heirs, 
 2 Bush (Ky.) 627 ; People v. Calder, 30 Midi. 85 ; . State v. Kean, 10 N. H. 
 347, 34 Am. Dec. 162; Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568; 
 Murchison v. Green, 128 Ga. 339,, 57 S. E. 709, 11 L. K. A. (N. S.) 702; 
 Bruns v. Cope, 182 Ind. 289, 105 N. B. 471 ; In re Lando's Estate, 112 Minn. 
 257, 127 N. W. 1125, 30 L. R. A. (N. S.) 940; Wilson v. Burnett, 105 Misc. 
 Rep. 279, 172 N. Y. Supp. 673; Marone v. Marone, 105 Misc. E«p. 371, 174 
 N. Y. Supp. 151; Copeland v. Copeland (Okl.) 175 Pac. 764; Kinney v. 
 Tri-State Tel. Co. (Tex. Civ. App.) 201 S. W. 1180; Barber v. People, 203 
 111. 543, 68 N. E. 93; Senge v. Senge, 106 111. App. 140; Sparks v. Ross, 72 
 N. J. Eq. 762, 65 Atl. 977; Potter v. Potter, 45 Wash. 401, 88 Pac. 625; 
 Thomas v. Thomas, 53 Wash. 297, 101 Pac. 865. Where the plaintifE estab- 
 lished the fact that the celebration of the marriage of her fatheri and 
 mother had taken place publicly before witnesses and before a regular min- 
 ister, and that the courthouse had subsequently been destroyed by fire, the 
 presumption is that the. proper preliminaries, such as the obtaining of a li- 
 cense, etc., had been complied with, and that it was a valid marriage. Clay- 
 ton V. Haywood, 63 Tex. Civ. App. 571; 133 S. W. 1082. See, also, Ollschlar- 
 ger's Estate, v. Widmer, 55 Or. 145, 105 Pac. 717. 
 
 34 Howard v. Kelly, 111 Miss. 285, 71 South. 391, Ann. Cas. 1918E, 1230; 
 Crickett v. Hardin, 60 Okl. 57, 159 Pac. 275. The presumption, arising from 
 cohabitation and repute, that a marriage was' entered into, has been con- 
 sidered elsewhere. See, ante, p. 49. 
 
 35 Schubert v. Barnholdt, 177 Iowa, 232, 158 N. W. 662. 
 se Matthes v. Matthes, 198 111. App. 515. 
 
 87 The presumption in favor of the legality of the second marriage is 
 not overcome by mere proof of a prior marriage. Lewis v. Lewis, 60 Okl. 
 60, 158 Pac. 368; Kinney v. Tri-State Telephone Co. (Tex. Civ. App.) 201 
 S. W. 1180; Town of Roxbury v. Town of Bridgewater, 85 Conn. 196 82 
 Atl. 193. 
 
 38 Potter v. Clapp, 203. 111. 592, 68 N. E. 81, 96 Am. St. Rep. 322 ; In re 
 Thewlis' Estate, 217 Pa. 307, 66 Atl. 519; Murchison v. Green, 128 Ga. 339, 
 
§ 28) PKESUMPTION AND BURDEN OF PROOF 63 
 
 riage has been consummated in accordance with the forms of law, 
 it is to be presumed that no legal impediments existed to their en- 
 tering into matrimonial relations ; and the fact, if shown, that ei- 
 ther or both of the parties, had been previously married, and, of 
 course, at a former time having a wife or husband living, does not 
 destroy the prima facie legality of the last marriage. The natural 
 inference in such cases is that the former marriage has been le- 
 gally dissolved, and the burden of showing that it has not been, 
 rests upon the party seeking to impeach the last marriage. The 
 law does not impose upon every person contracting a second mar- 
 riage the necessity of preserving the evidence that the former mar- 
 riage has been dissolved, either by death of their former consort or 
 by decree of court, in order to protect themselves against a bill for 
 divorce or a prosecution for bigamy." ^^ 
 
 So it has been held that when the presumption of validity of the 
 second marriage conflicts with the presumption of the continuance 
 of life, and neither presumption is aided by proof of facts or cir- 
 cumstances corroborating it, the presumption of the validity of 
 the marriage will prevail over the presumption of continuance of 
 
 57 S. B. 709, 11 I.. R. A. (N. S.) 702; Smith v. Fuller (Iowa) 108 N. W. 765; 
 Estes V. Merrill, 121 Ark. 361, 181 S. W. 136; McLaughlin v. McLaughlin, 
 201 Ala. 482, 78 South. 388; In re Blersack, 96 Misc. Rep. 161, '159 N. Y. 
 Supp. 519; Town of Roxbury v. Town of Bridgewater, 85 Conn. 196, 82 Atl. 
 193; Turner v. Williams, 202 Mass. 500, 89 N. B. 110, 24 L. R. A. (N. S.) 
 1199, 132 Am. St. Rep. 511 ; Gamble v. Rucker, 124 Tenn. 415, 137 S. W. 409 ; 
 Winter v. Dibble, 251 111. 200, 95 N. E. 1093; Goset v. Goset, 112 Ark. 47, 
 164 S. W. 759, L. R. A. 19160, 707; In re Hughson's Estate, 173 Oal. 448, 
 160 Pae. 548; Copeland v. Copeland (Okl.) 175 Pac. 764; Thomas v. James, 
 (Okl.) 171 Pac. 855; Howard v. Kelly, 111 Miss. 285, 71 South. 391, Ann. 
 Gas. 1918E, 1230; Schaffer v. Richardson's Estate, 125 Md. 88, 93 Atl. 391, 
 L. R. A. 1915E, 186; Maier v. Brock, 222 Mo. 74, 120 S. W. 1167, 133 Am. 
 St. Rep. 513; Same v. Waters, 222 Mo. 102, 120 S. W. 1174; Killackey v. 
 Killackey, 156 Mich. 127, 120 N. W. 680 ; Tanton v. Tanton (Tex. Civ. App.) 
 209 S. W. 429; Ricard v. Ricard, 143 Iowa, 182, 121 N. W. 525, 26 L. R. A. 
 (N. S.) 500, 136 Am. St. Rep. 762, 20 Ann. Cas. 1346 ; In re Salvin's Will, 
 106 Misc. Rep. Ill, 173 N. Y. Supp. 897; Price v. Tompkins (Sup.) 171 N. 
 Y. Supp. 844, order affirmed 186 App. Div. 915, 172 N. Y. Supp. 915 ; Jones 
 V. Jones (Okl.) 164 Pac. 463, L. R. A. 1917E, 921 ; Schaffer v. Krestovnikow, 
 88 N. J. Bq. 192, 102 Atl. 246; McGaugh v. Mathis, 181 Ark. 221, 198 S. W. 
 1147 ; In re Meehan's- Estate, 150 App. Div. 681, 135 N. Y. Supp. 723 ; Jack- 
 son v. Phalen, 237 Mo. 142, 140 S. W. 879; Id., 237 Mo. 153, 140 S. W. 882; 
 Wingo V. Rudder (Tex. Civ. App.) 120 S. W. 1073. But see Succession of 
 Thomas, 144 La. 25, 80 South. 186; Staley v. State, 87 Neb. 539, 127 N. W. 
 878. 
 
 38 Harris v. Harris, § 111. App. 57. 
 
64 MAEEIAGE (Ch. ll 
 
 the particular life, though the time elapsing since the last knowl- 
 edge of the former spouse and the second marriage is much less 
 than seven years.*" And where the former spouse is still living 
 it will be presumed that the prior marriage has been dissolved by- 
 divorce." This presumption is so strong that the oqe attacking 
 the legality of the second marriage must prove that neither party 
 to the first marriage obtained a divorce, though this involves prov- 
 ing a negative.*^ It is generally sufficient to overcome the pre- 
 sumption if it is shown that the records of the courts of the county 
 or counties in which the parties lived show no divorce.*^ 
 
 The presumption of the validity of the second marriage is, of 
 
 4oMurcliison v. Green, 128 Ga. 339, 57 S. B. 709, 11 L. R. A. (N. S.) 702; 
 Rex V. Inhabitants of Twynlng, 2 Barn. & Aid. 386; Greensboro v. Un- 
 derbill, 12 Vt. 604; Harris v. Harris,. 8 111. App. 57; Yates v. Houston,, 
 3 Tex. 4®; Senser v. Bower, 1 Pen. & W. (Pa.) 450; Jobnson v. Jobnson, 
 114 111. 611, 3 N. E. 232, 55 Am. Rep. 883 ; Dixon v. People, 18 Mich. 84 ; 
 Commonwealth v. Boyer, 7 Allen (Mass.) 306; In re Biersaclj, 96 Misc. 
 Rep. 161, 159 N. T. Supp. 519; Howard v. Kelly, 111 Miss. 285, 71 South. 
 391, Ann. Cas. 1918E, 1230; Sullivan v. Grand Lodge, K. P., 97 Miss. 218, 
 52 South. 360 ; Spears v. Burton, 31 Miss. 547 ; Wilkie v. Collins, 48 Miss. 
 496; Cash v. Cash, 67 Ark. 278, 54 S. W. 744; Vreeland v. Vreeland, 78 
 N. J. Eq. 256, 79 Atl. 336, 34 L. R. A. (N. S.) 940. 
 
 *i Schmisseur v. Beatrle, 147 111. 210, 35 N. E. 525; Harvey v. Carroll, 
 5 Tex. Giv. App. 324, 23 S. "W. 713 ; Squire v. State, 46 Ind. 459 ; Boulden v. 
 Mclntire, 119 Ind. 574, 21 N. E. 445, 12 Am. St. Rep. 453; Blanchard v. 
 Lambert, 43 Iowa, 228, 22 Am. Rep. 245 ; piein v. Landman, 29 Mo. 259 ; Hull 
 V. Rawls, 27 Miss. 471; McCarty v. McCarty, 2 Strob. (S. C.) 6, 47 Am. 
 Dec. 585; Carroll v. Carroll, 20 Tex. 731; In re Edwards' Estate, 58 
 Iowa, 431, 10 N. W. 793; Wenning v. Teeple, 144 Ind. 189, 41 N. E. 600; 
 McCord V. McCord, 13 Ariz. 377, 114 Pac. 968; Ross v. Sparks, 79 N. 
 J. Eq. 649, 83 Atl. 1118, affirming order Sparks v. Ross, 79 N. J. Eq. 99, 80 
 Atl. 932; James v. Adams, 56 Okl. 450, 155 Pac. 1121; Copeland v. Cope- 
 land (Okl.) 175 Pac. 764; Aldridge v. Aldridge, 116 Miss. 385, 77 South. 
 150; Lewis v. Lewis, 60 Okl. 60, 158 Pac. 368; Gamble v. Rucker, 124 
 Tenn. 415, 137 S. W. 499; Huff v. Huff, 20 Idaho, 450, 118 Pao., 1080; 
 Shepard v. Carter, 86 Kan. 125, 119 Pa<:. 533, 38 L. R. A. (N. S.) 568; Lyon 
 V. Lash, 79 Kan. 342, 99 Pac. 598; Maier v. Brock, 222 Mo. 74, 120 S. W. 
 . 1167, 133 Am. St. Rep. 529 ; Maier v. Waters, 222 Mo. 102, 120 S. W. 1174 ; 
 Wingo v. Rudder (Tex. Civ. App.) 120 S. W. 1073. 
 
 42 Lewis v. Lewis, 60 Okl. 60, 158 Pac. 368; Winter v. Dibble, 251 111. 200, 
 95 N. E. 1093; Estes v. Merrill, 121 Ark. 361, 181 S. W. 136; Chancey v. 
 Whinnery (Okl.) 147 Pac. 1036. A divorce should not be presiuned, where 
 the evidence is positive it does not exist, and party a.lleging it shows only 
 an alleged declaration of the deceased spouse to that effect during his life- 
 time. Succession of Thomas, 144 I^a. 25, 80 South. 186. 
 
 *3 Schmisseur v. Beatrie, 147 111. 210, 35 N. E. 525; Barnes v. Barnes, 
 90 Iowa, 282, 57 N. W. 851; Smith v. Fuller, 138 Iowa, 91, 115 N W 912* 
 16 li. R. A. (N. S.) 98. 
 
§ 29) CONSTRUCTION OP STATUTES 65 
 
 course, rebuttable ; but it can be overcome only by clear and con- 
 vincing evidence.** 
 
 CONSTRUCTION OF STATUTES 
 
 29. Statutes governing marriages are to be construed in the light 
 of the law as it existed prior to their enactment ; and, un- 
 less the intention of the Legislature to that effect is clear, 
 they will not be held to avoid marriages that were valid at 
 common law, or to otherwise change the common law. 
 
 . It has been seen, in treating of formalities in the. celebration of 
 a marriage, that at common law none were required, and that where 
 the Legislature prescribes formalities, as where it requires a license, 
 or consent of parents, or designates persons who shall be compe- 
 tent to perform the marriage ceremony, the statute is not to be 
 construed as invjilidating common-law, informal marriages, unless 
 it expressly declares that failure to observe the formalities pre- 
 scribed shall render the marriage void.*" An intent to change the 
 common law must be clear. "Though in most, if not all, the United 
 States, there are statutes regulating the celebration of marriage 
 rites, and inflicting penalties on all who disobey the regulations, 
 yet it is generally considered that, in the absence of any positive 
 statute declaring that all marriages not celebrated in the prescribed 
 manner shall be void, or that none but certain magistrates or min- 
 isters shall solerhnize a marriage, any marriage regularly made ac- 
 cording to the common law, without observing the statute regula- 
 tions, would still be a valid marriage." *^ "A statute may declare 
 that no marriages shall be valid unless they are solemnized in a 
 prescribed manner ; but such an enactment is a very different thing 
 from a law requiring all marriages to be entered into in the presence 
 of a magistrate or a clergyman, or that it be preceded by a license 
 or publication of banns, or be attested to by witnesses. Such for- 
 
 44 Gamble v. Rucker, 124 Tenn. 415, 137 S. W. 499 ; Schafeer v. Krestov- 
 nikow, 88 N. J. Eq. 192, 102 Atl. 246; In re Salvin's Will, 106 Misc. Rep. 
 Ill, 173 N. Y. Supp. 897; Schubert v. Barnhoidt, 177 Iowa, 232, 158 N. W. 
 662; Jackson v. Phalen, 237 Mo. 142, 140 S. W. 879; Same v. Phelan, 
 237 Mo. 153, 140 S. W. 882. 
 
 45Ante, p. 37, and cases there collated. But see In re McLaughlin's Es- 
 tate, 4 Wash. 570, 30 Pac. 651, 16 U R. A. 699. 
 
 46 2 Greenl. Bv. § 460, quoted with approval in Meister v. Moore, 96 U. S. 
 79, 24 L. Ed. 826. 
 
 TIFF.P.& D.Rel.(3d Ed.)-5 
 
66 - ' MARBUGE (Ch. 1 
 
 mal provisions may be construed as merely directory, instead of 
 being treated as destructive of a common-law right to form the 
 marriage relation by words of present assent. And such, we think, 
 has been the rule generally adopted in construing statutes regulat- 
 ing marriage. Whatever directions they may give respecting "its 
 formation or solemnization, courts have usually held a marriage 
 good at common law to be good notwithstanding the statutes, un- 
 less they contain express words of nullity." " 
 
 On the same principle of construction, it has been held that a 
 statute which declares a marriage void (as for canonical disabili- 
 ties), but does not express any intention on the part of the Legis- 
 lature to charige the pre-existing law, will not be construed as 
 rendering absolutely void a marriage which "was formerly only 
 voidable by a decree of nullity in the lifetime of the parties. It' 
 was said, in a case holding this principle: "The disabilities enu- 
 merated are all canonical disabilities, and not those known to the 
 law as 'civil disabilities.' Canonical disabilities were such as ren- 
 der the marriage,, voidable, and not void. They require the judg- 
 ment of an ecclesiastical court, during the lives of the parties, to 
 make them effective as causes of a divorce. On the other hand, 
 civil disabilities, such as arose pro defectu consensus, for want 
 of a capacity to contract, or mental infirmity, ipso facto avoided 
 marriage without the action of the courts. When the Legislature 
 declared by statute that persons laboring under canonical disabili- 
 ties should not marry under certain penalties, but such marriages 
 should be void, and gave jurisdiction to the general court to hear 
 and determine upon such marriages, it is to be supposed they de- 
 signed to put persons laboring under such disabilities in the same, 
 position they were at common law — viz. they should be void, when 
 established by the judgment of a court, in the life of the parties to 
 the jnarriage — not to confound canonical and civil disabilities, and 
 destroy the distinction between them." ** 
 
 So, also, where a statute declared that persons under the ao-e 
 of 17 should not be capable of marrying, and that the marriage of 
 persons incapable of marrying should be void, it was held that a 
 
 *7 Meister v. Mo6re, 96 U. S. 76, 24 L. Ed. 826. And see cases cited ante 
 p. 39. 
 
 48 Harrison v. State, 22 Md. 468, 85 Am. Dec. 658. And see Bonham v 
 Badgley, 2 Gilman (111.) 622 ; Parker's Appeal, 44 Pa., 309 ; Com. v. Perry- 
 man, 2 Leigh (Va.) 717; Bowers v. Bowers, 10 Rich. Eq. (S. C.) 551 73 Am 
 Dec. 99. 
 
§ 30) CONFLICT OP LAWS 67 
 
 marriage by a boy 16 years of age could be confirmed and ratifie*d 
 by him on reaching his seventeenth year.** The court construed 
 the statute as not changing the common-law rule as to the effect of 
 marriages by persons under the age of consent. 
 
 CONFLICT OF LAWS 
 
 30. As a rule, the validity of a marriage is determined by the law 
 of the place where it was entered into. 
 
 It is well settled that, as a general rule, the validity of a mar- 
 riage is to be determined by the law of the place where it is en- 
 tered into."" As it is generally expressed, a marriage that is valid 
 where made is valid everywhere, and a marriage that is void where 
 made is void everywhere."^ 
 
 *» Smith V. Smith, 84 Ga. 440, 11 S. E. 496, 8 I/. R. A. 362. And see Her- 
 vey V. Moseley, 7 Gray (Mass.) 479, 66 Am. Dec. OT.5 ; Inhabitants of Hiram 
 V. Pierce, 45 Me. 367, 71 Am. Dee. 555; Holtz v. Dick, 42 Ohio St. 23, 51 Am. 
 Rep. 791, and cases above cited. 
 
 60 The law of the state where a marriage takes place governs its legality, 
 rather than that of the residence of the parties. Reifschneider v. Relfschnei- 
 der, 241 111. 92, 89 N. B. 255, affirming judgment 144 111. App. 119; Hender- 
 son V. Ressor, 265 Mo. 718, 178 S. W. 0.75. And see cases cited in note. 
 Where a man sent a woman residing in Missouri a written contract, signed 
 by him, stating that the parties would henceforth be husband and wife and 
 so conduct themselves, the laws of Missouri, where the woman laccepted the 
 contractual offer, govern. Great Northern Ry. Oo. v. Johnson, 254 Fed. 683, 
 166 O. C. A. 181. It is a settled rule of private international l^w that the 
 statutes as to marriage of a foreigner in his own country would be recognized 
 in any other country which he may select as his place of abode. Miller V. 
 Miller, 70 Misc. Rep. 368, 128 N. T. Supp. 787. See also In re Dando's Estate, 
 112 Minn. 257, 127 N. W. 1125, 30 L. R. A. (N. S.) 940. In this case the 
 parties were citizens of Minnesota, but the acts constituting the contract of 
 marriage took place in Germany. The German law provides that the va- 
 lidity of a marriage of aliens Is to be determined by the law of the country 
 of which the parties were subject. As the acts relied on to show a mar- 
 riage would have been sufficient if performed in Minnesota, it was held that 
 the marriage was valid. 
 
 5.1 Roach V. Garvan, 1 Ves. Sr. 159; Warrender v. Warrender, 2 Clark & 
 P. 488; Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. Dec. 549; In re Lum 
 Lin Ting (D. C.) 59 Fed. 682 ; Stevenson v. Gray, 17 B. Mon. (Ky.) 193 ; Du- 
 maresly v. Fishly, 3 A. K. Marsh. (Ky.) 368; True v. Ranney, 21 N. H. 52, 
 53 Am. Dec. 164 ; Hutching v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164 ; Van 
 Voorhis v. Brintnall, 86 N. Y. 18, 40 Am. Rep. 505; Moore v. Hegeman, 92 
 N. Y. 521, 44 Am. Rep. 408; Thorp v. Thorp, 90 N. Y. 602,. 43 Am. Rep. 189; 
 Fornshlll v. Murray, 1 Bland (Md.) 479, 18 Am. Dec. 344; Pensterwald ■ v. 
 Burk, 129 Md. 131, 98 Atl. 358, 3 A. L. R. 1562 ; Tyler v. Andrews, 40 App. 
 D. C. 100; Sehofield v. Schofield, 51 Pa. Super. Ot. 564; Petras v. Petras 
 
68 MARRLA.GE (Ch. 1 
 
 The law of the place where the marriage was entered into gov- 
 erns with respect to the matrimonial capacity of the parties, as well 
 as with respect to the manner or form of solemnization of the 
 marriage."^ Thus it has been held that a marriage of first cousins, 
 .valid in the state of their residence, will be regarded as valid in 
 another state, though the marriage of first cousins is prohibited in 
 the latter state and the marriage, if entered into there, would have 
 been invalid."^ Similarly it has been held in Florida that, though 
 niarriages between whites and negroes are invalid in that state, 
 yet if a marriage between a white person and a negro takes place 
 in a state where such marriages are valid, it will be recognized as 
 a valid marriage' in Florida.'* 
 
 A marriage invalid in the country or state where it was made may 
 be valid as a common-law marriage in another state. Thus in a 
 New York case it was held that a marriage between a man and a 
 
 (Del. Super.) 105 Atl. 835; In re Lando's Estate, 112 Jlinn. 257, 127 N. W. 
 1125, 30 L. K. A. (N. S.) 940; OUschlager's Estate v. Widmer, 55 Or., 145, 
 105 Pac. 717; Nehring v. Nehring, 164 111. App. 527 ; Powell v. Powell, 207 
 111. App. 292, judgment affirmed 282 111. 357, 118 N. B. 786 ; Sutton v. War- 
 ren, 10 Mete. (Mass.) 451; Com. v. Graham, 157 Mass. 75, 31. N. E. 706, 16 
 L. E. A. 578, 34 Am., St Rep. 255; Inhabitants of Hiram v. Pierce, 45 Me. 
 367, 71 Am. Dec. 555; Johnson v. Johnson's' Adm'r, 30 Mo. 72, 77 Am. Dec. 
 598; Inhabitants of Medway v. Inhabitants of Keedham, 16 Mass. 157, 8 
 Am. Dec. 131; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752; Bills v. State, 
 61 Neb. 589, 85 N. W. 836, 57 L. R. A. 155 ; Darling v. Dent, 82 Ark. 76, 100 
 S. "W. 747; McHenry v. Brackin, 93 Minn. 510, 101 N. W. 960; Travers v. 
 Reinhardt, 25 App. D. C. 567; Eeid v. Reid, 72 Misc. Rep. 214, 129 N. Y. 
 Supp. 529; In re Kutter's Estate, 79 Misc. Rep. 74, 139 iN. Y. Supp. 693: 
 Davidson v. Ream, 97 Misc. Rep. 89, 161 N. Y. Supp. 73; In re Spondre, 98 
 Misc. Rep. 524, 162 N. Y. Supp. 943 ; Donohue v. Donohue, 63 Misc. Rep. Ill, 
 116 N. Y. Supp. 241; Miller v. MilJer, 76 W. Va. 352, 85 S. E. 542; Thomp- 
 son V. Thompson (Tex. Civ. App.) 202 S. W. 175, judgment modified on sec- 
 ond motion for rehearing 203 S. W. 939. Marriages between people of Greek 
 Orthodox faith and non-Christians in Russia, being deemed illegal under its 
 laws, are so regarded elsewhere. Schaffer v. Krestovnikow, 88 N. X Eq. 
 192, 102 Atl. 246. 
 
 E 2 Hastings v. Douglass (D. C.) 249 Fed. 378; Ogden v. Ogden, [1908] Prob. 
 46. See, also, Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; Ex parte 
 Ohace, 26- R, I. 351, 58 Atl. 978, 69 L. R. A. 493, 3 Ann. Oas. 1050, Cooley 
 Cas. Persons and Domestic Relations, 35; State v. Shattuck, 69 Vt. 403, 38 
 Atl. 81, 40 L. R, A. 428, 60 Am. St. Rep. 936. 
 
 63 People V. Siems, 198 111. App. 342; Garcia v. Garcia, 25 S. D. 645, 127 
 N. W. 586, 33 D. R. A. (N. S.) 424, Ann. Cas. 1912C, 621. And see Fen- 
 sterwald v. Burk, 129 Md. 131, 98 Atl. 358, 3 A. L. R. 1562, where a marriage 
 between uncle and niece was involved. 
 
 6 4Whittington V. McCagkill, 65 Fla. 162, 61 South. 236, 44 L. R. A. (N S) 
 630, Ann, Cas. 1915B, 1001. 
 
§ 30) CONFLICT OP LAWS 69 
 
 woman whose former husband had not been heard from or known 
 to be living for more than five years prior to such marriage, solem- 
 nized in Canada, and void under the laws of that country, because 
 of the possible existence of such former husband, could be treated 
 in New York, where both the parties were then domiciled, as a mar- 
 riage per verba de prassenti, and valid when followed by cohabita- 
 tion as husband and wife.°° On the other hand, it has been held 
 in Missouri that, if common-law marriages are not recognized in 
 the state where the acts alleged to show a common-law marriage 
 took place, the Missouri courts will not recognize such marriage 
 as having been entered into, though common-law marriages are 
 valid qn Missouri, and the acts shown,' had they taken place in 
 Missouri, would have established a common-law marriage."' 
 
 To this general rule that a marriage valid where made is valid 
 everywhere there are, however, some exceptions. For example, a 
 marriage entered into in one state or country will not be recognized 
 as valid by the courts of another state or country if it is opposed to 
 morality or religion or the law of nature as generally recognized in 
 Christian countries ^'' such as a polygamous or incestuous mar- 
 riage ; °* or, secondly, if it is a marriage which the local laiw-mak- 
 ing power has declared iiivalid as contrary to the settled policy of 
 the state.^° 
 
 65 'Wilcox V. Wilcox, 46 Hun (N. T.) 32. And see cases in note 51, supra. 
 
 66 Jordan v. Missouri & K. Tel. Co., 136 Mo. App. 192, 116 S. W. 432. 
 
 57 Commonwealtli v. Lane, 118 Mass. 458, IS Am. Eep, 509; Sturgis v. 
 Sturgis, 51 Or. 10, 93 Pac. 696, 15 L,. li, A. (N. S.) 1034, 131 Am. St. Rep. 724; 
 State V. Fenn, 47 Wash. 561, 92 Pac 417, 37 L. B. A. (N. S.) 800; Earle v. 
 Earle, 141 App. Div. 611, 126 N. Y. Supp., 317 ; Davidson v. Ream, 97 Misc. 
 Rep. 89, 161 N. Y, Supp. 73 ; True v. Banney, 21 N. H. 52, 53 Am. Dec. 164 
 (where the marriage of an imbecile was involved). 
 
 5 8 Conway v. Beazley, 3 Hagg. Ecc. 639; Inhabitants of Medway v. Inhab- 
 itants of Needham, 16 Mass. 157, 8 Am. Dec. 131 ; Stevenson v. Gray, 17 B. 
 Mon. (Ky.) 193; Schofield v. Schofield, 51 Pa. Super. Ot. 564; Roche v. 
 Washington, 19 Ind. 53, 81 Am. Dee. 376; Sturgis v. Sturgis, 51 Or. 10, 93 
 Pac. 696, 15 L. B. A. (N. S.) 1034, 131 Am. St. Eep. 724; State v. Penn, 47 
 Wash. 561, 92 Pac. 417. The marriage must, however, be incestuous by the 
 common consent of Christendom; i. e., marriages in the direct line of con- 
 sanguinity and in the collateral line between brothers and sisters. Sutton 
 v. Warren, 10 Mete. (Mass.) 451 ; Stevenson v. Gray, 17 B. Mon. (Ky.) 193. 
 
 6 9Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. B. A. 703, 10" Am. 
 St. Rep. 648 ; Sturgis v. Sturgis, 51 Or. 10, 93 Pac. 696, 15 L. R. A. (N. S.) 
 1034, 131 Am. St. Rep. 724 ; Brook v. Brook, 9 H. L. Cas. 193 ; Succession of 
 Gabisso, 119 La. 704, 44 South. 438, 11 L. B. A. (N. S.) 1082, 121 Am. St. Rep. 
 529, 12 Ann. Cas. 574; Newman v. Kimbrough (Tenn. Ch. App.) 59 S. W. 
 1061, 52 L. R. A. 668 ; State v. Fenn, 47 Wash. 561, 92 Pac. 417, 37 L. ,B. A. 
 
70 MAREUGE (Ch. 1 
 
 While there seem to be no differences of opinion as to cases aris- 
 ing under the first exception, there is an apparent conflict between 
 the courts where the decision has turned on questions arising under 
 the second exception, especially when the parties .have gone out of 
 the state in which they live for the purpose of evading its laws. 
 The courts of some states have held that in such instances the 
 marriage will not be declared invalid on the return of the parties 
 into the state, if it was valid in the state or country where it took 
 place.*" On the other hand, in other jurisdictions the contrary 
 rule has been announced. °^ 
 
 It is to be observed, however, that the conflict is more apparent 
 than real, and that in nearly every case the decision turns on the 
 question whether the particular provision of the law which it was 
 sought to evade was or was not an expression of the distinctive 
 public policy of the state. This becomes manifest if a comparison 
 is made of the decisions, apparently conflicting, from the same 
 jurisdiction,"^ or of decisions from different jurisdictions where lo- 
 cal conditions have given rise to distinctive public policies."* 
 
 (N. S.) 800; Davidson v. Ream, 97 Misc. Rep. 89, 161 N. T. Supp. 73; Peo- 
 ple V. Siems, 198 III. App. 342 ; Kitzman v. Kitzman, 167 Wis. 308, 166 N. 
 W. 789 ; People v. Steere, 184 Mich. 556, 151 N. W. 617. 
 
 6 Com. V. Graham, 157 Miiss. 73, 31 N. E. 706, 16 L. R. A. 578, 34. Am. 
 ■St. Rep. 255; Levy v. Downing, 213 Mass. 334, 100 iN. E. 638; Thorp v. 
 Thorp, 90 N. T. 602, 43 Am. Rep. 189 ; Inhabitants of West Cambridge v. 
 Inhabitants of Lexington, 1 Pick. (Mass.) 506, 11 Am. Dee. 231 ; Inhabitants 
 of Medvsray v. Inhabitants of Needham, 16 Mass. 157, 8 Am. Dec. 131 ; State 
 V. Hand, 87 Neb. 189, 126 N. W. 1002, 28 L. R. A. (N. S.) 753 ; Courtright v. 
 .Courtright, 26 Wkly. Law Bui. (Ohio) 309; Petit v. Petit, 45 Misc. Rep. 155, 
 91 N. T. Supp. 979 ; Ex parte Chace, 26 R. I. 351, 58 Atl. 978, 69 L. R. A. 
 493, 3 Ann. Oas. 1050, Oooley Oas.> Persons and Domestic Relations, 35. And 
 See cases cited in note -68. i 
 
 eiDupre V. Boiilard's Ex'r, 10 Lfi. Ann. 411; Babin v. Le Blanc, 12 La. 
 Ann. 367 ; Maillefer v. Saillot, 4 La. Ann. 375 ; Saul v. His Creditors, 5 Mart. 
 (N. S. La.) 569, 16 Am. Dec. 212; Succession of Caballero v. Executor, 34 
 La. Ann. 573; McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 38 L. R. A. 
 863, 65 Am. St. Rep. 835; In re StuU's Efetate, 183 Pa. 625, 39 Atl. 16, 39 L. 
 R. A. 539, 63 Am. St. Rep. 776 ; Durocher v. Degre, Rap. Jud. Que. 20 C. S. 
 456. Apd see cases cited in note 71. There are statutes in some states to 
 the same effect. See, for example, Civ. Code Ga. § 2424; Burns' Ann. St. 
 Ind. 1914, § 8367; Rev. St. Me. c. 64, § 9. 
 
 oa.Oompare McLennan v. McLennan, 31 Or. 480, 50 Pac. 802, 38 L. R. A. 
 863, 65 Am. St. Rep. 835, and Sturgis v. Sturgis, 51 Or. 10, 93 Pac. 696, 15 
 L. B. A. (N. S.) 1034, 131 Am. St. Rep. 724. Compare, also, Tyler v. Tyler, 
 170 Mass. 150, 48 N. E. 1075. and Com. v. Graham, 157 Mass. 73, 31 N. E.' 
 706, 16 L. R. A. 578, 34 Am. St. Rep. 255. The good faith of the parties was 
 regarded as an element in Whippen v. Whippen, 171 Mass. 560, 51 N. E. 174. 
 
 83 Compare Inhabitants of Med way v. Inhabitants of Needham, 16 Mass. 
 
§ 30) CONFLICT OF LAWS 71 
 
 t 
 
 It is generally held that, if the statutory prohibition relates only 
 to matters of form and ceremony, the general rule applies,"* and 
 the marriage will be held valid, even though the parties were mar- 
 ried in another state in order to evade the law of their own state."* 
 Thus, too, it has been held that a marriage between first cousins, 
 entered into outside the state of residence of the parties, is never- 
 theless valid in the state of residence, though the parties went out 
 of the state to evade its laws."" On the other hand, it has been held 
 in New York that where residents of that state, incapable of mar- 
 rying in New York because under age, went over into New Jersey 
 and were married there to evade the law of New York, such mar- 
 riage would be annulled."' 
 Extraterritorial Effect of Restrictions on Right to Marry after Divorce 
 
 There is a great difference of opinion as to the extraterritorial 
 effect of statutes prohibiting divorced persons from marrying for 
 a definite period of during the lifetime of the complaining spouse. 
 As a general rule such statutes have no extraterritorial effect, and 
 a marriage in another state of a divorced person within the period 
 prohibited by the statute of the state where the divorce was grant- 
 ed, if valid by the law of the state where the marriage took plM c£. 
 will be recognised as v aliH in thp ptat e where the divorce was 
 
 157, 8 Am. Dec. 131, in which the marriage of a white person with a negro 
 was involved, with ICinney v. Commonwealth, 30 Grat. (Va.) 858, 32 Am. Kep.^ 
 690, and State v. Kennedy, 76 N. 0. 251, 22 Am. Eep. 683. In this connec- 
 tion see, also, Minor, Confl. of Laws, pp. 151-153. 
 
 6*Dalrymple v. Dalrymple, 2 Hagg. Consist. 54; In re Lum Lin Ying (D. 
 C.) 59 Fed. 682 ; Inhabitants of Hiram v. Pierce, 45 Me. 367, 71 Am. Dec. 
 555 ; Jackson v. Jackson, 80 Md. 176, 30 Atl. 752 ; Id., 82 Md. 17, 33 Atl. 317, 
 34 Lu R. A. 773; Com. v. Graham, 157 Mass. 73, 31 N. E. 706, 16 L. B. A. 
 578, 34 Am. St. Kep. 255. 
 
 65 Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703, 10 Am. St. 
 Rep. 648; Stur^s v. Sturgis, 51 Or. 10, 93 Pac. 696, 151 L. R. A. (N. S^ 
 1034, 131 Am. St. Rep. 724; Ex parte Chace, 26 R. I. 351, 58 Atl. 978, 69 
 L. R. A. 493, 3 Ann. Gas. 1050, Cooley, Cas. Persons and Domestic Relations, 
 35. But see Norman v. Norman, 121 Gal. 620, 54 Pac. 143, 42 L. R. A. 343, 
 66 Am. St. Rep. 74, holding that where parties go on the high seas, where no 
 law exists, to be married, so as to evade the laws of the stkte wherein they 
 are domiciled, and immediately after the marriage return and continue to 
 reside in such state, the laws of their domicile apply to the marriage. 
 
 6 Leefleld v. Leefleld, 85 Or. 287, 166 Pac. 953; Schofleld v. Schofield, 51 
 Pa. Super. Ct. 564. But, contra, see Johilson v. Johnson, 57 Wash. 89, 106 
 Pac. 500, 26 L. R. A. (N. S.) 179. 
 
 6 7 Cunningham v. Cunningham, 206 N. T. 341, 99 N. E. 845, 43 L. R. A. 
 (N. S.) 355, reversing judgment 145 App. Div. 919, 130 N. Y. Supp. 1109; 
 MitcheH v. Mitchell, 63 Misc. Rep. 580, 117 N. Y. Supp. 671. 
 
72 MAERIAQB (Ch. 1 ; 
 
 granted." This general rule has been upheld, though the parties 
 went outside the state where the divorce was granted, that being 
 their domicile, merely to evade the law of such state."" The fact 
 that the state in which the marriage took place has a statute sim- 
 ilar to the statute of the .state where the divorce was granted does 
 not as a rule aflfect the question. ''° 
 
 On the other hand, in a number of states where the statute ex- 
 pressly declares that a marriage entered into in contravention 
 thereof shall be deemed void, the general rule has been rejected, 
 and, on the theory that the statute establishes a distinct and defi- 
 nite public policy, marriages in contravention of the statute are 
 held to be invalid, no matter where celebrated. ^^ 
 
 The Supreme Court of Wisconsin has gone to the extreme in 
 its application of the rule that statutes declaring a distinct public 
 policy will render invalid a marriage in contravention of that policy 
 contracted in another state. In Hall v. Industrial Commission " 
 
 6 8 state V. Shattuck, 69 Yt. 403, 38 Atl. 81, 40 !>. R. A. 428, 60 Am. St. 
 Rep. 936; Grouse v. Wheeler, 62 Colo. 51, 158 Pac. 1100, Ann. Gas. 1918E, 
 1074; In re EicWer, 84 Misc. Rep. 667, 146 N. Y. Supp. 846,; McLaughlin v. 
 McLaughlin, 201 Ala. 482, 78 South. 388; People v. Woodley, 22 Cal. App. 
 &!i, 136 Pac. 312; Griswold v. Grlswold, 23 Golo. App. 365, 129 Pac. 560; 
 Dudley v. Dudley, 151 Iowa, 142, 130 N. W. 785, 32 L. R, A. (N. S.) 1170; 
 State V. Weatherby, 43 Me. 258, 69 Am. Dec. 59 ; Dimpf el v. Wilson, 107 Md. 
 329, 68 Atl. .561, 13 L. R. A. (N. S.) 1180, 15 Ann. Gas. 758 ; In re Crane, 170 
 Mich. 651, 136 N. W. 587, 40 L. R. A. (N. S.) 765, Ann. Gas. 1914A, 1173; 
 Thorp V. Thorp, 90 N. T. 602, 43 Am. Rep. 189 ; Moore v. Hegeman, 92 N. Y. 
 521, 44 Am. Rep. 408. 
 
 soPonsford v. Johnson, Fed. Gas. No. 11266; Griswold v. Griswold, 28 
 Colo. App. 365, 129 Pac. 560; Dudley v. Dudley, 151 Iowa, 142, 130 N. W. 
 785, 32 L. R. A.,(N. S.) 1170; State v. Hand, 87 Neb. 189, 126 N. W. 1002, 28 
 L. R. A. (N. S.) 753 ; State v. Shattuck, 69 Vt. 403, 38 Atl. 81, 40 L. R, A. 
 428, 60 Am. St. Rep. 936. 
 
 7 Dudley v. Dudiey, 151 Iowa, 142. 130 N. W. 785, 32 D. R. A. (N. S.) 
 1170 ; Inhabitants of Phillips v. Inhabitants of Madrid, 83- Me. 205, 22 Atl. 
 114, 12 L. R. A. 862, 23 Am. St. Rep. 770. 
 
 71 Wilson V. Oook, 256 111. 460, 100 N. E. 222, 43 L. R. A. (N. S.) 365; 
 Hahn v. Hahn, 104 Wash. 227, 176 Pac. 3 ; Gardner v. Gardner, 232 Mass. 
 253, 122 N. B. 308; White v. White, 167 Wis. 615, 168 N. W. 704; Rand v. 
 Bogle, 197 111. App. 476; Peerless Pacific Go. v. Burckhard, 90 Wash. 221, 
 155 Pac. 1037, L. R. A. 1917C, 353, Ann. Gas. 1918B, 247; Severa v. National 
 Slavonic Society of the United States, 138 Wis. 144, 119 N. W. 814; In re 
 StuU's Estate, 183 Pa. 625, 39 Atl. 16, 39 L.. R. A. 539, 63 Am. St. Rep. 776; 
 Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703, 10 Am. St. 
 Rep. 648; Williams v. Gates, 27 N. G. 535; State v. Fenn, 47 Wash. 561, 92 
 Pac. 417, 17 L. R. A. (N. S.) 800; Lanham v. Lanham, 136 Wis. 360, 117 N 
 W. 787, 17 h. R. A. (N. S.) 804, 128 Am. St. Rep. 1085. 
 
 72 165 Wis. 364, 162 N. W. 312, U R. A. 1917D, 829. 
 
§ 30) CONFLICT OP LAWS 73 
 
 it appeared that W. was divorced from her husband in Illinois in 
 October, 1911. The decree, in accordance with the provisions of 
 the Illinois statute,' ' declared that neither party should marry 
 within one year. In July, 1912, W. and H., both residents of Ill- 
 inois, went into Indiana and were married. They went immediate- 
 ly to Wisconsin, remaining there two months. They then returned 
 to Illinois, and after residing in Illinois about two years again took 
 up their residence in Wisconsin. In an action brought by Mrs. 
 H. under the Workmen's Compensation Act, the Supreme Court 
 held that she was not the widow of H., as the marriage in Indiana 
 was invalid. The court, though recognizing the general rule that 
 a marriage valid where celebrated is valid everywhere, held that 
 as the marriage was invalid by Illinois law, and Wisconsin had a 
 statute similar to the Illinois statute, the general principle of comity 
 justified the court in refusing to recognize the Indiana marriage, 
 though the marriage was valid under the Indiana law. The court 
 said : "The statute of Illinois, with its judicial construction, must 
 be deemed imported into plaintifif's divorce decree, and since such 
 statute ^nd construction are substantially the i same as ours, and 
 since they declare a public policy similar to our own, no good rea- 
 son is perceived why this court should not take cognizance of 
 plaintiff's evasion of the laws of our sister state, and apply the 
 same rule to their infraction that we would apply to a violation of 
 our own like laws." 
 
 The decision is remarkable in that it is contrary to the great 
 weight of authority, and to the well-recognized general rule that it 
 is only the public policy of the state Of the forum that should be 
 considered in cases of this character, and not the public policy of- 
 some other state or country.'* It is only by the utmost stretch of 
 the imagination and a juggling with the meaning of words that an 
 act committed in Indiana in violation of a statute of Illinois can 
 be regarded as in contravention of the public policy of Wisconsin. 
 
 The general rule stated ahnvp is hased in some cases on the fun - 
 damental doctrine that a marriage valid where entered int n i° Y?''^i 
 everywhere, '' and in other instances on the theory that the statutes 
 
 \ 
 
 73 Hurd's Kev. St. 1915-16, c. 40, § la. 
 
 '4 Southern Fac. Co. v. Dusablon, 48 Tex. Civ. App, 203, 106 S. W. 766; 
 Kaufman v. Geoson, [1904] 1 K. B. 591. 
 75 See ante, p. 67. 
 
74 MARRIAGE (Ch. 1 
 
 restricting the right to marry after divorce are penal in their 
 nature and therefore have no extraterritorial effect.''" 
 
 In view of the theory that the statutes are penal in their nature, 
 it has been held that if residents of one state go into another state 
 and marry, contrary to the restrictive statutes of the latter state, 
 intending to return, and in fact returning, to the state of their 
 residence, where the marriage would have been valid, the marriage 
 will be there upheld. Thus it was held by the Louisiana court 
 that the prohibition of the New York statute to the effect that no 
 second or other subsequent marriage should be contracted by any 
 person during the lifetime of any former husband or wife of such 
 person, in case the former marriage was dissolved on the ground of 
 adultery, had no extraterritorial effect, being a penal statute, and 
 that it coiild not be given the effect of annulling a marriage be- 
 tween persons at the time residing abroad, and intending to con- 
 tinue to reside abroad, notwithstanding it was solemnized in New 
 York.^'^ So, also, in a Maine case it was held that where a husband 
 obtained a divorce from his wife for her fault, by the decree of a 
 court of another state, which prohibited the wife from renj^rrying, 
 the wife still residing in Maine, the prohibition to remarry was in 
 the nature of a penalty, and had no force as a disability to remarry 
 in another state, and therefore such disability did not attach to 
 the person of the wife in Maine.'* 
 
 7 8 Inhabitants of Phillips v. Inhabitants of Madrid, 83 Me. 205, 22 Atl. 114, 
 12 L. B. A. 862, 23 Am. St. Rep. 770; Ponsford v. Johnson, Fed. Cas. No. 
 11266. 
 
 '!■' Succession of Hernandez, 46 La. Ann. 962, 15 South. 461, 24 L. R. A. 
 831. See, also, Frame v. Thormann, 102 Wis. 653, 79 N. "W. 39; SnufCer v. 
 Karr, 197 Mo. 182, 94 S. W. 983, 7 Ann. Cas. 780; State v., Shattuck, 69 
 Vt. 403, 38 Ati. 81, 40 L. E. A. 428, 60 Am. St. Rep. 936. 
 
 7 8 Inhabitants of Phillips v. Inhabitants of Madrid, 83 Me. 205, 22 Atl. 
 114, 12 I/. R. A. 862, 23 Am. St. Rep. 770. It was also held in this case that 
 the prohibition to marry contained in the statutes of one state did not apply 
 to divorces granted in another state. 
 
§ 31) RIGHTS AND DUTIES INCIDENT TO COVEKTUKB 75 
 
 CHAPTER II 
 
 BIGHTS AND DUTIES INCIDENT TO COVERTURE IN GENERAI/ 
 
 31. Right to Cohabitation and Intercourse. 
 
 32-33. Restraint and Correction of Wife. 
 
 34-35. Support of Wttfe and Family. 
 
 36. Eight to Determine Family Domicile. 
 
 37. Crimes of Married Women. 
 
 3S. Crimes as between Husband and Wife. 
 
 39-42. Torts of Married Women. 
 
 48. Torts as between Husband and Wife. 
 
 44. Torts Against Married Women. 
 
 45-46. Actions for Enticing, Harboring, or Alienation of Affection. 
 
 47. Action for Criminal Conversation. 
 
 "By marriage," says Blackstone, "the husband and wife are one 
 person in law. The very being or legal existence of the woman is 
 suspended during the marriage, or at least is incorporated and 
 consolidated into that of the husband, under whose wing> protec- 
 tion, and cover she performs everything ; -and is therefore called, in 
 our law French, a 'feme covert' — 'foemina viro co-operta' ; is said to 
 be 'covert baron,' or under the protection and influence of her hus- 
 band, her baron or lord; and her condition during her marriage 
 is called her 'coverture.' Upon this principle of a union of person 
 in husband and wife depend almost all the legal rights, duties, and 
 disabilities that either of them acquire by the marriage " ^ 
 
 RIGHT TO COHABITATION AND INTERCOURSE 
 
 31. Marriage mutually entitles the husband cuid wife to cohabita- 
 tion and intercourse, but in this country there is no way in 
 which this right can be judicially enforced. 
 
 1 1 Bl. Comm. 442. "Coverture" ^is the legal condition of a married wo- 
 m<in. Perkins v. Blether;, 107 Me. 443, 78 Atl. 574, 31 TJ. R. A. (N. S.) 1148. 
 At common law the husband and wife are one person in law, and the wife's 
 legal existence is suspended during the marriage and consolidated into that 
 of her husband. Heyman v. HJeyman, 19 Ga. App. 634, 92 S. E. 25. In pro- 
 ceedings which from their verj- nature make a husband and wife opposite 
 parties, the legal fiction of unity of person by marriage will not be followed 
 to destroy the, rights of either. State ex rel. Taubman v. Davis, 199 Mo. App. 
 439, 203 S. W. 654. 
 
76 EIGHTS AND DUTIES INCIDENT TO COVEBTUKE (Ch. 2 
 
 Marriage entitles the husband and wife to each other's society; 
 that is, they are mutually entitled to cohabitation.^ And, in addi- 
 tion to this, they are mutually entitled to sexual intercourse.' The 
 law, in this country at least, cannot, as could be done in England, 
 enforce the right to cohabitation and intercourse in a suit for resti- 
 tution of conjugal rights.* But the right is essential to the mar- 
 riage state, and is the basis of many of the personal rights of the 
 spouses. It is recognized by the law in many ways. Thus a prom- 
 ise by a husband to his wife to pay her money if she will cohabit 
 with him, or. permit him to have sexual intercourse, would be void 
 for want of consideratiori, as the only consideration therefor is the 
 doing by the wife of something which she is already bound in law 
 to do.^ Other illustrations of the recognition of the right to co- 
 
 2 The right of "consortium" Is a right growing out of the marital relation, 
 which the husband anji wife have, respectively, to enjoy the society and 
 conlpanionship and affection of each other in their life together. FenefC v. 
 New York Cent. & H. R, K. Co., 203 Mass. 278, 89 N. E. 436, 24 D. K. A. 
 (N. S.) 1024, 133 Am. St. Rep. 291. Right of either husband op wife to con- 
 sortium of their respective spouse,- as distinguished from right of service 
 belonging to husband or right of support belonging to wife, is property, al- 
 though of a somewhat sentimental character. Larisa v. Tiffany (R. I.) 105 
 Atl. 739. As against third persons, either spouse has the right of custody 
 of the person of the other. Ex parte Ohace, 26 r' I. 351, 5« Atl. 978, 69 L. 
 R. A. 493, 3 Ann. Cas. 1050, Cpoley, Oas. Persons and Domestic Relations, 35 ; 
 State ex rel. Scott v. Lowell, 78 Miim. 166, 80 N. W. 877, 46 L.. R.. A. 440, 79 
 Am. St. Rep. 358 , Oooley, Cas. Persons and Domestic Relations, 22. 
 1 1 s In law "cohabitation" Is properly used to designate the living together 
 \\of a man and woman as husband and wife, though the term is often er- 
 ^woneously used in the sense of sexual intercourse. Properly speaking, "co- 
 Vnabitation" does not necessarily imply sexual intercourse. 1 Bish. Mar., 
 \biv. & Sep. § 1669, and note; Yardley's Estate, 75 Pa. 207; Pollock v. 
 Pollock, 71 N. T. 137, 141. Marriage is a civil contract, and the wife owes 
 to the husband the same full performance of marital duties that he owes 
 to her. Richardson v. Richardson (Sup.) 114 N. Y. Supp. 912. A husband and 
 wife are "livina together" when they dwell under the same roof, eat at the 
 same table, and hold themselves out to the world and, conduct themselves 
 towards each other as husband and wife, and it is incorrect to say that they 
 are not living as husband and wife when they do not occupy the same room 
 or have sexual intercourse. Levy v. Gcldsoll, 62 Tex. Civ. App. 257, 131 S. 
 W. 420. 
 
 < Schouler, Husb. & W. §§ 482, 483 ; 1 Bish. Mar., Div. & Sep. § 69. 
 B Roberts v. Frisby, .38 Tex. 219; ReJthmaier v^Beckwith, 35 Mich. 110. 
 There may be circumstances under which a promise by a wife to continue 
 to cohabit with her husband would constitute a consideration for his prom- 
 ise given In return. Tliis would be so In any case where the conduct of the 
 husband had been such as to entitle the wife to leave him. In Phillips v. 
 Meyers, 82 111. 67. 25 Am. Rep. 295, for instance, a note executed by a hus- 
 band for the benefit of his wife, in consideration of her discontinuing a suit 
 for divorce on the ground of his drunkenness and abuse, was upheld. 
 
§ 31) EIGHT TO COHABITATION AND INTERCOURSE 77 
 
 habitation and intercourse are in the fact that a marriage may be 
 annulled on the ground of impotence existing at the time of the 
 marriage, that desertion is very generally made a ground for di- 
 vorce, and that it is not rape for a husband to have intercourse 
 with his wife by force, and against her will. While a husband 
 is thus entitled to sexual intercourse with his wife, he cannot com- 
 pel her to submit when not in a condition to do so, as where she is 
 ill. Nor can he compel her to submit to excessive intercourse, en- 
 dangering her health, or to intercourse with him while he is dis- 
 eased: This would be cruelty, and in some states a ground for 
 divorce. ° 
 
 A wife may be justified, under certain circumstances, in leaving 
 her husband, and living apart from him. Extreme cruelty or adul- 
 tery on his part would justify her in taking such a course. Any 
 cause that would entitle her to sue for a divorce would undoubtedly 
 justify her. And, though there is some doubt on the subject, it is 
 held in some jurisdictions that she may be so justified by causes 
 which are not sufficient to entitle her to a divorce.' In like ma;n- 
 ner, a husband may be justified in leaving his wife.' The question 
 is one of, great importance; for, if either husband or wife deserts 
 the other without justification, the statutes very generally entitle 
 the deserted spouse to a divorce.' In addition to this, there are 
 statutes in some jurisdictions rendering a husband liable to a crim- 
 inal prosecution if he abandons his wife without just cause.^" A 
 deserted wife may also sue for maintenance,^^ and she has the pow- 
 
 8 See post, p. 249. 
 
 7 Watts V. Watts, 160 Mass. 464, 36 N. E. 479, 23 L. R. A. 187, 39 Am. 
 St. Rep. 509. r 
 
 8 McCliirg's Appeal, 66 Pa. 366. 
 . 9 See post, p. -257. 
 
 10 State V. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L: R. A. 125; State v: 
 Fuchs, 17 Mo. App. 458 ; State v. Broyer, 44 Mo. App. 393 ; State v. Witham, 
 70 Wl-s. 473, 35 N. W; 934 ; Cuthbertson v. State, 72 Neb. 727, 101 N. W. 1031 ; 
 Virtue v. People, 122 111. App. 223 ; Spencer v. ■ State, 132 Wis. 509, 112 N. 
 W. 462, 122 Am. St. Rep. 989, 13 Ann. Oas. 969. 
 
 11 Stim; Am. St. Law, § 6351; Kinsey V. Kinsey, 37 Ala. 393; Simpson 
 V. Simpson, 31 Mo. 24; McMnllen v. McMiillen, 10 Iowa, 412; Elliott v. 
 Elliott, 48 N. J. Eq. 231, 21 Atl. 381 ; Smith v. Smith, 35 Ind. App. 610, 74 
 N. E. 1008; Rhoades v. Rhoades, 78 Neb. 405. Ill N. W. 122, 126 Am. St. 
 Rep. 611. In Iowa it has been held that a suit for separate maintenance can- 
 not be maintained except for a cause tht would' warrant a decree of divorce. 
 Shors V. Shors, 133 Iowa, 22, 110 N. W. 16. But see Mellanson v. Mellan- 
 sou, 113 111. App. 81, holding that a wife, in order to obtain separate mainte- 
 nance, need not show a statutory ground for divorce; but it is sufficient if 
 
78 BIGHTS AND DUTIES INCIDENT TO COVEETUEE (Ch. 2§ 
 
 er to bind her husband for necessaries to a much greater extent 
 than when living with him, and. being supported by him.^^ 
 
 RESTRAINT AND CORRECTION OF WIFE 
 
 32. A husband has no right to restrain his wife of her liberty, ex- 
 
 cept where restraint is necessary, either: 
 EXCEPTIONS — (a) To prevent her from committing a crime. 
 
 (b) To prevent her from committing adultery. 
 
 (c) Perhaps, to prevent her from committing a tort for which 
 
 he, as her husband, would be liable. 
 
 (d) Perhaps, to prevent her interference with his parental au- 
 
 thority over his children. 
 
 33. A husband has no right to chastise his wife in any case. 
 
 Restraint 
 
 The text-books generally state that the husband has the right to 
 restrain his wife's person. Kent says that the law has given the 
 husband a reasonable superiority and control over her person, and 
 that he may even put gentle restraint upon her liberty.^' The early 
 cases support this view,^* and the right has been recognized in a 
 recent English case,^" where it was held that the law places the 
 wife under the guardianship of the husband, and entitles him, for 
 the sake of both, to protect her from the danger of unrestricted 
 intercourse with the world, by enforcing cohabitation and a com- 
 mon residence. Here, the wife having left her husband, he brought 
 suit for restitution of conjugal rights, and she failed to answer. 
 Thereupon he decoyed her to his house, and restrained her there 
 against her will. It was held that he was justified in thus forcibly 
 detaining her. This case, however, has been recently overruled by 
 the court of appeal in a case where the husband, having obtained 
 a decree for restitution of conjugal rights, caused his wife to be 
 
 a persistent, Unjustifiable course of conduct on the part of the husband be 
 shown which necessarily renders the life of the wife miserable. 
 
 12 See post, p. 176. 
 
 13 2 Kent, Oomm. ISl. 
 
 14 Eex V. Lister, 1 Strange, 478. In this case It was said that when a 
 wife makes undue use of her liberty, either by squandering away the hus- 
 band's estate, or going into lewd company, it is lawful for the husband to 
 lay such a wife under restraint. 
 
 10 In re Cochrane (1840) 8 Dowl. 631. 
 
§§ 32-33) RESTRAINT AND COKBECTION OF WIFE 79 
 
 seized in the street, and confined in his house.^' The Master of the 
 Rolls said in that case : "I do not believe that an English husband 
 has, by law, any such right over his wife's person as has been sug- 
 gested. I do not say that there may not be occasions on which he 
 would have a right of restraint, though not of imprisonment. For 
 instance, if the wife were about immediately to do something which 
 would be to the dishonor of her husband, as if that he saw his wife 
 in the act of going to meet a paramour, I think that he might seize 
 her and pull her back." 
 
 The limits of the doctrine of the husband's right of restraint over 
 his wife are very shadowy and undefined. In this country the right 
 has been recognized so far as to allow a husband to restrain his wife 
 from committing a crime,^' or from interfering with his exercise of 
 parental authority over his children.^* But it is not probable that 
 any court would go' as far as the English court in the first case men- 
 tioned above, and allow a husband to restrain his wife merely to 
 compel cohabitation with him, or to prevent her from doing acts 
 not criminal, nor adulterous or tortious, nor interfering with his 
 parental authority.^" Perhaps, as it would be only reasonable, he 
 would be permitted to prevent her from committing a tort for which 
 he, as husband, would be civilly likble.^" A man, it was said by 
 the Pennsylvania court, has a right to a reasonable control of his 
 wife's actions. "It is a sickly sensibility which holds^ that a man 
 may not lay hands on his wife, even rudely, if necessary, to prevent 
 the commission of some unlawful or criminal purpose." ^^ 
 
 18 Reg. V. Jackson, [1S91] 1 Q. B. Div. 671. 
 
 17 Eichaiils v. Richards, 1 Grant, Cas. (Pa.) 389. 
 
 18 Gorman v. State, 42 Tex. 221; Barber v. Barber, 168 App. Div. 212, 153 
 N. T. Supp. 256. 
 
 lol.Bish. Mar., Div. & Sep. § 1624; Sehouler, Dom. Rel. § 45. "In this 
 country," says Dr. Bishop, "where we reject the suit for the restitution of 
 conjugal rights, repudiating, therefore, by implication, the principle of a 
 compelled cohabitation, whereon it is founded, there is apparently no just 
 ground for permitting a husband to confine, even in his own house, a sane 
 wife, who is simply unwilling to dwell with him. It Is believed that none 
 of our courts will recognize this authority. Still the husband must, with us, 
 be permitted to exercise some restraint; for our law makes him criminally 
 responsible for her acts of crime committed in his presence, and civilly for 
 her torts, whether he is present or absent. And it would be absurd to de- 
 ny him all means of avoiding these heavy liabilities. He must have the 
 right to the physical control over her necessary to free himself." 1 Bish. 
 Mar., Div. & Sep. i 1624. 
 . 20 1 Bish. Mar., Div. & Sep. § 1624. 
 
 21 Richards y. Richards, 1 Grant, Cas. (Pa.) 389j 
 
80 EIGHTS AND DUTIES INCIDENT TO COVEETUEB (Gh. 2 
 
 Chastisement 
 
 According to Blackstone, and some of the early cases, the hus- 
 band formerly had the right to give his wife moderate correction.^^ 
 No such right, however, is recognized to-day. Chastisement is 
 unlawful in any case, and will render the husband guilty of assault 
 and battery.^^ Further than this, if sufficiently severe, or often 
 repeated, under the- statutes, it may entitle the wife to a divorce on 
 the ground of cruelty.^* As was said by Chancellor Walworth in 
 a New York case: "Whatever may be the common law on the 
 subject, the moral sense of this community, in our present state 
 of civilization, will not permit the husband to inflict personal chas- 
 tisement on his wife, even for the grossest outrage." ^° 
 
 SUPPORT OF WIFE AND FAMILY 
 
 34. At common law, and imder the statutes of many states, it is the 
 
 duty of the husband to support and maintain his wife 
 and family, if he is able to do so. 
 
 35. By statute, in some states, the husband and wife are made joint- 
 
 ly liable for family expenses; but these statutes do not 
 relieve the husband from his primary liability for neces- 
 saries. 
 
 In General 
 
 As a necessary incident to the marital relation there is imposed on 
 the husband the duty to support and maintain his wife and family, 
 if he is able to do so.^" This duty of the husband to support his 
 
 22 1 Bl. Comm. 445. "The husband hath by law power and dominion over 
 his wife, and may keep her by force within the bounds of duty, but not in 
 a violent or cruel manner." Bae. Abr. tit. "Baron and Feme," B. See Stale 
 V. Rhodes, 61 N. O. 453, 9K Am. Dec. 7S. 
 
 23 1 Bish. Mar., Div. & Sep. § 1617; Schouler, Dom. Rel. § 44; Com. v. 
 McAfee, 108 Mass. 45S, 11 Am. Rep. .383; Pearman v. Pearman, 1 Swab. 
 & T. 601 ; Perry v. Perry, 2 Paige (N. Y.) 501 ; Reg. v. Jackson (1891) 1 Q. 
 B. Div. 6T1 ; Brown v. Brown, 88 Conn. 42, 89 Atl. 889, 52 L. R. A. (N. S.) 
 185, Ann. Cas. 1915D', 70: Jones v. Jones, 173 N. C. 279, 91 S. E. 960; 
 Abbott V. Abbott, 67 Me. 304, 24 Am. Bep. 27; Com. v. Barry, 2 Green, Cr! 
 Rep. 286, note; People v. Winters, 2 Parker, Cr. R. (N. Y.) 10; Poor v Poor 
 8 N. H. 307, 29 Am. Dec. 664. ' 
 
 24 See post, p. 249. 
 
 2 6 Perry v. Perry, 2 Paige (N. T.) 501. 
 
 2 This duty exists both at common law and under the statutes in many 
 states. Clifton v. Clifton, 83 W. Va. 149, 98 S. E. 72; Heyman v. Hejman, 19 
 
§§ 34-35) SUPPORT OP WIFE AND FAMILY 81 
 
 wife does not rest on contract but springs from the matrimonial 
 relation.'"' It is based on considerations of public policy "' and can- 
 not be evaded by contract.^' The common-law liability of a hus- 
 band to support his wife cannot be extended by implication from 
 the written law as to the support of other persons, but only by 
 statute plainly so intended.^" The duty of the husband is con- 
 ditioned on her willingness to perform the duty she owes him to 
 live with and make a home for him,*^ and if she separates herself 
 from him, and refuses to live with him without just cause, he is 
 absolved from his duty to support her.^" The support which the 
 husband must furnish is such as is reasonable and suitable to his 
 condition and station in life and according to his means. ^' 
 
 Ga. App. 634, 92 S. E. 25 ; In re Slmonson's Estate, 164 Wis. 590, 160 N. W. 
 1040; Clisby v. Clisby, 160 Ala. 572, 49 South. 445, 135 Am. St. Rep. 110; 
 Underbill v. Mayer, 174 Ky. 229, 192 S. W. 14 ; McConnell v. McConnell, 98 
 Ark. 193, 136 S. W. 931, 33 L. R. A. (N. S.) 1074; Title Ins. & Trust) Co. v. 
 IngersoU, 158 Cal. 474, 111 Pac. 360; McCaddin v. McCaddin, 116 Md. 567, 
 82 Atl. 554 ; Fltzmaurice v. Buck, 77 Conn. 390, 59 Atl. 415 ; De Brauwere 
 V. De Brauwere, 203 N. T. 460, 96 N. E. 722, 38 L. R. A. (N. S.) 508, affirming 
 144 App. Div. 521, 129 N. Y. Supp. 587 ; State v. McPherson, 72 Wash. 371, 
 130 Pac. 481, Ann. Cas. 1914D, 587 ; Towery v. McGaw (Ky.) 56 S. W. 727 ; 
 Fiukelstein v. Finkelstein, 174 App. Div. 416, 161 N. Y. Supp. 166; In re 
 Carroll, 65 Ind. App. 146, 116 N. E. 844. The duty exists, though the hus- 
 band is an infant. See post, p. 481. He cannot escape that duty by desert- 
 ing her without cause. Merriam v. Merriam, 75 Wash. 389, 134 Pac. 1058. 
 
 27 American Mill Co. v. Industrial Board of Illinois, 279 111. 560, 117 N. E. 
 147; Boehm v. Boehm, 88 N. J. Eq. 74, 101 Atl. 423. If finding that com- 
 mon-law marriage existed between parties was warranted by facts, husband 
 was liable for w)fe'.«i maintenance and support. Knecht v. Kneeht, 261 Pa. 
 410, 104 Atl. 676. 
 
 2 8 In re Ryan's Estate, 134 Wis. 431, 114 N. W, 820, 15 L. R. A. (N. S.) 
 491, 126 Am. St. Rep. 1025; In re Simonson's Estate, 164 Wis. 590, 160 N. W. 
 , 1040. 
 
 2 8 In re Simonson's Estate, 164 Wis. 590, 160 N. W. i040; In re Ryan's 
 Estate, 134 Wis. 431, 114 N. W. 820, 15 L. R. A. (N. S.) 491, 126 Am. St. Rep. 
 1025; Weiserbs v. Weiserbs (Sup.) 169 N. Y. Supp. 111. 
 
 so Richardson v. Stuesser, 125 Wis. 66, 103 N. W. 261, 69 L. R. A. 829, 4 
 Ann. Cas. 784. The husband is not bound to support the child of his wife by 
 a former marriage. McM^hill v. McMahill, 113 111. 461 ; Gay v. Ballou, 4 
 Wend. (N. Y.) 403, 21 Am. Dec. 158. 
 
 31 Sturm V. Sturm, 80 Misc. Rep. 277, 141 N. Y. Supp. 61. 
 
 32 McKee v. Cunningham, 2 Cal. App. 684, 84 Pac. 260; Isaacs v. Isaacs, 
 71 Neb. 537, 99 >f. W. 26S; Richardson v. Stuesser, 125 Wis. 66, 103 N. W. 
 261, 69 L. R. A. 829, 4 Ann. Cas. 784; Barefoot v. Barefoot, 83. N. J. Eq. 6S5, 
 93 Atl. 192 ; Wirth v. Wirth, 184 App. Div. 643, 172 N. Y. Supp. 309 ; Kientz 
 V. Kientz, 104 Ark. 381, 149 S. W. 86 ; State v. Hill, 161 Iowa, 279, 142 N. W. 
 231; Pearson v. Pearson, 104 Misc. Rep. 675, 173 N. Y. Supp. 563; Rutledge 
 V. Rutledge, 177 Mo. App. 469, 119 S. W. 489. 
 
 83 State V. McPherson, 72 Wash. 371, 130 Pac. '481, Ann. Cas. 1914i),587; 
 TiirF.P.& D.Rel.(3d Ed.)— 6 
 
82 EIGHTS AND DUTIES INCIDENT TO COVERTURE (Gh. 2 
 
 The common-law duty of a husband to support his family has 
 not been changied by the legislation relating to married women.'* 
 Nor is he relieved from liability because the wife has adequat e 
 means of her own, o r a separate es tate.^^ He is still presumptively 
 liable unless the wife by express contract charges herself person- 
 ally.'* In some states statutes have been passed making the hus- 
 band and wife jointly liable for family expenses,'^ but even these 
 statutes do not relieve the husband from his primary liability.'* 
 
 Failure of Husband to Furnish Support 
 
 If the husband fails or neglects to support his wife, she may 
 under certain limitations bind him for necessaries as his agent. 
 The conditions under which she becomes the agent of her husband 
 in this respect are discussed in a subsequent section.'* 
 
 Same — Proceedings to Compel Support 
 
 Though it has been held in some states that the wife cannot 
 maintain an action against her husband for support,*" in most of 
 the states by statute a wife who has been deserted or abandoned 
 by her husband, or who is living apart from him because of his 
 
 De Brauwere v. De Brauwere, 203 N. y. 460, 96 N. E. 722, 38 I/. R. A. (N. S.) 
 508, affirming 144 App. Div. 521, 129 N. T. Supp. 587; Kemp v. Kemp, 141 
 La. 671, 81 South. 221. 
 
 8* Grandy v. Hadcock, 85 App. Div, 173, 83 N. Y. Supp. 90; Kuhl v. Heintze, 
 97 App. Div. 442, 89 N. Y. Supp. 1031. A statute auttiorizing a married' wo- 
 man to contract does not abrogate the common-law liability of the husband 
 to support her. Ponder v. Morris & Bros., 152 Ala. 531, 44 South. 651 ; Flynn 
 V. Messenger, 28 Minn. 208, 9 N. W. 759, 41 Am. Rep. 279. 
 
 3 5 Poole V. People, 24 Colo. 510, 52 Pde. 1025, 65 Am. St Rep. 245; Israel 
 V. Silsbee, 57 "Wlis. 222, 15 N..W. 144; Rabb v. Flenniken, 32 S. C. 189, 10 S. 
 E. 943 ; State v. Hill, 161 Iowa, 279, 142 N. W. 231 ; American MiU Co. v. 
 Industrial Board of Illinois, 279 lU. 560, 117 N. K 147 ; H. G. GoeUtz Co. v. 
 Industrial Board of Illinois, 278 III, 164, 115 N. E. 855. 
 
 3 6 Grandy v. Hadcock, 85 App. Div. 173, 83 N. Y. Supp. 90; Ruhl v. Heintze, 
 97 .App. Div. 442, 89 N. Y. Supp. 1031; Flurscheim v. Rosenthal (Sup.) 112 
 N. Y. Supp. 1118. 
 
 37 See post, p. 84. 
 
 38 Hudson V. Sholem, 65 111. App. 61; Taylor v. Taylor, 54 Or. 560, 103 Pac. 
 524; In re Kosanke's Estate, 137 Minn. 115, 162 N. W. 1060 Compare 
 Underbill v. Mayer, 174 Ky. 229, 192 S. W. 14. 
 
 39 See post, p. 175. 
 
 ' *o Irwin v. Irwin (Tex. Civ. App.) 110 S. W. 322. And see Trotter v. 
 Trotter, 77 111. 510, holding that wife cannot maintain a bill for maintenance 
 where she seeks no other relief. A woman cannot maintain action for dam- 
 ages on the ground that defendant, while he was her husband, wantonly re- 
 fused to supply her with necessaries. Decker v. Kedley, 148 Fed 681 79 
 O. O. A. 305. ■ ' 
 
§§ 34-35) SUPPORT OF WIPE AND FAMILY 83 
 
 fault, may maintain a suit in equity or an action in the nature of 
 a suit in equity for maintenance.*^ So, too, it has been held that, 
 if the wife is obliged to maintain herself out of her separate estate, 
 she may recover from the husband the amount so expended.*" In 
 many states, too, it is by statute made a criminal oflfense for the 
 husband to abandon his wife, thus leaving her without means of 
 support.*' 
 
 Effect of Contract of Wife 
 
 At common law the wife could not bind herself personally on 
 her contract even for necessaries,** but under modern statutes in 
 most, if not all, states, it is competent for a married woman to bind 
 herself and her separate estate for necessaries.** It must, however, 
 appear clearly that she intended to bind herself.*" 
 
 *i See the statutes of the various states. And see Hiner v. Hiner, 153 Cal. 
 254, 94 Pae. 1044; Bauer v. Bauer, 2 N. D. 108, 49 N. W. 418; Judson v. 
 Judson, 171 Mich. -185, 137 N. W. 103 ; Jones v. Jones, 174 Ala. 461, 57 South. 
 376 ; Brewer v. Brewer, 79 Neb. 726, 113 N. W. 161, 13 L. R. A. (N. S.) 222 ; 
 Ellett V. EUett, 157 N. C. 161, 72 S. E. 861, 39 L. R. A. (N. S.) 1135, Ann. Gas. 
 1913B, 1215; T^wis v. Lewis, 39 Okl. 407, 135 Pae. 397. In some states it 
 seems to he the rule that courts of equity base inherent power to decree 
 separate maintenance, irrespective of statute. Cureton v. Cureton, 117 Tenn. 
 103, 96 S. W. 608 ; State v. Superior Court, 85 Wash. 72, 147 Pae. 436. 
 
 *2 Pearson v. I'earson, 104 Misc. Rep. 675, 173 N. Y. Supp. 563 ; Sodowsky 
 V. Sodowsky, 51 Okl. 689, 152 Pae. 390 ; Weiserbs v. Weiserbs (Sup.) 169 N. 
 T. Supp. 111. 
 
 *3 See the statutes of the various states. Such abandonment was not an 
 offense at common law. Grantland v. State, 8 Ala. App. 319, 62 South. 470; 
 State V. Witham, 70 Wis. 473, 35 K W. 934. 
 
 •14 Underbill v. Mayer, 174 Ky. 229, 192 S. W. 14. 
 
 *5 Howe V. North, 60 Mich. 272, 37 N. W. 213 ; Miller v. Brown, 47 Mo. 
 504, 4 Am. Rep. 345; Crisfield v. Banks, 24 Hun, 159; Heugh v. Jones, 32 
 Pa. 432 ; Lavoie v. Dube, 229 Mass. 87, 118 N. B. 179 ; Bell v. Rossignol, 143 
 Ga. 150, 84 S. E. 542, L. R. A. 1915D, 1184, Ann. Oas. 1917C, 576 ; Edminston 
 V. Smith, 13 Idaho, 645, 92 Pae. 842, 14 L. R. A. (N. S.) 871, 121 Am. St. Rep. 
 294; Speckmann v. Foote (Sup.) 138 N. T. Supp. 380; Lipinsky v. Revell, 
 167 N. C. 508, 83 S. E. B20; Adair v. Arendt, 126 Ark. 246, 190 S. W. 445; 
 Wilder v. Brokaw, 141 App. Div. 811, 126 N. Y. Supp. 932 ; UnderhUl v. May- 
 er, 174 Ky. 229, 192 S. W. 14; Charron v. Day, 228 Mass. 305, 117 N. E. 347 ; 
 Sherry v. Ldttlefield, 232 Mass. 220, 122 N. B. 300 ; Garstens v. Hanselman, 
 61 Mich. 426, 28' N. W, 159, 1 Am. St. Rep. 606; Bonebrake v. Tauer, 67 
 Kan. 827, 72 Pae. 521 ; Mayer v. Lithauer, 28 Misc. Rep. 171, 58 N. Y. Supp. 
 1064; Bazemore v. Mountain; 121 N. O. 59, 28 S. E. 17., But see June v. 
 Labadie, 132 Mich. 135, 92 N. W. 937, where itj was held that a contract to 
 
 *8 Feiner v. Bo.vnton, 73 N. J. Law., 136, 62 Atl. 420, Oooley, Gas. Persons 
 and Domestic Relations, 84; Quisenberry v. Thompson (Ky.) 43 S. W. 723; 
 Stevens v. Hush, 104 Misc. Rep. 69, 171 N. Y. Supp. 41 ; Strawbridge v. Wolff, 
 66 Pa. Super. Ct. 328. 
 
S4 EIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 Joint Liability of Husband and Wife for Family Expenses i 
 
 In several states, statutes have been enacted declaring that the 
 husband and the wife shall be jointly liable for family expenses, 
 such as necessary food, clothing, education of the children, etc.*^ 
 These statutes are for the benefit of creditors only, and do not 
 change the rule as to the primary liability of the husband.*^ Since 
 either the husband or thfe wife must be primarily chargeable with 
 the debt before liability can exist under the statute, there can be 
 no liability for goods purchased on the credit of a third person.*® 
 
 In order to charge either spouse under these statutes, the rela- 
 tion of husband and wife must exist, and the expense must be a 
 "family" expense. ^^ < So, to charge the wife under such statutes for 
 
 pay the board of an adult sister and her child was invalid, as not having 
 reference to the possessor's separate estate. See, also, ChicUeiing-Chase. 
 Bros. Co. V. L. J. White & Co., 127 Wis. 88, 106 N. W. 797, holding that 
 she has no power to contract for board and lodging while living with her 
 husband. 
 
 *'^Rev. St. Colo. 1908, § 3021; Hurd's Rev. St. 111. 1915-16, c. 68, § 15; 
 Gen. St. Minn. 1913, § 7146; Comp. Laws, Utah, 1907, § 1206; Comp. Laws, 
 N. D., 1913, § 4414; Code Iowa, § 3165; Comp. St. Neb. c. 53, § 1; Lord's 
 Oregon Laws, § 7039. A somewhat similar statute formerly existed in Ala- 
 bama, but has been repealed. Ernst v. Hdllis, 89 Ala. 638, 8 South. 122. 
 These statutes are not retroactive and do not apply to expenses incurred 
 prior to their enactment. Kelly v. Canon, 6 Colo. App. 465, 41 Pac. 833. The 
 statute is in derogation of the common law. Mandel Bros. v. Ringstrom, 
 189 111. App. 564. While it should receive reasonable construction, it 
 should not be extended by implication to matters not fairly inferable from 
 the words used. Staver Carriage Co. v. Beaudry, 138 111. App. 147. Under 
 the statute there may be a joint or several judgment against the husband and 
 wife. Keefer v. Amicone, 45 Colo. 110, 100 Pac. 594. The provision of 
 Const. § 213, that a wife's separate property shall not be liable for her hus- 
 band's debts does not render unconstitutional the statute providing for joint 
 liability for family expenses. Banner Mercantile Co. v. Hendricks, 24 N. D. 
 16, 138 N. W.. 993. 
 
 -18 In re Skillman's Estate, 146 Iowa, 601, 125 N. W. 343, 140 Am. St. Rep. 
 295; In re Kosanke's Estate, 137 Minn. 115, 162 N. W. 1060; Taylor v. Tay- 
 lor, 54 Or. 560, 103 Pac. 524 ; Hudson v. Sholem, 65 111. App. 61. 
 
 49 Parker v. Joslin Dry Goods Co., 52 Colo. 238, 120 Pac. 1042, Ann. Cas. 
 1913D, 633. 
 
 =0 Berow v. Shields, 48 Utah, 270, 159 Pac. 538. , Servants are members of 
 the family within the statute. Pippin v. Jones, 52 Ala. 161. Children of 
 husband by a former marriage are not members of the family for whose 
 expenses the wife can be held liable as for family expenses. May v. Smith, 
 48 Ala. 483. A widow after the death of her husband became the head of the 
 family, and her estate was liable for tbe family necessaries purchased by 
 any member of the family, though over age, whether prior or subsequent to 
 the husband's death. Graham & Corry v. Work, 162 Iowa, 383, 141 N. W. 
 428, 
 
§§ 34-35) SUPPORT OF WIPE AND FAMILY 85 
 
 ^oods furnished to the husband, it must appear that the husband 
 and wife are living together as a family."^ If the family relation 
 has once existed, a tradesman who sells goods without knowledge 
 or means of knowledge that the relation has ceased by separation, 
 can nevertheless hold the husband and wife jointly liable. ^^ Such 
 joint liability exists for goods sold while the husband and wife 
 , are living together, though they are not delivered until the day of 
 separation, if the seller is ignorant of the contemplated separation. ^^ 
 / The liability thus imposed on the wife is not dependent on her 
 having a separate estate,'* nor is it dependent on the consent or 
 authorization of the spouse sought to be charged.' ' It has been 
 held in Iowa that a creditor who has obtained a judgment against 
 the husband for a family expense may in an equitable action sub- 
 ject the property of the wife to the payment thereof, without first 
 recovering a judgment. against her;'* but this doctrine has been 
 rejected in Nebraska, on the ground that, under the statute,, the lia- 
 bility of the wife is, in effect, that of a surety only, and that she is 
 entitled to her day in court before any judgment can be recovered 
 against her. She may be able to show that the goods furnished 
 w^ere not a family expense, or that they were sold on the exclusive 
 credit of the husband, or some other fact exempting her from 
 liability.'^ 
 
 BiGilman v. Mathews, 20 Colo. App. 170, 77 Pac; 366; O'Brien v. Galley- 
 Stockton Shoe Co. (Colo.) 173 Pac. 544; Berow v. Shields, 48 Utah, 270, 159 
 Pae. 538. A family still exists, though there is a mere temporary separation, 
 hut not if the separation is permanent. Berow v. Shields, 48 Utah, 270, 
 159 Pae. 538. 
 
 52 Stontenborough v. Eammel, 123 111. App. 487. But compare Hudson 
 V. Sholem, 65 III. App. 61, holding that household furnishings sold to the 
 wife in contemplation of separation and intended for her personal use are 
 not a family expense within the statute. The wife cannot be held liable as 
 for a "family expense" for the board of her husband, wherehe has left 
 home in contemplation of a separation. Vase v. Myott, 141 Iowa, 506, 120 N. 
 W. 58, 21 L. E. A. (N. S.) 277. 
 
 53 Arnold V. Keil, 81 111. App. 237. 
 
 5* Banner Mercantile Co. v. Hendricks, 24 N. D. 16, 138 N. W. 993. 
 
 ssMandel Bros. v. Ringstrom, 189 111. App. 564; Hudson v. K^ng, 23 111. 
 App. 118. Compare Haggar d j. Holmes, 90 Iowa, 308, 57 N. W. 871, holding 
 that, where the husband purdiased an atlas and history against the protest 
 of the wife, she cannot be held, in the absence of evidence that it was family 
 ■expense. ' 
 
 SB Boss V. Jordan, 118 Iowa, 204, 89 N. W. 1070, 92 N. W. Ill; Frost v. 
 Parker, 65 Iowa, 178, 21 N. W. .507 (holding that the assignee of the judg- 
 ment may enforce it against the wife). 
 
 57 George^ Edney, 36 Neb. 604, 54 N. W. 586. And see also Janney v. 
 Buell, 55 Ala. 408. 
 
86 RIGHTS AND DUTIES INCIDENT TO COVEETUBE (Ch. 2 
 
 A note given by the husband for family expenses is not conclu- 
 sive on the wife, either as to existence of the debt or the amount 
 thereof.'* If the claim has become ba'rred by the running of the 
 statute of limitations, it cannot be revived, as against the wife, by 
 the husband without her consent.'" 
 
 What are Family Expenses 
 
 Family expenses, within the meaning of the statutes, are ex- i 
 penses incurred for something used in the family, or beneficial to the 
 family."" The term is not necessarily synonytnous with "neces- 
 saries." °^ The term includes expenses incurred for food,"^ cloth- 
 ing,"^ household utensils °* and hire of domestic servants,"' rent 
 
 08 McCartney & Sons' Co. v. Carter, 129 Iowa, 20, 105 N.. W. 339, 3 L. K. 
 A. (N. S.) 145 ; Dale v. Marvin, 76 Or. 528, 148 Pac. 1116, Ann. Cas. 1917C, 
 557, rehearing denied 76 Or. 528, 148 Pac. 1151. If the original debt is an 
 existing claim not barred by the statute of limitations, the wife would be 
 liable on a note given by the husband for the debt. Lawrence v. Sinnamon, 
 24 Iowa, 80. 
 
 s9 Lewis V. Lynch, 61 lU. App. 476. Compare Vest v. Kramer (Iowa) 114 
 N. W. 886, 14 L. R. A. (N. S.) 1032, holding that a wife's liability for phya- 
 cians' services rendered in her husband's last siclmess was a statutory lia- 
 bility enforceable against her by ori^inary action within five years, though 
 the physicians' claim against the husband's' estate was barred by their fail- 
 ure to prove the same in time. 
 
 6 Straight v. McKay, 15 Colo. App. 60, 60 Pac. 1106; Fitzgerald v. Mc- 
 Carty, 55 Iowa, 702, 8 N. W. 646; Hyman v. Harding, 162 111. 357, 44 N. E. 
 754. In an action against husband and wife under the statute, it need not 
 be proved that every article furnished was of a domestic character, but 
 'deductions may be made for those that were not. Meier & Frank Co. v. 
 Mitlehner, 75 Or. 331, 146 Pac. 796. A dress made for the wife which she 
 refused to accept is not a family expense, it not having been bought for family 
 use or actually used' or kept for use in the family. Robertson v. Warden, 
 197 111. App. 478. In the absence of proof that it was a family expense, a 
 wife pannot be held for an atlas bought by her husband against her pro- 
 test. Haggard jv. Holmes, 90 Iowa, 30S, 57 N. W. 871. 
 
 oiMandel -Bros. v. Ringstrom, 189 111. App. 564; Ross v. Johnson, 125 111. 
 App. 65; Berow v. Shields, 48 Utah, 270, 159 Pac. 538. 
 
 62 Hayden v. Rogers, 22 111. App. 557. -The wife is not liable for beer fur- 
 nished to the husband. O'Neil v. Cardina, 159 Iowa, 78, 140 N. W. 196, 44 L. 
 R. A. (N. S.) 1175. 
 
 6 3 Ross v. Johnson, 125 111. App. 65. No recovery may be had against a 
 husband for a dress made on the order of his wife which she has refused to 
 accept ; it not having been bought for family use and actually used or kept 
 for use in the family. Robertson v. Warden, 197 111. App. 478. 
 
 4 Finn. v. Rose, 12 Iowa, 565 (cook stove) ; McDaniels v. McClure, 142 Iowa, 
 370, 120 N. W. 1031, 134 Am. St. Bep. 424 (heating stove and other utensils) . 
 
 of^Perldns v. Morgan, 36 Colo. 360, 85 Pac. 640; Ciimpbell v. Heuer, 139 
 111. App. 631. 
 
§§ 34-35) SUPPORT OF WIPE AND FAMILY 87 
 
 of dwelling actually occupied by the family,"* but not otherwise."^ 
 Medical services rendered to members of the family are also a 
 family expense within the statute."' Expenses incurred for musical 
 instruments,"" for a buggy for the use of the family,^" and for 
 jewelry '"■ have been held tp be family expenses. It has, however, 
 been held that money borrowed to pay family expenses is not with- 
 in the statute.''* Of course, the term "family expenses" cannot be 
 .extended to apply to expenses incurred in the management of a 
 business conducted by either spouse, or both of them.'" 
 
 Duty of Wife to Support Husband 
 
 At common law the wife is under no duty to support her hus- 
 band ; '* but she may be made responsible for his support by stat- 
 ute.^^ Thus it has been held in North Dakota '" that under the 
 
 86 Hoiigliteling v. Walker (C. C.) 100 Fed. 253, affirmed Walker v. Hough- 
 teling, 107 Fed. 619, 46 C. C. A. 512 (applying Illinois statute) ; Straight v. 
 McKay, 15 Colo. App. 60, 60 Pac. 1106; McDonnell v. Solomon, 64 Colo. 226, 
 170 Pac. 951. But see Lewis v. France, 137 Minn. 333, 163 N. W. 656, L. E. 
 A. 1917F, 860. 
 
 6T Schurz V. McMenamy, 82 Iowa, 432, 48 N. W. 806. Rent after premises 
 were vacated and claim for damage to furniture were not family expense. 
 Straight v. McKay, 15 Colo. App. 60, 60 Pac. llOp. 
 
 «8Murdy v. Styles, 101 Iowa, 549, 70 N. W, 714, 63 Am. St. Bep. 411; 
 I.«ake V. liucas, 65 Neb. 359, 93 N. W. 1019, 62 L. R. A. 190; Mueller v. 
 Kuhn, 59 111. App. 353; Vest v. Kramer (Iowa) 114 N. W. 886, 14 L. B. A. 
 (N. S.) 1032. 
 
 60 Smedley v. Felt, 41 Iowa, 588; Frost v. Parker, 65 Iowa, 178, 21 N. W. 
 507. But compare Jones-Rosquist-Killen Co. v. Nelson, 98 Wash. 539, 167 
 Pac. 1130. 
 
 70 Houck V. La Junta Hardware Co., 50 Oolo. 228, 114 Pac. 645, 32 L. B. A, 
 (N. S.) 939; McDaniels v. McClure, 142 Iowa, 370, 120 N. W. 1031, 134 Am, 
 St. Rep. 424. 
 
 71 Marquardt v. Flaugher, 60 Iowa, 148, 14 N. W. 214 (ring) ; Measham__v__ 
 McNair, 103 Iowa, 695, 72 N. W. 773, 38 L. B. A. 847, 64 Am. St. Bep. 202, 
 holding that a diamond shirt stud worn by the husband for personal use and 
 adornment is a family expense within the statute. But see Hyman v. 
 Harding, 162 111. 357, 44 N. E. 754, affirming Harding v. Hyman, 54 111. 
 App. 434, -holding that a ring was not a family expense, and Otto v. Matthie, 
 70 111. App. 54, holding that diamond earrings are not. 
 
 72 Davis V. Eitchey, 55 Iowa, 719, 8 N. W. 669. 
 
 73 Chamberlain v. Townsend, 72 Or. 207, 142 Pac. 782, 143 Pac. 9^4 (farm 
 expenses); Martin Bros. v. Vertres, 130 Iowa, 175, 106 N. W. 516 (feed for 
 horse used in business) ; Stayer Carriage Co. v. Beaudry, 138 111. App. 147 
 (carriage used by physician). 
 
 74 WVUy V. Collins, 9 Ga. 223 ; Blackhawk County v. Scott, 111 Iowa, 190, 
 82 N. W. 492. 
 
 7 5Hickle V. Hickle, 6 Ohio Civ. Ot. E. 490; Santos v. Sweeney, 4 Phil. 
 
 7 8 Hagert v. Hagert, 22 N. D. 290, 133 N. W. 1085, 38 L. R. A. (N. S.) 966, 
 Ann. Cas. 1914B, 925. 
 
88 RIGHTS AND DUTIES INCIDENT TO COVERTURE Ch. 2 
 
 Statute of that state " an equjitable action at the suit of the husband 
 will lie to compel the wife, who is amply able to do so, to support 
 the husband; he being unable to gain his own livelihood by reason 
 of age or other infirmity. 
 
 RIGHT TO DETERMINE FAMILY DOMICILE 
 
 36. The husband has a right to fix or to change the family domicile, 
 and refusal of his wife to follow him, jvithout sufficient ex- 
 cuse, win amount to desertion. 
 
 The general rule is that on marriage the domicile of the wife 
 merges in that of her husband, and changes with his during the 
 coverture.''* He has the power to establish the family domicile, and 
 it is the duty of the wife to follow him, and her refusal to do so 
 without sufficient excuse amounts to desertion. ■'" Even a prom- 
 ise before marriage not to take her away from the neighborhood 
 of her mother and friends is not binding, and does not justify heir 
 refusal to accompany him to a new domicile.*" 
 
 Kep. 79. And see Livingston v. Conant, 119 Cal. xvil, 51 Pac. 859, hold- 
 ing that under Civ. Code Cal. §§ 155, 176, a Mfe may be required to sup- 
 port her infirm husband. But see Blackhawk County v. Scott, 111 Iowa, 
 190, 82 N. W. 492, holding that, under the Iowa statute making husband 
 and wife jointly liable for family expenses, a wife is not bound to pay the 
 expense of keeping her insane husband in an asylum. 
 
 77 Rev. Codes 1905, § 4077 (Comp. Laws 1913, § 4409). 
 
 T 8 Dolphin V. Robins, 7 H. L. Cas. 390; Greene v. Greene, 11 Pick. (Mass.) 
 410; Pennsylvania v. Eavenel, 21 How. 103, 16 L. Ed. 33; Davis v. Davis. 
 .30 111. 180 ; Haekettstown Bank v. Mitchell, 28 N. J. Law, 516. 
 
 7 Hair v. Hair, 10 Kich. Eq. (S. C.) 163;' Price v. Price, 75 Neb. 552, 106 
 N. W. 657, Cooley Cas. Persons and Domestic Relations, 41 ; Birmingham 
 V. O'Neil, 116 La. 1085, 41 South. .323; Winkles v. Powell, 173 Ala. 46, 55 
 South. 536; Hunt v. Hunt, 61 ma. 630, 54 South. 390; Purnell v. Purnell 
 (N. J.) 70 Atl. 187; Bennett v. Bennett, 91 Vt. 54, 99 Atl. 254; Hunt v. 
 Hunt, 29 N. J. Bq. 96 ; Kennedy v. Kennedy, 87 111. 250 ; Walker v. Laighton, 
 31 N. H. 111. And see Klein v. Klein, 96 S. W. 848, 29 Ky. Law Rep. 1042, hold- 
 ing that it is the duty of the wife to accept such residence as the husband may 
 select without unwarranted parsimony or stubbornness on his part. See, also, 
 Richardson v. Stuesser, 125 Wis. 66, 103 N. W. 261, 69 L. R. A. 829, 4 Ann. 
 Cas. 784, holding that the common-law liability of a husband to support 
 his wife does not extend to supporting her outside the matrimonial homo 
 reasonably chosen by him, unless he refuses to do so there, or she resides 
 away therefrom by his consent. 
 
 so Jac. Dom. §§ 215, 216; Schouler, Dom. Rel. §§ 37, 38; Franklin v. Frank- 
 lin, 154 Mass. 515, 28 N. E. 681, 13 L. R. A. 843, 26 Am. St. Rep. 206. 
 
§ 36) EIGHT TO DETERMINE. FAMILY DOMICILB 89 
 
 While the cases generally state the rule to be that the husband 
 has the absolute right to establish the domicile in any part of the 
 world, yet the right is undoubtedly not an arbitrary one, but. one 
 that must be exercised with discretion, according to the exigencies 
 and conditions of the case." Tjius it was said in a Vermont 
 case : '^ "While we recognize fully the right of the husband to 
 direct' the affairs of his own house, and to determine the place of 
 abode of the family, and that it is in general the duty of the wife 
 to submit to such determinations, it is still not an entirely arbitrary 
 power which the husband exercises in these matters. He rriust 
 exercise reason and discretion in regard to them. If there is any 
 ground to conjecture that the husband requires 'the wife to reside 
 where her health or her comfort will be jeoparded, or even where 
 she seriously believes results will follow which will almost of neces- 
 sity produce the effect, and it is only upon that ground that 6he 
 separates from him, the court cannot regard her desertion as 
 continued from mere willfulness." '^ 
 
 An exception to the general rule that the domicile of the wife 
 follows that of the husband arises in cases where the husband 
 abandons the wife and removes to- another state for the purpose 
 of obtaining a divorce, or when the wife by reason of the mis- 
 conduct of the husband has been compelled to leave him. In such 
 cases the wife can acquire a domicile of her own distinct from that 
 of the husband.** 
 
 811 Bish. Mar., Div. & Sep. §§ 1713, 1714; Gleason v. Gleason, 4 Wis. 64; 
 Hardenbergh v. Hardenbergh, 14 Cal. 654 ; Boyce v. Boyce, 23 N. J. Bq. 337 ; 
 Bishop V. Bishop, 30 Pa. 412 ; Molony v. Molony, 2 Addams, Bcc. 249 ; 
 Keech v. Keeeh, 38 Law J. Pr'ob. & Mat. 7; Powell v. Powell, 29 Vt. 148; 
 Albee V. Albee, 141 111. 550, 31 N. E. 153. See, also, In re Baurens, 117 La. 136, 
 41 South. 442, where it is held that the obligation of a husband to provide 
 for his wife and children at the matrimonial domicUe is not discharged If, 
 by reason of his cruelty, the wife is compelled to seek shelter with her 
 minor children at the residence of her father in a neighboring parish. 
 
 «2 Powell V. Powell, '29 Vt. 148. 
 
 8 3 See, also, McKay v. McKay, 192 Mo. App. 221, 182 S. W. 124. The uni- 
 versally recognized right of the husband to select his own domicile must 
 be reasonably and not arbitrarily exercised; the question in each case to 
 be determined on the peculiar facts and circumstances there existing. Spaf- 
 ford V. Spafeord (Ala.) 74 South. 354, L. R. A. 1917D, 773. 
 
 «* See post, p. 245. 
 
90 EIGHTS AND DUTIES INCIDENT TO COVBETTJKE (Ch. 2 
 
 CRIMES OF MARRIED WOMEN 
 
 37. A married woman is responsible, as if sole, for crimes volun- 
 tarily committed by her. If she commits an offense in the 
 presence o f her husband; or, though not in his immediate 
 presence, near enough to be under his immediate influence , 
 and control, she is presumed to have acted, not voluntarily, 
 but under his^cogrcioiu and he is responsibly, while sh e 
 is excused. This presumption may always be rebutted 
 by showing that there was no coercion. In some jurisdic- 
 tions it is held that the rule does not apply to treason, 
 murder, or robbery. 
 
 As a general rule, a married woman is answerable persona lly for 
 her crimes, as if she were sole. °° Where, however, she commits 
 an offense in the presence of her husband, she is presumed to have ' 
 acted under his coercion, and he must suffer therefor, while she is 
 excused on the ground of compulsion.. An early case on this point, 
 decided in 1352, was a case in which a woman was indicted for 
 larceny. T)ie jury found "that she did it by coercion of her hus- 
 band, in spite of herself," and she was acquitted.*" The fact that 
 the wife was active in committing the crime, or even more active 
 than her husband, does not necessarily render her guilty, though 
 this fact, of course, may tend to rebut the presumption of coercion ^ 
 for her guilt depends, not upon the fact of her activity, but upon 
 whether that activity was voluntary, or caused by her husband's 
 
 S5A married woman cannot be held criminally liable for the violation of 
 a contract under a statute declaring such violation an offense, if the con- 
 tract is void. State v. Eobinson, 143 N. C. 620, 50 S. B. 918. Since a hus- 
 band and wife are in law one person, they cannot between themselves be 
 guilty of conspiracy. People v. Miller, 82 Oal. 107, 22 Pac. 934; Merrill v. 
 Marshall, 113 111. App. 447. The wife may be convicted of keeping a bawdy- 
 house, though husband rented the house. Barker v. State, 64 Tex. Or. R.. 
 106, 141 S. W. 529. See, also, Hudson v. Jennings, 134 Ga. 373, 67 S. E. 1037 ; 
 State V. Gill, 150 Iowa, 210, 129 N. W. 821. 
 
 so Anon., Lib. Ass. 137, pi. 40. And see Clark, Cr. Law, 77; Clark, Or. 
 Cas. 141; Anon., Kelyng, 31; Reg. v. Dykes, 15 Cox, Or. Gas. 771; Rex v. 
 Price, 8 Oar. & P. 19; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105; Davis 
 V. State, 15 Ohio, 72, 45 Am. Dec. 559; State v. Houston, 29 S. C. 108, 6- 
 S. E. 943; Com. v. Daley, 148 Mass. 11, 18 N. E. 579; State v. Harvey, 
 130 Iowa, 394, 106 N. W. 938 ; State v. Kelly, 74 Iowa, 589, 38 N. W. 503 ;'. 
 State V. Bell, 29 Iowa, 316; Roberts v. People, 19 Mich. 401; Mulvey v'. 
 State, 43 Ala. 316, 94 Ava. Dec. 684; State v. Baker, 110 Mo. 7, 19 S. W 222 
 33 Am. St. Rep. 414. 
 
§ 37) CRIMES OP MARRIED WOMEN 91 
 
 coercion.'^ The rule, according to the _ weight of authority, do ps 
 not apply to treason or murder.^' "As to murder, if husband and 
 wife both join in it, they are both equally guilty." *° It has, how- 
 ever, been applied even in the case of murder; and, on principle, 
 there is no reason why it should not be."" It applies to assault 
 with intent to kill,"^, to burglary,"^ and, by the weight of opinion, 
 to robbery.'^ 
 
 This presuihption does not arise from the mere command of her 
 husband, atie must have been in his presence, or so near that he 
 could have exerted an immpdiatp influence and control over her. 
 There is no "ley f^l prpctimpHnn t hat acts done by a wife in he r 
 husband's absence are done under his coercion or control. Indeed 
 if she, in his absence, do a criminal act, even by his order or pro- 
 curement, her coverture will be no defense." °* She need not, how- 
 ever, have been in his immediate presence, but it is sufficient if she 
 was near enough to be under his influence and control. It was 
 so held where a woman was indicted for an unlawful sale of in- 
 toxicating liquors, and it appeared that when she made the pale 
 her husband was not in the room with her, but was on the prem- 
 ises. '^ In order to establish the fact of the husband's presence, it 
 is not necessary to show that the act was done literally in his sight. 
 If he was near enough for the wife to be under his immediate 
 influence and control, it is sufficient, though he may not have been 
 
 87 state V. Houston, 29 S. C. 108, 6 S. E. 943. 
 
 8 8 At common law, a married woman was not responsible for crimes 
 committed in the presence of her hu.sband, except murder and treason; 
 but for crimes committed out of her husband's presence, she was as re- 
 sponsible as if single. Morton v. State, 141 Tenn. 357, 209 S. W. 644, 4 A. L. 
 K. 264. 
 
 8 9 Anon., Kelyng, 31. And see Davis v. State, 15 Ohio, 72, 45 Am. Dec. 
 559; Bibb v. State, 94 Ala. 31, 10 South. 506, 33 Am. St. Rep. 88. See dic- 
 tum in Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105. 
 
 90 State V. Kelly, 74 Iowa, 589, 38 N. W. 503. 
 
 91 Roberts v. People, 19 Mich. 401. 
 
 92Anon., Kelyng, 31; State v. Bell, 29 Iowa, 316. 
 
 »3Reg. V. Dyl£,es, 15 Cox. Or. Cas. 771; People v. Wright, 38 Mich. 744,. 
 31 Am. Kep. 331; Miller v. State, 25 Wis. 384; Com. v. Daley, 148 Mass. 
 11, 18 N. E. 579; Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559. Contra: 
 Bibb V. State, 94 Ala. 31, 10 South. 506, 33 Am. St. Rep. 88. 
 
 94 Com. V. Butler, 1 Allen (Mass.) 4; Com. v. Feeney, 13 Allen (Mass.) 
 560; State v. Potter, 42 Vt. 495; Com. v. Munseyj 112 Mass. 287; State 
 V. Shee* 13 R. I. 535; Rex v. Morris, Russ. & R. 270; Seller v. People, 77 
 JS'. y. 411. 
 
 95 Coin. v. Burk, 11 Gray (Mass.) 437; Com. v. Munsey, 112 Mass. 287. 
 
92 RIGHTS AND DUTIES INCIDENT TO COVEKTUKB (Ch. 2 
 
 in the same room ; for if he was on the premises, and near at hand, 
 a momentary absence from the room, or a momentary turning- 
 of his back, might still leave her under his influence.'* "No exact 
 rule, applicable to all cases, can be laid down as to what degree of 
 proximity will constitute such presence, because this may vary with 
 the varying circumstances of particular cases ; and where the wife 
 did not act in the direct presence of her husband, or under his eye, 
 it must usually be left to the jury to determine incidentally wheth- 
 er his presence was sufficiently immediate or direct to raise the 
 presumption. But the ultimate question, after all, is whether she 
 acted under his coercion or control, or of her own free will, inde- 
 pendently of any coercion or control by him ; and this is to be 
 determined in view of the presumption arising from his presence, 
 and of the testimony or circumstances tending to rebut it, if any 
 such exist." *' 
 
 From what has been said, it will be seen that the presumption of 
 coercion is not conclusive, even where the wife acted in the im- 
 mediate presence of her husband; but it may always be rebutted 
 by showing to the satisfaction of the jury that she acted of her own 
 free will, and not under coercion. °* 
 
 In some states the common-law rule exempting a married woman 
 from criminal liability for acts done in the presence of her hus- 
 band, in the absence of a showing that she acted Without coercion, 
 has been changed by Statute. In Georgia, for instance, by stat- 
 ute, a wife is not excused by the mere presence of her husband; 
 but it must be made to appear, in order to excuse her, that "violent 
 threats, commands, or coercion were used" by him.'' 
 
 »s Com. V. Munsey, 112 Mass. 287. 
 
 9 7 Com. V. Daley, 148 Mass. 11, 18 N. E. 579. 
 
 osReg. V. Cruse, 8 Car. & P. 553; Blakeslee v. Tyler, 55 Conn. 397, 11 
 Atl. 855 ; People v. Wright, 38 Mich. 744, 31 Am. Kep. 331 ; Miller v. State, 
 25 Wis. 384 ; State v. Cleaves, 59 Me. 298, 8 Am. Kep. 422 ; Reg. v. Torpey, 
 12 Cox, Cr., Cas. 45 ; State v. Nowell, 156 N. C. 648, 72 S. E. 590 ; Morton 
 V. State, 141 Tenn. 357, 209 S. W. 644, 4 A. L. R. 264; Wagener v. Bill, 
 19 Barb. (N. Y.) 321; Com. v. Eagan, 103 Mass. 71; U. S. v. Terry (D. 
 C.) 42 Fed. 317. As by shoTving, that the husband -was crippled, and in- 
 capable of coercion. Reg. v. Cruse, supra. 
 
 8s Bell V. State, 92 Ga. 49, 18 S. E. 186. In view of the Married Wom- 
 an's Act of 1913 (Acts 1913, c. 26), there is no longer any presumption 
 that the wife in committing a crime acts under coercion of husband. Mor- 
 ton V. State, 141 Tenn. 357, 209 S. W. 644, 4 A. L. R. 264. 
 
38) CBIMES AS BETWEEN HUSBAND AND WIPE 93 
 
 CRIMES AS BETWEEN HUSBAND AND WIFE 
 
 38. Generally, husband and wife are criminally liable for criminal 
 acts committed against eatch other. Because of the rela- 
 tion, however, at common law 
 
 (a) Neither can commit larceny, burglary, or arson against the 
 
 other; nor is one who assists the wife guilty of larceny. 
 EXCEPTION — This does not apply where the wife is an adul- 
 teress, or elopes for the purpose of adultery, and steals 
 her husband's property. 
 
 (b) The husband cannot commit a rape upon his wife, except : 
 EXCEPTION — As principal in the secbnd degree, or as acces- 
 sory, by abetting or assisting another to ravish her. 
 
 The principle that, in .the eye of the law, husband and wife are 
 one person, prevents certain acts by the one or the other of them 
 from being a crime, though it would be otherwise were the same 
 act committed against a stranger. It is well settled, for instance, 
 that at common law neither a husband nor a wife can commit lar- 
 ceny from the other.^ 
 
 And so far is this doctrine carried that a third person who as- 
 sists a wife in taking her husband's property is not guilty of lar- 
 ceny.^ An exception to this rule is made in cases where a wife be- 
 comes an adulteress. If she then takes her husband's property, 
 animo furandi, she commits larceny; and so does her paramour, 
 if he assists her in taking it.^ "The general rule of law is that a 
 
 1 Clark, Cr. Law, 247 ; Reg. v. Kenny, 13 Cox, Cr. Cas.. 397, 2 Q. B. Div. 
 307 ; Reg. v. Tollett, Car. & M. 112 ; Thomas v. Thomas, 51 111. 162 ; Snyder 
 V. People, 26 Mich. 106, 12 Am. Rep. 302; Com. v. Hartnett, 3 Gray (Mass.) 
 450 ; Overton v. State, 43 Tex. 616 ; State v. Banks, 48 Ind. 197 ; Lamphier 
 V. State, 70 Ind. 317. But under the married women's property act (St. 
 45 & 46 Vict. c. 75), §§ 12, 16, the wife may be convicted of larceny of her 
 husband's goods wrongfully taken when leaving, deserting, or about to 
 leave or desert him. Bex v. James, 71 Law J. K. B. 211, [1902] 1 K. B. 
 540, 86 Law T. 202, 50 Wkly. Rep. 286, 66 J. P. 217, 20 Cox, Cr. Cas. 156. 
 And see Beasley v. State, 138 Ind. 552, 38 N. B. 35,^46 Am. St. Rep. 418, 
 holding that under married woman's property statutes husband may be 
 guilty of larceny of wife's goods. 
 
 2 Clark, Cr. Law, 247 ; Beg. v. Tollett, Car. & M. 112 ; and cases in the 
 following note. 
 
 3 Reg. V. Avery, 8 Cox, Cr. Cas. 184; Reg. v. Thompson, 2 Craw. & D. 
 491; Rex v. Clark, 1 Moody, Cr. Cas. 376, note; Reg. v. Featherstone, & 
 Cox, Cr. Cas. 376; Rex v. Tolfree, 1 Moody, Cr. Cas. 243; Reg. v. Tollett, 
 Car. & M. 112 ; State v. Banks, 48 Ind. 197, 198 ; People v. Schuyler, 6 Cow. 
 
94 RIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 wife cannot be found guilty of larceny for stealing the goods of her 
 husband, and ^\ )ai- is iip nn the principle that the husband and wif e 
 %re, in the eye of the law, one person ; but this rule is properly an d 
 r. ea^onablv qualified when she h '"'""^''" "" aHultprcss. — She_there- 
 by determines her quality of wife, and her property in her h us- 
 band's ^oods ceas es." * 
 
 On the same priiicipl? of unity of husband and wife, with the 
 consequent right of each to the joint {Possession and use of the 
 other's property, neither husband nor wife can coinmit burglary 
 or arson, as against the other's dwelling house." 
 
 A husband has a legal right to sexual intercourse with his wife, 
 and therefore he cannot be guilty of rape, in having intercourse 
 with her forcibly and against her will." He may, however, be 
 guilty as a principal in the second degree, or as accessory, accord- 
 ing to the circumstances, if he aids or abets another in a rape upon 
 her.' 
 
 With the exceptions above stated, husband and wife are general- 
 ly liable to the criminal law, for criminal acts committed against 
 each other. If either kills the other, he or she is liable for the homi- 
 cide. S o either o fthem is criminally liabl e for an assaul t_aiid bat- 
 tery o n the other." 
 
 (N. Y.) 572; Clark, Cr. Law, 247, 248. This, it has been said, does not 
 apply where the wife merely carries away her necessary apparel. State v. 
 Banks, 48 Ind. 197, 198. But see Reg. v. Tollett, Car. & M. 112. 
 
 * State V. Banks, 48 Ind. 197, 198. 
 
 5 Snyder v. People, 26 Mich. 106, 12 Am. Kep. 302 ; Rex v. March, 1 Moody, 
 Cr. Cas. 182; State v. Toole, 29 Conn. 342, 76 Am. Dec. 602; Adams v. 
 State, 62 Ala. 177; Clark, Cr. Law, 229; Clark, Cr. Cas. 307. Contra, 
 under modern statutes. Garrett v. State, 109 Ind. 527, 10 N. E. 570. But 
 see cases cited above. In which it' is shown that the married women's acts 
 are not to be construed as changing the common law. 
 
 8 Clark, Cr. Law, 190. 
 
 7 Strang v. People, 24 Mich. 13 ; People v. Chapman, 62 Mich. 280, 28 N. 
 W. 896, 4 Am. St. Rep. 857 ; State v. Dowell, 106 N. C. 722, 11 S. E. 525, 8 
 L. R. A. 297, 19 Am. St. Rep. 568. 
 
 a Clark, Cr. Law, 212, 213 ; Com. v. McAfee, 108 Mass. 458, 11 Am. Rep. 
 383; State v. Oliver, 70 N. C. 60; State v. Finley, 4 Pennewill (Del.) 29, 
 55 Atl. 1010; I'ulgham v. State, 46 Ala. 143; Reg. v. Jackson, [1891] 1 Q.' 
 B. Div. 671. Where a husband, concealing from his wife that he has syph- • 
 ills, an infectious disease, communicates it to her, he is guilty of an as- 
 sault and battery. State v. Lankford, 6 Boyce (Del.) 594, 102 Atl. 63. A 
 husband may be convicted of slandering his wife under Revisal 1905, § 
 3640, providing that, if any person shall attempt in a wanton and malicious 
 manner to destroy the reputation of an innocent woman by words writ- 
 ten or spoken which amount to a charge of incontinency, he shall be guilty 
 of a misdemeanor. State v. Fulton, 149 N. C. 485, 63 S. B. 145. 
 
§§ 39-42) TOBTS OF MARRIED WOMEN 95 
 
 / 
 
 TORTS OF MARRIED WOMEN 
 
 39. At common law a husband, during coverture, is liable for the 
 
 torts committed by his wife, either before or during cover - 
 ture. This "lability ceases, however, when the coverture , 
 is determined by the death of either party, or by a divorce. 
 
 40. The rules governing a wife's liability for her own torts are 
 
 these: 
 
 (a) She is liable, jointly with her husband during coverture, and 
 
 solely after his death or a divorce, 
 
 (1) For torts committed in his absence , whether committed 
 
 by his direction or command, or not. 
 
 (2) For torts committed in his presenc e, but not by his direc- 
 
 tion or command, express or implied. 
 
 (b) She is not liable at all for torts committed in his presence, 
 
 and by his direction or command, but is excused on the 
 groun d of coercion., 
 
 (c) T^r ts committed by a wife in her husbaiid's actual or con- 
 
 structive presence are presumed to have been committed 
 by his d irerfinn nr rnmmanH • hut this presum ption i s 
 prima f aria only, ff"'l m^y h" t-pbiit^^H 
 
 41. Where a married woman's tort is so connected- with an at- 
 
 tempted contract by her that to hold her liable therefor 
 would be to recognize the contract, neither she nor her 
 husband is liable at common law. 
 
 42. These rules of the common law have been greatly modified 
 
 by modern statutes, in most jurisdictions, removing the 
 disabilities of married women, and by those taking from 
 the husband the rights which the common law gave him 
 in respect to his wife's property. Thus — 
 
 (a) I n some states a husband is no longer liable for the -tort s 
 
 n f- hjs wif p, unlffss he pj^rtjaiatod i n thci rc o nmussio n. 
 
 (b) In othersta tes he is l iffhlp for her pers onal torts, like slan- 
 
 der or assault, but not for torts com mi tted in the con trol 
 of her separate property. 
 
 (c) Where married women have by statute been given the pow- 
 
 er to contract, they may be liable for torts in connection 
 with their contracts. 
 
96 , RIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 Common-Law Doctrine * 
 
 At common law a husband is liable for the frauds and other torts 
 of his wife, whether they were committed by her before marriage/ 
 or during coverture.^" One of the reasons for this doctrine was that 
 t he xmi f y r»f lincKand and w ifej^en dered the wife incapable of b e- 
 i ing sued alone. T^L er husba nd had to be j nineH in all actinns against 
 her.^^ Another reason was that the husband became the absolut e 
 o wner of his wife's p erso nal property, and had thf rig-Vit tn rereive 
 her earrririgg^aprl tVip rpntc ^nd profits of her real estate^ so that it 
 was only just to hold him liable for her torts. ^^ A nother co ngid- 
 eratiOn was t hat be sVimild nn t perrni t her to commit tnrts .^^ The 
 liability, however, was not based on any idea that he was himself 
 guilty of her torts, even in contemplation of law.'* The liability 
 exists even where the husband is separated from his wife, so long 
 as the marriage has not been dissolved.'" 
 
 Where a w;ife acts in the absence of her husband, either by or 
 without his command,'" or where she acts in his presence, but of 
 her own volition, and without any coercion by him,''' she also is 
 
 »Macq. Husb. & W. 72; Schouler, Husb. & W. § 134; Palmer v. Wake- 
 field, 3 Beav. 227; Hawk v. Harman, 5 Bin. (Pa.) 43; Hubble v. Fogartie, 
 3 Rich. (S. 0.) 413, 45 Am. Dec. 775 ; Phillips v. Richardson, 4 J. J. Marsh. 
 (Ky.) 212; Kowing v. Manly, 49 N. T. 192, 10 Am. Rep. 346. 
 
 10 2 Kent, Comm. 149; Kowing v. Manly, 49 N. X. 192, 10 Am. Rep. 346; 
 Head v. Briscoe, 5 Car. & P. 484; Flesh v. Lindsay, 115 Mo. 1, 21 S. W. 
 907, 37 Am. St. Rep. 374 ; Jag. Torts, 216-223 ; Baker v. Young, 44 111. 42, 92 
 Am. Dec. 149; Fowler v. Chichester, 26 Ohio St. 9; Wright v. Kerr, Add. 
 (Pa.) i3; Vine v. Saunders, 5 Scott, 359; Ball v. Bennett, 21 Ind. 427, 83 
 Am. Dec. 356; Hinds v. Jones, 48 Me. 348; Dailey v. Houston, 58 Mo. 361; 
 Carleton v. Haywood, 49 N. H. 314; Jackson v. Kirby, 37 Vt. 448; Brazil 
 V. Moran, 8 Minn. 236 (Gil. 205), 83 Am. Dec. 772; Holtz v. Dick, 42 Ohio 
 St. 23, 51 Am. Rep. 791; Heckle v. Lurvey, 101 Mass. 344, 3 Am. Rep. 366. 
 
 11 Jag. Torts, 217; Baker v. Braslin, 16 R. 1. 635, 18 Atl. 1039, 6 L. R. A. 
 718. 
 
 12 Martin v. Robson, 65 ill. 129, 16 Am. Rep. 578. 
 
 13 Martin v. Robson, 65 111. 129, 16 Am. Rep. 578. 
 
 14 Baker v. Braslin, 16 R. I. 635, 18 Atl. 1039, 6 I.,. R. A. 718. 
 
 15 Head v. Briscoe, 5 Car. & P. 485; Ferguson v. Neilson, 17 R. I 81 20 
 Atl. 229, 9 L. R. A. 155, 33 Am. St. Rep. 855. 
 
 18 Cassln V. D«lany, 38 N. Y. 178; Head v. Briscoe, 5 Car. & P. 484; Cat- 
 terall v. Kenyon, 3 Q. B. 310 ; Whitmore v. Delano, 6 N. H. 543 ; Matthews 
 V. Tiestel, 2 B. D. Smith (N. Y.) 90; Handy v. Foley, 121 Mass. 259, 23 
 Am. Rep. 270; Brazil v. Moran, 8 Minn. 236 (Gil. 205), 83 Am. Dec 772- 
 Wheeler & Wilson Mfg. Co. v. Heil, 115 Pa. 487, 8 Atl. 616, 2 Am. St. Rep. 575 • 
 Smith V. Taylor, 11 Ga. 22; Marshall v. Cakes, 51 Me. 308; Heckle v Lur- 
 vey, 101 Mass. 344, 3 Am. Rep. 366. 
 
 "Hyde V. S., 12 Mod. 246; Vine v. Saunders, 5 Scott, 359; Roadcap v. 
 
§§ 39-42) TORTS OF MARRIED WOMEN 97 
 
 liable; and they not only may, but must, be sued jointly. At com- 
 mon law this liability is joint, and renders it necessary to sue the 
 husband and wife jointly. It is not enough to sue either the wife 
 or the husband alone.' ^ 
 
 Where, however, a tort is committed by a wife in the presence 
 of her husband, and by his command or coercion, she is not liable 
 at all. He only is liable, and must be sued alone.'" To thus exempt 
 a married woman from liability for her tortious acts, two things 
 must concur: she mus t_hay e been in her husband's prpsp nc, ^^- 
 tually or c onstructively; and she must have acted by J iis-a?tpfess 
 orTmplied command. An act by his command, but not in his pres- 
 eSce, renders Tierliable, and so it is if she does an act in his pres- 
 ence, but of her own volition, and not by his command.^" 
 
 If it is shown that the tort was committed by the wife in her 
 husband's presence, and nothing further appears, the presumption 
 of law is that she acted under coercion by him, so as not to be 
 liable herself.^' But the presumption is prima facie only, and may 
 always be rebutted, so as to render her liable by showing that she 
 acted of her own free will, and not by her husband's direction; 
 
 Sipe, 6 Grat (Va.) 213 ; Cassin v. Delany, 38 N. T. 178 ; Marshall v. Oakes, 
 51 Me. 808; Carleton v. Haywood, 49 N. H. 314; Brazil v. Moran, 8 Minn. 
 236 (Gil. 205), 83 Am. Dec. 772; Simmons v. Brown, 5 B. I. 299, 73 Am. 
 Dec. 66; Henderson v. Wendler, 39 S. C. 555, 17 S. E. 851. 
 
 18 Eversley, Dom. Rel. 295 ; Mitcliinson v. Hewson, 7 Term E. 348 ; Mar- 
 shall V. Oakes, 51 Me. 308. "For any wrong committed by her, she is liable, 
 and her husband cannot be sued without her. Neither can she be sued 
 without her husband." Per Erie, C. J., in Capel v. Powell, 34 Law J. C. 
 P. 168, 17 0. B. (N. S.) 743. And see the cases in the two preceding notes. 
 
 19 Cassin v. Delany, 38 N. Y. 178; Kosmlnsky v. Goldberg, 44 Ark. 401; 
 Brazil v. Moran, 8 Minn. 236 (Gil. 205), 83 Am. Dec. 772 ; Johnson v. Mc- 
 Keown, 1 McCord (S. C) 578, 10 Am. Dec. 698 ; Ball v. Bennett, 21 Ind. 427, 
 83 Am. Dec. 356 ; Dohorty v. Madgett, 58 Vt. 323, 2 Atl. 115 ; Flesh v. Lindsay, 
 115 Mo. 1, 21 S. W. 907, 37 Am. St. Rep. 374 ; Dailey v. Houston, 58 Mo. 361. 
 
 20 "The authorities are clear that, when a tort or felony of any inferior 
 degree Is committed by the wife in the presence and by the direction of her 
 husband, she is not personally liable. To exempt her from liability, both of 
 these concurrent circumstances must exist, to wit, the presence and the com- 
 mand of the husband. An offense by his direction, but not in his presence, 
 does not exempt her from liability; nor does his presence, if unaccompanied 
 by his direction." Cassin v. Delany, 38 N. Y. 178. 
 
 21 Cooley, Torts, 115; Emmons v. Stevane, 78 N. J. Law, 349, 64 Atl. 1014; 
 Kosminsky v. Goldberg, 44 Ark. 401 ; Marshall v. Oakes, 51 Me. 308 ; Brazil 
 V. Moran, 8 Minn. 286 (Gil. 205), 83 Am. Dec. 772; Carleton v. Haywood, 49 
 N. H. 314; Seller v. People, 7T N. 1. 411; Hildreth v. Camp, 41 N. J. Law, 
 306. 
 
 TiFB'.P.& D.Rel.(3d Ed.)— 7 
 
98 EIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 and, of course, this may, and generally must, be shown by the cir- 
 cumstances surrounding the commission of the act.^^ "His pres- 
 ence furnishes evidence and affords a presumption of his direction, 
 but it is not conclusive, and the truth i-pay be established by compe- 
 tent evidence." ^^ 
 
 In order that an act may be said to have been committed by the 
 wife in her husband's presence, it is not necessary that it shall have 
 been done in his sight. , It is sufficient if she was near enough to be 
 under his immediate influence and control. No exact rule, appli- 
 cable to all cases, can be laid down as to what degree of proximity 
 will constitute such presence, because this may vary with the vary- 
 ing circumstances of each case.-* The question has already been 
 considered, in treating the crimes of married women.^^ 
 
 The liability of a husband for his wife's torts, not in an}"^ way par- 
 ticipated in by him, whether committed before or after marriage, 
 is not based on any idea that the husband is a tort-feasor ; but one 
 of the chief reasons of it is because the wife cannot, at common 
 law, be sued alone. It follows, in so far as this reason is concerned, 
 that the husband's liability continues only during coverture. And it 
 is held that if not reduced to judgment before her death, or a di- 
 vorce, the cause of action ceases, as against him.^^ On his death 
 she is solely liable, and, as there is nothing to prevent her being 
 sued alone, the cause of action survives against her.^^ Of course, 
 if it is shown that the husband actually commanded his wife to com- 
 
 22 Marshall v. Oakes, 51 Me. 308; Brazil v. Moran, 8 Minn. 236 (Gil. 205), 
 83 Am. Dec. 772; Roadcap v. Sipe, 6 Grat. (Va.) 213; Simmons v. Brown, 
 
 5 R. I. 299, 73 Am. Dec. 66; Griffin v. Reynolds, IT How. 609, 15 L. Ed. 
 229; Oarleton v. Haywood, 49 N. H. 314; Handy v. Foley, 121 Mass. 259, 23 
 Am. Rep. 270 ; Miller v. Sweitzer, 22 Mich. 391 ; Cassin v. Delany, 38 N. Y. 
 178; Heckle v. Lurvey, 101 Mass. 344, 3 Am. Rep. 366; McElfresh v. Klr- 
 kendall, 36 Iowa, 224 ; Fowler v. Chichester, 26 Ohio St. 9 ; Estill v. Fort, 2 
 Dana (Ky.) 237; Henderson v. Wendler, 39 S. C. 555, 17 S. E. 851. 
 
 23 Cassin v. Delany, 38 N. Y. 178. 
 
 24 Com. V. Munsey, 112 Mass. 287. 
 
 25 Ante, p. 90, and cases there cited. 
 
 2eCooley, Torts, 115; Jag. Torts, 217; Wright v. Leonard, 11 C. B. (N 
 S.) 258, 266; Reeve, Dom. Eel. 100; Phillips v. Richardson, 4 J. J. Marsh. 
 (Ky.) 212 ; Ferguson v. Collins, 8 Ark. 241 ; Capel v. Powell, 17 C. B (N S ) 
 743; Rowing v. Manly, 49 N. Y. 192, 10 Am. Rep. 346. But see Johnson 
 V. McKeown, 1 McCord (S. C.) 578, 10 Am. Dec. 698 ; Cassin v. Delany, 38 
 
 2T Rigley V. Lee, Oro. Jac. 356; Baker v. Braslin, 16 R. I. 635, 18 Atl 1039 
 
 6 L. R. A. 718 ; Appeal of Franklin's Adm'r, 115 Pa. 534, 6 Atl. 70 2 Am St' 
 Rep. 583. 
 
§§ 39-42) TORTS OP MAKEIED WOMEN 99 
 
 mit the tort, or otherwise actually participated in its commission, 
 he is liable as an actual tort-feasor, and not merely because he is 
 her husband." It follows that he could be sued therefor after her 
 death ; the action being for his own tort, and not for hers. Fur- 
 ther than this, if a husband authorizes his wife to act for him as 
 agent, he will be liable for her acts as agent.^° 
 
 Torts Connected with Contracts 
 
 At common law, since a married woman was incapable of bind- 
 ing herself by contract, she could not be held liable for a tort when 
 this would have the effect of indirectly making her liable on con- 
 tract. For instance, it has been held that an action cannot be main- 
 tained at commoii law against a husband and wife for her false 
 and fraudulent representation that she was a widow at the time she 
 executed a bond and mortgage.^" In Fairhurst v. Liverpool Adel- 
 phi Association,*^ where it was held that a husband and wife could 
 not be sued in tort for a false and fraudulent representation by the 
 wife that she was sole at the time of signing a note. Pollock, C. B., 
 said : "A feme covert is unquestionably incapable of binding herself 
 by a contract. It is altogether void, and no action will lie against 
 her husband or herself for the breach of it. But she is undoubtedly 
 responsible for all torts committed by her during coverture, and the 
 husband must be joined as a defendant. They are liable, therefore, 
 for frauds committed by her on any person, as for any other person- 
 al wrongs. But when the fraud is directly connected with the con- 
 tract with the wife, and is the means of effecting it, and parcel of 
 the same transaction, the wife cannot be held responsible, and the 
 husband be sued for it together with the wife.*^ On the same prin- 
 ciple it has been held that a married woman, even though living 
 
 2 8 See Handy v. Foley, 121 Mass. 259, 23 Am. Rep. 270; Flesh v. Lind- 
 say, 115 Mo. 1, 21 S. W. 907, 37 Am^ St. Kep. 374. 
 2 9 Taylor v. Green, 8 Car. & P. 316. 
 
 30 Keen v. Coleman, 39 Pa. 299, 80 Am. Dec. 524. 
 
 31 9 Exch. 422, 23 Law J. Exch. 163. 
 
 32 And see Wright v. Leonard, 11 0. B. (N. S.) 258; Cooper v. Witham, 1 
 Lev. 247; Woodward v. Barnes, 46 Vt. 332, 14 Am. Rep. 626; Trust Co. v. 
 Sedgwick, 97 U. S. 304, 24 L. Ed. 954 ; Kowing v. Manly, 49 N. T. 192, 10 Am. 
 Rep. 346 ; Ferguson v. Neilson, 17 R. I. 81, 20 Atl. 229, 9 L. R. A. 155, 33 Am. 
 St. Rep. 895 ; Keen V. Hartman, 48 Pa. 497, 86 Am. Dec. 606, 88 Am. Dec. 472 ; 
 Owens V. Snodgrass, 6 Dana (Ky.) 229; Curd v. Dodds, 6 Bush (Ky.) 681. 
 For the same principle as applied to infants, see Jennings v. Rundall, 8 
 Term R. 335 ; dark, Cont. 260 ; post, p. 525. 
 
100 EIGHTS AND DUTIES INCIDENT TO COVEETUEE (Ch. 2 
 
 apart from her husband, and maintaining a separate establishment 
 with her own means, is not liable for the tort of a servant hired 
 by her; for, as she is incapable of contracting, she cannot occupy 
 the position of a master or principal, and the rule respondeat su- 
 perior therefore -cannot apply.^^ "The general principle that, for 
 the torts or frauds of the wife, an action may be sustained against 
 her and her husband, applies only to torts simpliciter, or cases 
 of pure, simple tort, and not where the substantive basis of the tort 
 -is the contract of the wife." ^* 
 
 This rule has been rendered inapplicable to some extent by the 
 statutes giving married women a power to contract.^ ^ 
 
 Effect of Modern Statutes 
 
 The common-law disabilities of a married woman, and the liability 
 of her husband for her torts, remain at this time, both in England 
 ,and in this country, except in so far as they have been modified by 
 statute. Modern statutes have been enacted, both in England and 
 in this country, removing, to a greater or less extent, the disabilities 
 of married women ; taking away from the husband rights which he 
 had at common law, and either expressly or by implication reliev- 
 ing him from liabilities imposed upon him by the common law by 
 reason of the marriage. Even if these statutes do not expressly 
 refer to the husband's liability for the torts of his wife, it is very ob- 
 vious that they must modify it to some extent. If the liability is 
 based on the right of the husband to control the conduct of his wife, 
 then to take away this right would seem clearly to take away the 
 liability, of the principle, "Cessante ratione, cessat ipsa lex." If the 
 liability is based on the fact that the wife cannot be sued without 
 joining her husband, it would seem to cease when, by statute, a mar- 
 ried woman is allowed to sue and be sued as a feme sole. If the lia- 
 bility is based on the husband's rights in the property of his wife. 
 
 33 Ferguson v. Neilson, 17 E. I. 81, 20 Atl. 229, 9 L. B. A. 155, 33 Am. St. 
 Rep. 855. But see Schmidt v. Keehn, 57 Hun, 585, 10 N. T. Supp. 267, where 
 a married woman was held liahle for the negligence of her agent in making 
 improvements on her separate property, and Flesh v. Lindsay, 115 Mo. 1, 21 S. 
 W. 907, 87 Am. St. Rep. 374, where a distinction is drawn between the terms 
 "agent" and "servant," and it is said that, though a married woman may not 
 have an agent, in regard to her fee-simple property, she may have a servant, 
 and be liable for his acts In relation to the property. 
 
 3 4 Woodward v. Barnes, 46 Vt. 832, 14 Am. Rep. 626. 
 
 3 6 See Dobbin v. Oordiner, 41 Minn. 165, 42 N. W. 870, 4 L. R. A. 333, 16 
 Am. St. Rep. 683. 
 
§§ 39-42) TORTS OF MARRIED WOMEN , 10 J 
 
 then the liability ought not to exist when these rights\a^e._ taken 
 away from him. This is only reasonable and just.^" 
 
 The statutes commonly known as the "Married Women's Acts" 
 vary so much in the different states, and the judges have differed so 
 widely in their opinions as to their effect, that no universal state- 
 ment as to a husband's liability for his wife's torts -can be made. 
 The reader must consult the statutes and decisions of his state. In 
 many of the states the courts have been very conservative — per- 
 haps too much so — in adopting innovations in the common-law doc- 
 trine. They require that the intention of the Legislature to make 
 such changes must be clearly and unambiguously expressed. Even 
 where, by statute, a wife's separate estate is liable for her torts, it 
 has been held that her husband's joint liability for her personal torts 
 still remains. In New York and a number of other -states, for in- 
 stance, a husband is still liable as at common law for slanderous 
 words spoken'by his wife, though spoken in his absence, and though 
 he in no manner participated therein; and the same is true of as- 
 sault- and battery, or any other personal tort.^' The decision in all 
 of these cases proceeds upon the ground that statutes changing the 
 common law are to be strictly construed, and the latter will be held 
 to be no further abrogated than the clear import of the language 
 used in the statutes absolutely requires, and hence that the com- 
 mon-law disabilities and liabilities incident to the relation of hus- 
 
 3 6 Martin v. Eobson, 65 111. 129, 16 Am. Rep 578. See, also, Schuler v. 
 Henry, 42 Colo. 367, 94 Pac. 360, 14 L. li. A. (N. S.) 1009, where It was said 
 that a statute which vests a married woman with the absolute dominion over 
 her property and person, and which a-athorizes her to sue and be sued as il 
 sole, etc., impliedly repeals the rule of the common law which makes a hus- 
 band liable for the torts of his wife committed during coverture, without his 
 presence, and in which he in no manner participated. In view of emanci- 
 pation of married women by Rev. St. 1909, §§ 8304-8309, indicating absence 
 of reason for old rule relating to husband's common-law liability for his 
 wife's torts, rule is no longer recognized. Claxtoii v. Pool, 197 S. W. 349, 
 I>. E. A. 1918A, 512, affirming judgment 182 Mo. App. 13, 167 S. W. 623. 
 
 37 Rowing V. Manley, 57 Barb. (N, T.) 479; Baum v. Mullen, 47 N. Y. 577; 
 Mangam v. Pecl^;, 111 N. T. 401, 18 N. E. 617; Fitzgerald v. Quann, 33 Hun, 
 652 ; Id., 109 N. Y. 441, 17 N. E. 354 ; Jackson v. Williams, 92 Ark. 486, 123 
 S. W. 751, 25i L. R. A. (N. S.) 840; Kellar v. James, 63 W. Va. 139, 59 S. 
 E. 939, 14 L. E. A. (N. S.) 1003, Cooley Oas. Persons and Domestic Relations, 
 46 ; Choen v. Porter, 66 Ind. 195 ; Fowler v. Chichester, 26 Ohio St. 9 ; Fer- . 
 guson V. Brooks, 67 Me. 251 ; McQueen v. Fulgham, 27 Tex. 463 ; Luse v- 
 Oaks, 36 Iowa. 562 ; McElfresh v. Kirkendall, Id. 224 ; Quick v. Miller, 103 
 Pa. 67. See, also, Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 L. R. 
 A. (N. S.) 1003. 
 
102 EIGHTS AND DUTIES INCIDENT TO COVEETUEE (Ch. 2 
 
 band and wife still exist, except in so far as they have been swept 
 away by express enactments.^' 
 
 In other states it is held that the statutes removing the disabil- 
 ities of a married \Toman to sue and to be sued, and taking from 
 the husband his common-law rights in her property, and to her 
 earnings, impliedly remove his common-law liability for her torts 
 committed in his absence and without his participation., even though 
 the tort has no connection with the management and control of her 
 separate property. It is held, for instance, that he is not liable for 
 slanderous words spoken by her in his absence, and without his par- 
 ticipation.'" In Illinois the statutes give a married woman the sole 
 control of her separate property and estate acquired in good faith 
 from, any person other than her husband, and the right to her own 
 earnings ; and it has been held in that state that the effect of these 
 statutes is to remove the husband's liability for the torts of his wife, 
 if he is not present when they are committed, and in no manner par- 
 ticipates in them. The court said that so long as the husband was 
 entitled to the property of the wife and to her industry, so- long 
 as he had the power to direct and control her, and thus prevent her 
 from the commission of torts, there was some reason for the rule, 
 but, as the reason had been removed, so also should the rule. A 
 "liability," it was said, "which has for its' consideration rights con- 
 ferred, should no longer exist, when the consideration has failed. 
 If the relations of husband and wife have been so changed as to 
 deprive him of all right to her property and to the control of 
 her person and her time, every principle of right would be violated, 
 to hold him still responsible for her conduct. If she is emancipat- 
 ed, he should no longer be enslaved." *" To the same effect are the 
 
 88 Common-law rule as to husband's civil liability for torts of his wife in 
 action where they are joined and charged with conspiring to commit a wrong 
 is not changed by Rev. St. 1909, § 8304, authorizing a married woman to sue 
 and be sued without joining her husband. Aronson v. Kicker, 185 Mo. App. 
 528, 172 S. W. 641. 
 
 3 9 Martin v. Eobson, 65 111. 129, 16 Am. Rep. 578; Hinski v. Stein, 68 Pa. 
 Super. Ct. 441. 
 
 10 Martin v. Robsou, supra Under the express provisions of Kurd's Rev. 
 St. 1915-16, c. 68, § 4 (Jones & A. Ann. St. 1913, par. 6141), the husband is 
 not responsible for the wife's torts except where he woTild be jointl.v re- 
 sponsible with her if the marriage did not exist. Christensen v. Johnston, 
 207 111. App. 209. But the husband will be liable if under similar circum- 
 stances he would be liable for the tort of another, as, for instance, on the 
 tiieory 'of respondeat superior. Thus in McNemar v. Cohn, 115 111. App. 81, 
 it was held that the husband was liable where the wife, acting as his agent. 
 
§§ 39-42) TORTS OF. MARRIED WOMEN 103 
 
 decisions in some of the other states. These decisions all proceed 
 on the principle of the common law, "Cessante ratione, cessat ipsa 
 lex." " 
 
 Even in those states where, as in New York, a husband is stil l 
 hel d liable as at common law for the personal torts of his wife, like 
 s lander, assault and battery, etc., it is very p ^enerally held that h is 
 liability is lirhit ed to torts of this character, and does not extend to 
 to rts committed by his wife in the management and contrnl n f htr 
 
 separate property, as whe rp shp p prmitc n nnirnnno nn 1i (?r land.^" 
 
 suffers, her cattle to stray on her neighbor's land,*=', commits a fraud 
 in" the sale o'fTTeFseparate property,^* or is guilty of any other tor- 
 tious act or omission in relation to her separate property.*^ If 
 the wife is by statute capable of managing and controlling her sepa- 
 
 was negligent in the performance of her duties, to the injury of a third per- 
 son. Under doctrine of respondeat superior, a husband is liable for negli- 
 gent operation of an automobile owned by him and driven by his wife with 
 his acquiescence and consent for business or pleasure of family. Vannett 
 V. Cole (N. D.) 170 N. W. 663. But see Killingsworth t. Keen, 89 "Wash. 
 597, 154 Pac. 1096, holding ,that under Rem. & Bal. Code, § 5929, negativing 
 liability of a husband for his wife's torts, a chauffeur, whose wife took his 
 employer's car and damaged it, is not liahle for her tortious act. A mar- 
 ried woman is not liable for a tort committed by her husband on the theory 
 of respondeat superior. Mlssio v. Williams, 329 Tenn. 504, 167 S. W. 473, L. 
 E. A. 1915A, 500. See, also, Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148. 
 
 *i Norris v. Corkill, 32 Kan. 409, 4 Pac. 862, 49 Am. Eep. 489, Cooley Cas. 
 Persons and Domestic Relations, 44 ; Berger v. Jacobs, 21 Mich. 215 ; Burt 
 V. McBain, 29 Mich. 260 ; Riccl v. Mueller, 41 Mich. 214, 2 N. W. 28 ; Schuler 
 V. Henry, 42 Colo. 367, 94 Pac. 860, 14 L. E. A. (N. S.) 1009; Gustine v. 
 Westenberger, 224 Pa. 455, 73 Atl. 913; Paddem v. McKlnney, 87 Vt. 316, 
 89 Atl. 351; Musselman v. Galligher, 32 Iowa, 383; Pancoast v. Burnell, 
 Id. 394; Mewhirter v. Hatten, 42 Iowa, 288, 20 Am. Eep. 618; Kuklence 
 V. Vocht (Pa.) 13 Atl. 198 ; Vocht v. Kuklence, 119 Pa. 365, 13 Atl. 199. 
 
 4 2 Fiske V. Bailey, 51 N. Y. 150; Quilty v. Battle, 135 N. Y. 201, 32 N. E. 
 47, 17 L. E. A. 521. 
 
 *3 Rowe V. Smith, 45 N. T. 23a 
 
 ** Baum V. Mullen, 47 N. T. 577. 
 
 *5 Ferguson v. Brooks, 67 Me. 251 ; Leros v. Parkqr, 79 W. Va. 700, 91 
 S. E. 660; Hageman v. Vanderdoes, 15 Ariz. 312, 138 Pac. 1053, L. R. A.' 
 1915iA, 491, Ann. Cas. 1915D, 1197; Boutell v. Shellabarger, 264 Mo. 70, 174 
 S. W. 384, L. R. A. 1915D, 847 ; Id., 264 Mo. 81, 174 S. W. 387 ; Harrington 
 V. Jagmetty, 83 N. J. Law, 548, S3 Atl. 880. Keeping on her premises a 
 vicious dog. Quilty v. Battle, 135 N. Y. 201, 32 N. E. 47, 17 L. E. A. 521 ; 
 Mlssio V. Williams, 129 Tenn. 504, 167 S. W. 478, L. R. A. 1915A, 500. 
 Where she is guilty of a conversion, in seizing property on which she claims 
 a lien, the husband not interfering in any way. Pealv v. Lemon, 1 Lans. (N. 
 Y.) 295. But see Wheeler & Wilson Mfg. Co. v. Heil, 115 Pa. 487, 8 Atl. 
 616, 2 Am. St. Eep. 575. 
 
104 EIGHTS AND DUTIES INCIDENT TO COVEETDEB (Ch. 2 
 
 rate property, so as to be thus liable for her torts committed in re- 
 lation thereto, she may be liable for the torts of her husband in re- 
 lation thereto, where he is acting as her agent under authority 
 from her.*° 
 
 Of course, ^the husband is solely liable for torts committed by 
 himself alone in relation to his wife's separate property, and if he 
 participates with her in the commission of any tort he is liable as a 
 joint tort-feasor. The fact, for instance, that the property on which 
 a man lives with his wife belongs to her does not render her liable 
 as a keeper and harborer of his vicious dogs, but the liability.is sole- 
 ly on him.^^ 
 
 The statutes, as has already been remarked , vary greatly in the 
 different states . In some states they are not nearly so broad as 
 in others, and in many cases, therefore, apparently conflicting deci- 
 sions may be reconciled. In some states it is expressly declared 
 by statute that a husband shall not be IJAble for the torts of his wife 
 unless he directed them, or otherwise participated therein.^* 
 
 The married women's acts do not change the rule stated on a pre- 
 ceding page, that a woman whp commits a tort in the presence of 
 her husband is presumed to have acted under his coercion, and is 
 not liable therefor unless it is affirmatively shown that she did not 
 act under coercion. Prima facie the husband is solely liable.*' 
 
 *6 Ferguson v. Brooks, 67 Me. 251 ; Rowe v. Smith, 4.5 N. Y. 230 ; Baiim v. 
 MuUeai, 47 N. Y. 577; Barber v. Keeling (Tex. Civ. App.) 204 S. W. 139; 
 Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533. A wife is not liable for 
 negligence of husband in operating her automobile for his own purposes, 
 she not being present. Brenner v. Goldstein, 184 App. Div. 268, 171 N. Y. 
 Supp. 579. 
 
 " Bundschuh v. Mayer, 81 Hun, 111, 30 N. Y. Supp. 622. And see Strouse 
 V. Leipf, 101 Ala. 433, 14 South. 667, 23 L. B. A. 622, 46 Am. St. Kep. r22; 
 McLaughlin v. Kemp, 152 Jlas-js. 7, 25 N. E. IS. 
 
 4 8 Story V. Downey, 62 Vt. 243, 20 Atl. 321; Kulilence v. Vocht (Pa.) 13 
 Atl. 198 ; Vocht v. Kuklence, 119 Pa. 365, 13 Atl. 199 ; Strouse v. Leipf, 101 
 Ala. 433, 14 South. 669, 23 L. E. A. 622, 46 Am. St. Eep. 122; Austin v. Cos, 
 .lis Mass. 58. 
 
 4 » Ante, p. 97. 
 
§ 43) TOBTS AS BETWEEN HUSBAND AND WIFE 105 
 
 TORTS AS BETWEEN HUSBAND AND WIFE 
 
 43. At common law neither spouse is liable to the other, either dur- 
 ing coverture or after divorce, for wrongful acts committed 
 during coverture ; but — 
 
 (a) The husband in such a case could sue third persons who as- 
 
 sisted his wife, but the wife could not sue third persons 
 who assisted her husband. 
 
 (b) The rule has in some states been modified by statute. 
 
 Since the unity of husband and wife at common law rendered it 
 impossible for the wife to sue the husba nd, it necessarily follow ed 
 t hat she could not sue him for a tort committed against her; as, 
 fn r in "i tnnrr, f n r n linrir r nr fnr an as sault and battery .°° Hejscas 
 amenable, if at all, to the criminal law only . No cause of action 
 arose at all in favor ot tiie wite, and it followed that she could not 
 even after a divorce, sue him for a tort committed during coverture. 
 In a Maine case °^ it was sought to sustain an action by a wife 
 against her husband, after a divorce, for an assault committed upon 
 her during coverture, on the ground that coverture merely suspends 
 the right of action, and does not destroy it, but it was held that 
 this contention was unsound. "The error in the proposition," said 
 the court, "is the supposition that a cause of action, or a right of 
 action, ever exists in such a case. There is not only no civil remedy, 
 but ther* is no civil right, during coverture, to be redressed at any 
 time. There is, therefore, nothing to be suspended. Divorce can- 
 not make that a cause of action which was not a cause of action be- 
 fore divorce. The legal character of an act of violence by husband 
 upon wife, and of the consequences that flow from it, is fixed by 
 the condition of the parties at the time the act is done. If there be 
 no cause of action at thd time, there never can be any." "^ 
 
 = « 1 Jag. Torts, 463; Abbott v. Abbott, 67 Me. 304, 24 Am. Kep. 27: Phillips 
 V. Barnet, 1 Q. B. Div. 4S6 ; Freethy v. Freetby, 42 Barb. (N. Y.) 641 ; Longen- 
 dyke v. Longendyke, 44 Barb. (N. T.) 366; Peters v. Peters, 42 Iowa, 182- 
 Main v. Main, 46 111. App. 106; Libby v. Berry, T4 Me. 286, 43 Am. Eep. 589' 
 Nickerson v. Nickerson, 65 Tex. 281 ; Schultz v. Schultz, 89 N. X. 644 ; Kujek 
 V. Goldman, 9 Misc. Kep. 34, 29 N. Y. Supp. 294 ; Abbe v. Abbe, 22 Ann. Div 
 483, 48 N. Y. Supp. 25. 
 
 51 Abbott V. Abbott, 67 Me. 304, 24 Am. Kep. 27. 
 
 62 See Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191 
 116 Am. St. Rep. 387. And see Phillips v. Barnet, 1 Q. B. Div. 436. 
 
106 RIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 Nor can a woman, either before or after divorce, maintain an 
 action against persons who assisted her husband to commit a tort 
 against her, like assault and battery, for instance, during coverture. 
 I Such an action could only be riiaintained, if at all, during cover- 
 ture, in the name of both the husband and wife ; and as he could 
 not maintain it, no cause of action arises in her favor.''' 
 
 The same principle will prevent an action by a husband, either 
 during coverture or after divorce, against his. wife, for her wrong- 
 ful acts during coverture. It would not, however, prevent the 
 husband from suing third persons who assisted the wife, and he 
 could bring such an action during coverture as well as after a di- 
 vorce. 
 
 Effect of Modern Statutes 
 
 In some states it has been held that the statutes removing the 
 disabilities of married women have so changed the common-law 
 rule as to authorize a wife to maintain an action against her hus- 
 band for a personal tort; °*but in other states it is held that these 
 statutes do not necessarily give the wife the right to sue her hus- 
 band for personal torts. ^^ Statutes giving a married woman the 
 
 5 8 Abbott V. AW)ott, 67 Me. 304, 24 Am. Eep. 27. 
 
 54 Peters v. Peters, 156 Cal. 32, 103 Pac. 219, 23 L. R. A. (N. S.) 699; 
 . Brown v. Brown, 88 Conn. 42, 89 Atl. 889, 52 L. R. A. (N. S.) 185, Ann. Gas. 
 1915D, 70 ; GHman v. Gilman, 78 N. H. 4, 95 Atl. 657, L. R. A. 1916B, 907 ; 
 Fiedler v. Fiedler, 42 OM. 124, 140 Pac. 1022, 52 L. R. A. (N. S.) 189 ; John- 
 son V. Jolinson, 201 Ala. 41, 77 South. 335i, 6 A. L. R. 1031. Under Acts 
 lirk. 1915, p. 684, removing the disabilities of married women, the represen- 
 tatives 0^ a married woman may jnaintaln an action against her husband 
 for wrongful death under Kirby's Dig. § 6289. Fitzpatrick v. Owens, 124 
 Arji. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Gas. 1918G, 
 772. 
 
 5 5 Peters v. Peters, 42 Iowa, 182; Rogers v. Rogers, 265 Mo. 200, 177 S. 
 W. 382; Thompson v. Thompson, 218 U. S. 611, 31 Sup. Gt. Ill, 54 L. Ed. 
 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Gas. 921, affirming 31 App. D. C. 557, 
 14 Ann. Gas. 879 ; Butterfleld v. Butterfleld, 195 Mo. App. 37, 187 S. W. 
 295, 197 S. W. 374 ; Lilliankamp v. Rippetoe, 133 Tenn. 57, 179 S. W. 628, L. 
 B. A. 1916B, 881, Ann. Gas. 1917G, 9Q1; Wilson v. Brown (Tex. Oiv. App.) 
 154 S. W. 322. Rem. & Bal. Code, § 5926, which abolishes as to a wife all 
 civil disabilities not imposed or recognized as existing as to the hus- 
 band, negatives any intention to emancipate the wife to a greater degree 
 than the husband ; and, as the husband had neither a common-law nor statu- 
 tory right to sue the wife for a tort committed during coverture, the stat- 
 ute confers no such right upon her. Sehultz v. Ghristopher, 65 Wash. 496, 
 118 Pac. 629, 38 L. R. A. (N. S.) 780. Under Code 1904, § 2286a (Acts l899- 
 1900, c. 1139), a wife cannot sue her husband for damages for assault, nor 
 can her personal representative sue the husband for damages for her death. 
 
§ 44) TORTS AGAINST MARRIED 'WOMEN 107 
 
 power to acquire, hold, and dispose of property free from the con- 
 trol of her husband have been construed as giving a married 
 woman a right of action for torts committed by her husband upon 
 her separate property, as trespass or conversion. ^^ In some of the 
 cases, however, the courts have denied this construction. It was 
 said by the Pennsylvania court, in reference to a separate property 
 act: "As the only object of the act was to afford a protection to the 
 estates of married women, we may assume that it was not intend- 
 ed that she should so fully own her separate property as to impair 
 the intimacy of the marriage relation. It was not intended to de- 
 clare that her property should be so separate that her husband could 
 be guilty of larceny of it, or liable in trespass or trover for break- 
 ing a dish or a chair, or using it without her consent." °' 
 
 TORTS AGAINST MARRIED WOMEN 
 
 44. When a tort is committed against a married woman, damages 
 may be recovered. 
 
 (a) For the injury to the> wife — as for her mental and physical 
 
 suffering. 
 (1} At common law in a joint action bv husband and wife, 
 
 and only in such an action, and the cause of action 
 
 abates on the death of the wife. 
 (2) B y statute, in most states, by the wjfp sning- alonp 
 
 (b) For the injury to the husband — as for the loss of the wife's 
 
 society and services, and for his disbursements — in an ac- 
 tion by the husband suing alone, at common law, and in 
 such an action only. By statute in some states, such dam- 
 ages can be recovered in the joint action. This cause of 
 action does not abate on the wife's death. 
 
 When a tort is committed against a married woman, two actions 
 may lie— ^one for the injury to the wife and one for the injurv to t he 
 
 Keister's Adm'r v. Keister's Ex'rs, 123 Va. 157, 96 S. E. 315, 1 A. L.'R. 439. 
 Under Civ. Code Ga. 1910, §§ 2{)93, 2994, 3652, a wife cannot recover of a 
 husband, -with virhom she is living in laveful wedlock, for a tort arising fronj 
 his negligent operation of an automobile in which they were 'riding at time 
 of injury. Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25. 
 
 se Mason v. Mason, 66 Hun, 386, 21 N. T. Supp. 306; Ryerson v. Byerson, 
 55 Hun, 611, 8 N. X. Supp. 738; Sinith v. Smith, 20 K. I. 556, 40 Atl. 417; 
 Eaom V. Eshom, 18 Ariz. 170, 157 Pac. 974. 
 
 B7 Walker v. Kearny, 36 Pa. 410. 
 
108 EIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 husband by reas on of his loss of her services and society,. .o ii-bAt-Fea- 
 son of being put to expense.'^' 
 
 InjiM-y to the Wife — Joint- Action 
 
 At common law, as will presently be explained more at length, 
 marriage confers upon the husband an absolute right to all of his 
 wife's personal j-roperty in possession, and to her choses in action 
 if he reduces them to possession during coverture.^" Claims of the 
 wife for damages growing out of torts committed by third persons 
 against her person or character, such as assault and battery, neg- 
 ligent personal injury, libel, slander, etc., are choses in action within 
 this rule.^" At common law an action for such injuries must be 
 brought in the name of the husband and wife jointly; during cover- 
 ture neither can sue alone. *^ The damages recovered in such an 
 action are for the injury to the wife, and not for any injury to the 
 husband ; but they belong to the husband, when recovered.*^ For 
 this reason it has been held that he may release or compromise the 
 claim. If the husband dies pending the action,, it does not abate, 
 but may proceed to judgment in the name of the wife alone; and, 
 if the husband dies before commencing an. action, the wife may 
 enforce the claim by an action in her own name.°^ On the death of 
 the wife the cause of action ceases, and the husband therefore 
 cannot aftei;wards commence an action in his own name, nor con- 
 tinue with an action which has already been commenced.®* 
 
 5 8 Chicago & M. Electric Ey. Co. v. Krempel, 116 111. App. 253; Mageau v. 
 Great Northern Ky. Co., 103 Minn. 290, 115 N. W. 651, 946, 15 L. R. A. (N. S.) 
 511, 14 Ann. Gas. 551; DufCee v. Boston Elevated Ry. Co., 191 Mass. 563, 
 77 N. E. 1036; Thompson v. Metropolitan St. Ry. Co., 135 Mo. 217, 36 S. 
 W. 625. 
 
 5 9 Post, pp. 128, 131. 
 
 eo Anderson v. Anderson, 11 Bush (Ky.) 327. 
 
 81 Cooley, Torts, 227; Dengate v. Gardiner, 4 Mees. & W. 6; Berger v. 
 Jacobs, 21 Mich. 215; Michigan Cent. R. Co. v. Coleman, 28 Mich. 441 
 Laughlin v. Eaton, 54 Me. 156; Hooper v. Haskell, 56 Me. 251; Saltmarsh 
 V. Candia, 51 N. H. 71; Harper v. Pinkston, 112 N. C. 293, 17 S. E. 161 
 Rogers v. Smith, 17 Ind. 823, 79 Am. Dec. 483 ; Smith v. City of St. Josephi 
 55 Mo. 456, 17 Am. Rep. 660; King v. Thompson, 87 Pa. 365, 30 Am. Rep, 
 364. Refusal of the husband to bring the action does not entitle the wife to 
 sue alone. Rice v. Railroad Co., 8 Tex. Civ. App. 130, 27 S. W. 921. 
 ■ 82 Dengate v. Gardiner, 4 Mees. & W. 6; Meese v. City of Fond du Lac 
 48 Wis. 323, 4 N. W. 406. 
 
 3 Newton v. Hatter, 2 Ld. Raym. 1208; Schouler, Dom. Rel. § 77. 
 
 eiBac. Abr., "Baron and Feme," .k, 60; Meese v. City of Fond du Lac 48 
 Wis. 323, 4 N. W. 406; Purple v. Railroad Co., 11 N. Y. Super. Ct. 74- Hodg- 
 
§ 44) TORTS AGAINST MARRIED WOMEN 109 
 
 The recovery in the joint action is confined to damages for the in- 
 jury to the wife, such as her mental and physical suffering; and 
 damages to the husband, as the expenses of medical attendance, 
 loss of wages, services, etc., in the case of personal injuries to 
 the wife, must be recovered by the husband suing alone. °^ 
 
 Under Modern Statutes 
 
 In most states the common-law rules with regard to actions for 
 torts against married women have been modified by statute ; and it 
 is very generally provided that a married woman may sue alone for 
 inj uries to her person or c har acter, and recover her damages for 
 her own benefit."" Such statutes are not retroactive, so as to af- 
 
 man v. Railroad Corp., 7 How. Prac. (N. Y.) 492 ; Butler v. Railroad Co., 22 
 Barb. (N. T.) 110 ; Meech v. Stoner, 19 N. T. 26-. 
 
 6 5 Dengate v. Gardiner, 4 Mees. & W. 6; Mee.se v. City of Fond du Lac, 48 
 Wis. 323, 4 N. W. 406. But by statute in some states all damages may be 
 recovered in tlie one action. See post, p. 112. 
 
 «« Stevenson v. Morris, 37 Ohio St. 10, 41 Am. Rep. 481 ; Hey v. Prime, 197 
 Mass. 474, 84 N. B. 141, 17 L. R. A. (N. S.) 570 ; McGovern v. Internrban Ry. 
 Co., 136 Iowa, 13, 111 N. W. 412, 13 L. R. A. (N. S.) 476, 125 Am. St. Rep. 
 215; Engle v. Simmons, 148 Ala. 92, 41 South. 1023, 7 L. R. A. (N. S.) 96, 121 
 Am. St. Rep. 59, 12 Ann. Cas. 740; Times-Democrat Pub. Co. v. Mozee, 136 
 Fed. 761, 69 C. C. A. 418; Wtorez v. Des Moines City Ry. Co., 175 Iowa, 1, 
 156 N. W. 867; Matthew v. Railroad Co^ 63 Cal. 450; Michigan Cent. 
 E. Co. V. Coleman, 28 Mich. 440 ; City of Bloomington v. Annett, 16 111. App. 
 199; Chicago, B. & Q. R. Co. v. Dunn, 52 111. 260, 4 Am. Rep. 600; Hen- 
 nies V. Vogel, 66 111. 401; Pavlovski v. Thornton, 89 6a. 829, 15 S. E; 822; 
 Fife V. City of Oshkosh, 89 Wis. 510, 62 N. W. 541 ; City of Chadron v. Glover, 
 43 Neb. 732, 62 N. W. 62; Barnett v. Leonard, 66 Ind. 422; Sims v. Sims, 
 79 N. J. Law, 577, 76 Atl. 10&3, 29 L. E. A. (N. S.) 842, Cooley Cas. Persons 
 and Domestic Relations; Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 
 334, 172 S. W. 885; Engle v. Simmons, 148 Ala. 92, 41 South. 1023, 7 L. 
 R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann: Cas. 746 ; McGovem v. Inter- 
 Urban Ry. Co., 136 Iowa, 13, 111 N. W. 412, 13 L. R. A. (N. S.) 476, 125 
 Am. St. Rep. 215 ; Kovacs v. Mayoras, 175 Mich. 582, 141 N. W. 662 ; Cas- 
 teel V. Brooks, 46 Okl. 189, 148 Pac. 158 ; Coulter v. Hermitage Cotton Mills 
 (S. C.) 98 S. E. 846. In some states the wife must sue alone under the statute. 
 Michigan Cent. R. Co. v. Coleman, supra ; Story v. Downey, 62 Vt. 243, 20 
 Atl. 321; Foot v. Card, 58 Conn. 1, 18 Atl. 1027, 6 L. R. A. 829, 18 Am. St. 
 Rep. 258; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. 
 In others the statute does not prevent, but merely renders unnecessary, the 
 ioinder of the husband. East Tennessee, V. & G. R. Co. v. Cox, 57 Ga. 252 ; 
 Davis V. Public Service Corp., 77 N. J. Law, 275, 72 Atl. 82 ; Id., 72 Atl. 83 ; 
 Warth V. Jackson County Court, 71 W. Va. 184, 76 S. E. 420; Normile v. 
 Wheeling Traction Co., 57 W. Va. 132, 49 S. E. 1030, 68 L. R. A. 901. The 
 husband must join in the action. Basler v. Sacramento Gas & Electric Co., 
 158 Cal. 514, 111 Pac. 530, Ann. Cas. 1912A, 642; Lindsay v. Oregon Short 
 Line R. Co., 13 Idaho, 477, 90 Pac. 984, 12 L. R. A. (N. S.) 184. The wife 
 may recover medical expenses paid or contracted for by her in consequence 
 
 1 
 
110 RIGHTS AND DUTIES INCIDENT TO COVBRTTJRB (Ch. 2 
 
 feet a right of aetion which had already vested in the husband prior 
 to the passage thereof." In some states the statutes only allow 
 her to sue in her own name in relation to her separate property. 
 She can, under these statutes, sUe for a trespass u^on, or a con- 
 version of, her separate property; "* but for injuries to her person 
 or character she can only sue jointly, as at common law.^** 
 
 Injury to Husband — Action by Husband Alone 
 
 In addition to this joint action for torts committed against his 
 wife, the husband may sue alone, "per quod consortium amisit," as 
 it is expressed, for injuries to her which render her less able to per- 
 form services. In such an action he can recover his own damages, 
 and such damages only — as, in case, of personal injuries, for the 
 loss of her society and services, moneys necessarily expended by 
 him for care and attendance, and other incidental expense?.'"' 
 
 6f the injury, though the husband is ordinarily chargeable therefor. Ashbey 
 V. Elsberry & N. H. Gravel Koad Co., Ill Mo. App. 79, 89 S. W. 957 ; Indian- 
 apolis Traction & Terminal Co. v. Kidd, 167 Ind. 402, 79 N. E. 347, 7 L. R. A. 
 (N. S.) 143, 10 Ann. Gas. 942. Under Vernon's Sayles' Ann. Civ. St. 1914, 
 art. 1839, providing that the husband may sue for recovery of any separate 
 property of the v^ife, he may sue for personal injuries to her, recovery, there- 
 for being, by Acts 34th Leg. c. 54, declared her separate property. Texar- 
 kana Telephone Co. v. Burge (Tex. Civ. App.) 192 S. W. 807. 
 
 7 St. Louis Southwestern Ry. Co. v. Purcell, 135 Fed. 499, 68 C. C. A. 211: 
 Snyder v. Jett, 138 Tenn. 211, 197 S. W. 488. The marriage of a woman after 
 receiving an injury in a railroad wreck does not divest her of the right to 
 recover damages for the total or partial loss of her earning capacity. Georgia 
 Northern Ry. Co. v. Sharp, 19 Ga. App. 503, 91 S. E. 1045. 
 
 8 Duncan v. Duncan, 6 Cal. App. 404, 92 Pac. 310; Bondy v. American 
 Transfer Co., 15 Cal. App. 746, 115 Pac. 965; Cox v. St. Louis, M. & S. E. 
 Ry. Co., 123 Mo. App. 356, 100 S. W. 1096 ; Willis v. J. G. White & Co., 150 N. 
 C. 199, 63 S. E. 942, 134 Am. St. Rep. 906. 
 
 6 9 Lamb v. Harbaugh, 105 Cal. 680, 39 Pac. 56; Lindsay v. Oregon Short 
 Line R. Co., 13 Idaho, 477, 90 Pac. 984,' 12 L. R. A. (n! S.) 184. But see Dun- 
 can V. Duncan, 6 Cal. App. 404, 92 Pac. 310, holding that a married woman 
 deserted by her husband may sue alone to recover damages for her personal 
 injuries, although such damages when recovered are community property. 
 And compare Schmelzei; v. Chester Traction Co., 218 Pa. 29, 66 Atl. 1005; 
 Saunders Transfer Co. v. Underwood (Fla.) 81 South. 105. 
 
 "^ 3 Bl. Comin. 140; Moore v. Bullock, Cro. Jac. 501; Cooley. Torts, 226; 
 1 Jag. Torts, 469; Hyatt v. Adams, 16 Mich. 180; Hey v. Prime, 197 Mass. 
 474, 84 N. E. 141, 17 L. R. A. (N. S.) 570; Duffee v. Boston Mevated Ry! 
 Co., 191 Mass. 563, 77 N. E. 1036 ; Birmingham Southern Ry. Cto. v. Lintner, 
 141 Ala. 420, 38 South. 363, 109 Am. St. Rep. 40, 3 Ann. Cas. 461 ; ' Booth v! 
 Manchester St. Ry., 73 N. H. 529, 63 Atl. 578; Lyons v. New York City 
 Ry. Co., 49 Misc. Rep. 517, 97 N. T. Supp. 1033 ; Wright v. City of Omaha, 
 78 Neb. 124, 110 N. W. 754; Berger v. Jacobs, 21 Mich. 215; Mevvhirter 
 v. Hatten, 42 Iowa, 288, 20 Am. Rep. 618; Matteson v. Railroad Co., 35 
 
§ 44) TORTS AGAINST MARRIED WOMEN 111 
 
 The loss of services is not to be tneasiired as if she were a mere 
 servant ; but the frugality, industry, usefulness, and attention of the 
 wife and mother are elements to be taken into consideration/^ So, 
 too, the damages that may be recovered are not confined to the 
 value of her services in the household, but may include the value 
 of her services rendered in her husband's business ; ''^ and if the in- 
 juries are permanent the damages may include a fair compensation 
 for her future diminished capacity. ''' He cannot, in such an action, 
 
 N. T. 487, 91 Am. Dec. 67; Hoard v. Peck, 56 Barb. (N. T.) 2^02; Rogers v. 
 Smith, 17 Ind. 323, 79 Am. Dec. 483 ; People's Home Telephone Co. v. Cockrum, 
 182 Ala. 547, 62 South. 86; Little Rock Gas & Fuel Co. v. Coppedge, 116 
 Ark. 334, 172 S. W. 885; Moody v. Southern Pac. Co., 167 Cal. 786, 141 Pac. 
 388; Indianapolis & M. Rapid Transit Co. v. Reeder, 51 Ind. App. 533, 100 
 N. B. 101; Kimberly v. Howland, 143 N. C. 398, 55 S. E. 778, 7 L. R. A. 
 (N. S.) 5451; Bailey v. Long, 172 N. C. 661, 90 S. E. 809, L. R. A. 1917B, 708; 
 Flintjer v. Kansas City (Mo. App.) 204 S. W. 951; Morrison v. Clark, 196 
 Ala. 670, 72 South. 305; Smith v, City of St. Joseph, 55 Mo. 456, 17 Am. 
 Rep. 660 ; King v. Thompson, 87 Pa. 365, 30 Am. Rep. 364 ; Barnes v. 
 Martin, 15 Wis. 240, 82 Am. Dec. 670. Thus an action may he maintained ' 
 by the husband per quod consortium amisit, under this rule, for the fol- 
 lowing injuries, among others, against the wife: Assault and battery. Ber- 
 ger v. Jacobs, 21 Mich. 215. Sale to her of a drug like laudanum, opium, 
 or morphine, which the seller knows she is in the habit of using to excess. 
 Hoard v. Peck, 56 Barb. (N. Y.) 292. Malpractice by physician or surgeon. 
 Hyatt V. Adams, 16 Mich. 180; Mewhirter v. Hatten, 42 Iowa, 288, 20 Am. 
 Rep. 618; Mowry v. Cljaney, 43 Iowa, 609. Negligence resulting in per- 
 sonal injuries. Matteson v. Railroad Co., 35 ' N. Y. 487^ 91 ' Am. Dec. 67 ; 
 Smith V. City of St. Joseph, 55 Mo. 456, 17 Am. Rep. 660 ; Hopkins v. Rail- 
 road Co., 36 N. H. 9, 72 Am. Dec. 287; Fuller v.- Railroad Co., 21 Conn. 
 557. Libel or slander of wife, where there is a loss of services or society 
 to the husband, as where she is prevented from obtaining employment, the 
 wages of which would go to the husband. Dengate v. Gardiner, 4 Moes. 
 & W. 6. And see Van Vacter v. McKillip, 7 Blackf. (Ind.) 578. Malicious 
 prosecution. Rogers v. Smith. 17 Ind. 323, 79 Am. Dec. 483. The enabling 
 statute does not abriflge husband's right of consortium of wife and accom- 
 panying right to sue for loss thereof through her personal iijjury by negli- 
 gence of another. Filing v. Blake-McFall Co., 85 Qr. 91, 166 Pac. 57 ; 
 Louisville & N. R. Co. v. Kinman, 182 Ky. 597, 206 S. W. 880; Guevin v. Man-' 
 Chester St. Ry., 78 N. H. 289", 99 Atl. 298, L. R. A. 1317C, 410. 
 
 71 Pennsylvania R. Co. v. Goodman, 62 Pa. 329. As to the measure of dam- 
 ages generally, see note, 48 Am. Dec. 620, 621. 
 
 '2 Georgia R. & Banking Co. v. Tice, 124 Ga. 450, 52 S. E. 916, 4 Ann. Cas. 
 20O; Standen v. Pennsylvania R. Co., 214 Pa. 189, 63 Atl. 467, 6 Ann. Cas. 
 408; Citizens' St. Ry. Co. v. Twiname, 121 Ind. 375, 23 N. E. 159, 7 L. R. 
 A. 352 ; Blair v. Chicago & A. R. Co., 89 Mo. 334, 1 S. W. 367. But see Kirk- 
 patrick v. Metropolitan St. Ry. Co., 129 Mo. App. 524, 107 S. W. 1025. 
 
 73 Kimberley v. Howland, 143 N. 0. 398, 55 S. E. 778, 7 L. R. A. (N. S.) 
 545; Kirkpatrick v. Metropolitan St. Ry. Co., 129 Mo. App. 524, 107 S. TV' 
 1025. 
 
112 EIGHTS AND DUTIES INCIDENT TO COVEETUEB (Ch. 2 
 
 recover for the mental 'Or physical suffering of his wife/* Damages 
 for injuries personal to the wife must be recovered in the joint ac- 
 tion, and damages for injuries to the husband must be recovered 
 in an action by the husband alone." In some states this has been 
 changed by statute, and all damages, whether to the wife or to the 
 husband, may be recovered in a joint, action.^' The death of the 
 wife either before or during an action by the husband for his dam- 
 ages for loss of services, expenses, etc., will not defeat the action. 
 In case of, injuries resulting in his wife's death, the husband can- 
 not recover at common law for the loss of society or services result- 
 ing from her death, but only for the loss between the injuries and 
 her death.'''' Under the statutes, however, giving a right of action, 
 where a death is caused by the wrongful act of another, the hus- 
 band, when a beneficiary under the statute, may recover for the loss 
 of services resulting from his wife's death. '^ 
 
 Personal Injuries to Husband — No Right of Action in Wife 
 
 In the case of personal injuries to the husband it is, the almost 
 universal rule that the wife has no right of action against the per- 
 son causing the injury for loss or damages she may have sustamed 
 because of the impairment of h i s earning rapa city or loss of cori - 
 sortium.''" 
 
 T* Hooper v. Haskell, 56 Me. 251; Hyatt v. Adams, 16 Mich. 180; Chicago 
 & M. Electric Ry. Co. v. Krempel, 116 111. App. 253. 
 
 7 See the cases cited above. And see, particularly, Dengate v. Gardiner, 4 
 Mees. & W. 6; Fuller v. Naugatuck E. Co., 21 Conn. 557; Barnes v. Martin, 
 15 Wis. 240, 82 Am.' Dec. 670 ; Kavanaugh v. City of Janesville, 24 Wis. 618 ; 
 King V. Thompson, 87 Pa. 365, 30 Am. Kep. .364. 
 
 7 0Meese v. City of Fond du Lac, 48 Wis. 323, 4 .N. W. 406; Standen v. 
 Pennsylvania R. Co., 214 Pa. 189, 63 Atl. 467, 6 Ann. Cas. 408. By ex- 
 press provision of Code Civ. Proc. § 427, subd. 8, the husband and wife may 
 incorporate in one cause of ^ action a statement of the damages sustained by 
 the wife on account of personal injuries, and a statement of the consequential 
 damages suffered by the husband. Meek v. Pacific Electric Ey. Co., 175 
 Cal. 53, 164 Pac. 1117. 
 
 'tBaker v. Bolton, 1 Camp. 493; Green v. Eailroad Co., 2S Barb. (N. T.) 
 9; Hyatt v. Adams, 16 Mich. 180; Long v. Morrison, 14 Ind. 595, 77 Am. 
 Dec. 72; Nixon v. Ludlam, 50 111. App. 273. 
 
 '8 Eaihvay Co. v. Whitton's Adm'r, 13 Wall. 270, 20 L. Ed. 571 ; Pennsyl- 
 vania E. Co. V. Goodman, 62 Pa. g29; Delaware, Ij. & W. R. Co. v Jones 128 
 Pa. 308, IS Atl. 330. 
 
 ' Glenn v. Western Union Telegraph Co., 1 Ga. App. 821, 58 S. E. 83 ; 
 Patelski v. Snyder, 179 IlL -App. 24; Brown v. Kistleman, 177 Ind. 692 98 
 N. E. 631, 40 L. E. A. (N. S.) 236 ; FenefC v. New York Cent. & H r' E 
 Co., 203 Mass. 278, 89 N. B. 436, 24 L. E. A. (N. S.) 1024, 133 Am. St. Eep. 
 291; Stout v. Kansas City Terminal Ry. Co., 172 Mo. App. 113, 157 s. W. 
 
§§ 45-46) ENTICING, ETC., OB ALIENATION OF AFFECTION 113 
 
 ACTIONS FOR ENTICING, HARBORING, OR ALIENA- 
 TION OF AFFECTION 
 
 45. A husband has a right of action for damages against any one 
 
 who entices away or harbors his wife, or who a ljenates-her 
 affection s, though there is no enticing away, 
 
 EXCEPTIONS — (a) A person who harbors a wife, not from 
 improper motives, but from motives of humanity, a s where 
 she has been forced to leave her husband from fear of 
 bodily harm, is not liable. 
 
 (b) Parents are not liable for advising a daughter to leave he r 
 
 husband, or for harboring her, where they act from prope r 
 
 ■ motives ; and, in this class^ of cases, proper motives wil l be 
 
 presumed untti-tiie contr-arj^ appears. The same rule has 
 
 been applied to the case of parent and son. 
 
 46. In mostj ^but not all, jurisdictions, a wife has a right of action 
 
 against one who entices away, or alienates the affections 
 of, her husband ; at least, where her disabilit y to sue alone 
 jias been re moved bv statute. According to the weight of 
 op inion, the right exists even at common l aw. 
 
 Action by Husband 
 
 Since a husband is entitled to his wife's society and services, he 
 has a right__of action against one who alienates her affections from 
 him, or who deprives him of her society and services by enticing 
 her to leave him, or by harboring her.*" It is not necessary to the 
 
 1019; Kosciolek v. Portlana Ey., Light & Power Co., 81 Or. 517, 160 Pac. 
 132 ; Emerson v. Taylor, 133 Md. 192, 104 Atl. 538, 5 A. L. R. 1045 ; Smith 
 V. Nicholas Bldg. Co., 93 Ohio. St. 101, 112 N. B. 204, L. R. A. 1916E, 700, 
 Ann. -C^s. 191SD, 206. But see Plandermeyer v. Cooper, 85 Ohio St. 327, 
 98 N. E. 102, 40 L. R. A. (N. S.) 360, Ann. Cas. 1913A, 983, holding that a per- 
 son who knowing that a husband by constant use of morpliine is weakened 
 in body and mind, after repeated protests of the wife, continues to sell mor- 
 phine to the husband until his mind is destroyed and it becomes necessary 
 to confine him in an asylum, Is liable to the wife in damages. To the same 
 efCect, see Moberg v. Scott, 38 S. D.. 422, 161 N. W. 998, L. R. A. 19170, 732. 
 80 1 Jag. Torts, 466; Winsmore v. Greenbank, Willes, 577; Smith v. Kaye, 
 20 Times Law R. 261 ; Hutcheson v. Peck, 5 Johns. (N. Y.) 196 ; Rinehart 
 V. Bills, 82 Mo. 534, 52 Am. Rep. 385 ; Modisett v. McPike, 74 Mo. 636 ; Had- 
 ley V. Heywood, 121 Mass. 236; Gilchrist v. Bale, 8 Watts (Pa.) 355, 34 
 Am. Dec. 469 ; Barbee v. Armstead, 32 N. C. 530, 51 Am. Dec. 404 ; Higham 
 V. Vanosdol, 101 Ind. 161; Rudd v. Rounds, 64 Vt."432, 25 Atl. 438; Tasker 
 V. Stanley, 153 Mass. 148, 26 N. E. 417, 10 ,L. R. A. 468; Heermance v. 
 
 TIIT.P.& D.Rei,.(3d Bd.)— 8 
 
114 RIGHTS AND DUTIES INCIDENT TO COVERTURE , (Ch. 2 
 
 husband's cause of action that the wife shall have been enticed away 
 from him. An action will lie for alienation of her affections, al- 
 though she has not left his house, and he has suffered no pecunia ry 
 loss. "It is perhaps true tb,at the theory of such an action was 
 _ ofiginally the loss of services^ for it was presumed that by the se- 
 duction or alienation the wife's services were rendered less valu- 
 able. But whatever may have been the principle, originally, upon 
 which this class of actions was maintained, it is certain that the 
 weight of modern authority bases the action on the loss of the c on- 
 sortium : that is, the society, cor npanionshig , conju gal affecti ons, 
 fellowship, and assistance. The suit is not regarded in the nature 
 of an action by a master for the loss of. the services of his servant, 
 and it is not necessary that there should be any pecuniary, loss 
 whatever." *^ 
 
 The husband's right of action in this class of cases is not defeat- 
 ed by showing that he and his wife did not live happily together.*^ 
 
 James, 47 Barb. (N. Y.) 120; Smith v. Rice, 178 Iowa, 673, 160 N. W. 6; Bo- 
 land V. Stanley, 88 Ark. 562, 115 S. W. 163,^129 Am. St. Rep. 114; Francis 
 V. Outlaw, 127 Md. 315, 96 Atl. 517 ; Huot v. Wise, 27 Minn. 68, 6 N. W. 425 ; 
 Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Rep. 843. A valid com- 
 mon-law marriage will entitle a party thereto to maintain a suit for aliena- 
 tion of affections as in the case of a statutory .marriage. Butterfield v. 
 Ennis, 193 Mo. App. 638, 186 S. W. 1173. The right to recover damages 
 for the alienation of a wife's affections does rfot have to rest upon aliena- 
 tion, which culminates in divorce. Eklund v. Hackett, 106 Wash. 287, 179 
 Pac. 803. It is not necessary, to recover for alienation of a wife's affections, 
 that her debauchment be shown. Linden v. McClintock (Mo. App.) 187 S. W. 
 82; Ireland v. Ward, 51 Or. 102, 93 Pac. 932. 
 
 ^1 Adams v. Main, 3 Ind. App. 232, 29 N. B. 792, 50 Am. St. Rep. 266; 
 Dodge V. Rush, 28 App. D. C. 149, 8 Ann. Gas. 671; Heermance v. James, 
 47 Barb. (N. Y.) 120; Rinehart v. Bills, 82 Mo. 534, 52 Am. Rep. 385; Big- 
 aouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Sikes v. Tippins, 85 Ga. 
 231, 11 S. E. 662 ; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 
 553. The gist of the action is not the loss of assistance; but is the loss 
 of consortium, imder which term is included the person, affection, assistance, 
 and aid of the spouse. McGregor v. McGregor (Ky.) 115 S. W. 802 ; Jenness 
 V. Simpson, 84 Vt. 127, 78 Atl. 886. 
 
 8 2 Bailey v. Kennedy, 148 Iowa, 715, 126 N. W. 181; Philpott v. Kirk- 
 patrick, 171 Mich. 495, 137 N. W. 232. A. defendant in a suit for alienation 
 of affections will not be exonerated merely because plaintiff's husband is 
 more blamable than defendant. Rott v. Goehring, 33 N. D. 413, 157 N- W 
 294, L. R. A. 1916E, 1086, Ann. Gas. 1918A, 643. While the husband's neg- 
 lect of his wife or even his adultery would not alone justify another in 
 enticing her away, yet, if he had thereby already lost her entire affection, 
 there could be no recovery. Smith v. Rice, 178 Iowa, 673, 160 N W e' 
 But see Miller v. Pearce, 86 Vt. 322, 85 Atl. 620, 43 L. R. A. (N. S ) 832 
 
§§ 45-46) ENTICING, ETC., OK ALIENATION OF AFFECTION 115 
 
 But if, on account of their unhappy relations, the wife's comfort and 
 society are /of less moment to the husband, the state of their re- 
 lations may be shown in mitigation of damages.'' Such evidence, 
 however, must be confined to the time prior to her relations with 
 the defendant.'* 
 
 In these cases, whether there was malice or an improper motive 
 is always a material consideration.'" Thus, where a woman is 
 forced to leave her husband from fear of bodily harm, or other 
 sufficient cause, no action will lie against one who receives her 
 from motives of humanity.'" The grounds that will be sufficient to 
 justify a stranger in interfering, and harboring another's wife, must 
 be extreme. For instance, it has been held that ill treatment, in 
 order to justify a person, not a near relative, in harboring another's 
 wife to secure her from such treatment by her husband, must be of 
 so cruel a character as to endanger her personal safety, and to force 
 her to remain away from her husband, and the burden of proving 
 that it is so is on such party. '^ 
 
 83 Willis V. Bernard, 8 Bing. 376; Morris v. Warwick, 42 Wash. 480, 85 
 Pae. 42, 7 Ann. Cas. 382 ; Humphrey v. Pope, 1 Cal. App. 374, 82 Pac. 223 ; 
 Palmer v. Crook, 7 Gray (Mass.) 418; Hadley v. Heywood, 121 Mass. 236; 
 Holtz V. Dick, 42 Ohio St. 23, 51 Am. Eep. 791; Gilchrist v. Bale, 8 Watts 
 (Pa.) 355, 34 Am. Dec. 469 ; Bailey v. Bailey, 94 Iowa, 598, 63 N. W. 341. 
 
 84 Fratini v. Caslini, 66 Vt. 273, 29 Atl. 252, 44 Am. St. Eep. 843. 
 
 86 The motive with which the defendant acted is a controlling element in 
 an action for alienating affections. Ellsworth v. Shimer, TL ilisc. Rep. 576, 
 128 N. Y. Supp. 883. Malice is the gist of the cause of action for alienating 
 affections. Hostetter v. Green, 150 Ky. 551, 150 S. W. 652. In an action for 
 alienation of a wife's affections, the term "malice" does not necessarily 
 mean that which must proceed from a spiteful, malignant, or revengeful 
 disposition, but, if the conduct was unjustifiable and actually caused the 
 injury, malice in law will be implied. Boland v. Stanley, 88 Ark. 562, 115 
 S. W. 163, 129 Am. St. Rep. 114. 
 
 ssPhilp V. Squire, 1 Peake, 82; Berthon v. Cartwright, 2 Esp. 480; John- 
 son V. Allen, 100 IS. C. 131, 5 S. E. 666; Bennett v. Smith, 21 Barb. (N. Y.) 
 439; Barnes v. Allen, 30 Barb. (N. Y.) 663; Tasker v. Stanley, 153 Mass. 
 148, 26 N.- B. 417, 10 L. B. A. 468 ; Turner v. Estes, 3 Mass. 317. And see 
 Modisett v. McPike, 74 Mo. 636. One allowing his wife's mother to remain 
 in his house against her husband's wishes is not liable to the husband on 
 account of the mere failure to expel her, where there is no concealment, 
 denial of free access, or attempt to influence her to remain. Turner v. 
 Estes, 3 Mass. 317. 
 
 8 7 Johnson v. Allen, 100 N. O. 131, 5 S. E. 666. See, also, Smith v. Kaye, 
 20 Times Law R. 261, where it is said thg.t in an action for enticing the 
 questions the jury have to consider are whether the defendant persuaded, 
 induced, or Incited the wife to leave, or procured her leaving, and whether in 
 consequence thereof she did leave. If the wife merely asked the defendant 
 
116 EIGHTS AND DUTIES INCIDENT TO COVERTUKB (Ch. 2 
 
 The question of motive most frequently arises in cases where a 
 parent induces a daughter to leave her husband, or harbors her after 
 she has left him. The rule is that, in the absence of improper mo- 
 tives, the parent is not liable to the husband. And stronger proof 
 is necessary as against a parent than as against a stranger. Mr. 
 Schouler states the legal doctrine to be "that honest motives may 
 shield a parent from the consequences of indiscretion, while adding 
 nothing to the right of actual control — the intent with which the 
 parent acted being the material point, rather than the justice of 
 the interference ; that a husband forfeits his right to sue others for 
 enticement, where his own misconduct justified and actually caused 
 the separation; but that otherwise his remedy is complete against 
 all persons whomsoever who have lent their countenance to any 
 scheme for breaking up his household." '* In the case of a father 
 harboring his daughter. Chancellor Kent held that stronger proof 
 is necessary against a father than against a stranger, and that it 
 ought to appear either that he detains the wife against her will, 
 or that he enticed her away from her husband from improper mo- 
 tives.^" "A father's house," he said, "is always open to his children. 
 Whether they be married or unmarried, it is still to them a refuge 
 from evil, and a consolation in distress. Natural affection estab- 
 lishes and consecrates this asylum." 
 
 The rule, therefore, is well settled that a husband cannot main- 
 tain an actions against his wife's parents for enticing her away from 
 him, or for harboring her, unless it is both alleged and proved that 
 they acted from improper motives."" As was Said by the Tennessee 
 
 for advice, and the defendant merely approved of her leaving, the defendant 
 will not be liable if such advice was given in good faith ; it might be dif- 
 ferent if the advice was volimteered. A stranger in blood inducing a wife 
 to leave her husband, or taking her away with or without her consent, and 
 encouraging her to remain away from him, does so at his peril, and the 
 burden is on him to show good cause, good faith, and justification for such 
 acts. Luick v. Arends, 21 N. D. 614, 132 N. W. 353 ; Boland v. Stanley, 88 
 Ark. 562, 115 S. W. 163, 129 Am. St. Kep. 114. 
 
 8 8 Schouler, Husb. & W. § 64. 
 
 8 9Hutcheson v. Peck, 5 Johns. (N. Y.) 196. 
 
 8 Reed V. Keed, 6 Ind. App. 317, 33 N. E. 638, 51 Am. St. Rep. 310; Pow- 
 ell V. Benthall, 136 N. O. 145, 48 S. E. 598; Miller v. Miller, 122 Mo. App. 
 693, 99 S. W. 757; Multer v. Knibbs, 193 Mass. 556, 79 N. E. 762, 9 L. R. 
 A. (N. S.) 322, 9 Ann. Gas. 958; Payne v. Williams, 4 Baxt. (Term.) 585; 
 Glass V. Bennett, 89 Tenn. 478, 14 S. W. 1085; Francis v. Outlaw, 127 
 Md. 315, 96 Atl. 517; Fi-onk v. Fronk, 159 Mo. App. 543, 141 S. W.*692; 
 Beisel v. Gerlach, 221 Pa. 232, 70 Atl. 721, 18 L.-R. A. (N. S.) 516 ; Hutche- 
 son v. Peck, 5 Johns. (N. Y.) 196; Eabe v. Hanna, 5 Ohio, 530; Huling v. 
 
§§ 45-46) ENTICING, ETC., OB ALIENATION OF AFFECTION 117 
 
 court: "There can be no law to restrain the parent from honestly 
 and sincerely^ endeavoring to protect his daughter, by means of 
 counsel and warning, from impending ruin or disgrace, or wreck of 
 her happiness or usefulness for life. There is a marked distinction 
 between the rights and privileges of a parent, in such cases, and 
 those of a mere intermeddling stranger. A father has no right to 
 restrain his daughter from returning to her husband, if she desires 
 to do so. On the other hand, he may lawfully give counsel and 
 honest advice for her own good, and shelter her in his own house, if 
 she chooses to remain with him." °^ 
 
 The same doctrine, it has been held^applies where a wife seeks 
 to recover from her husband's parent for enticing him away."^ And 
 there is no reason why it should not apply where a brother advises 
 and harbors his sister, or where a wife is advised or harbored by 
 one who has stood in loco parentis towards her.°^ 
 
 Huling, 32 111. App. 519; Bennett v. Smith, 21 Barb. (N. Y.) 439; Burnett 
 V. Burkhead, 21 Ark. 77, 76 Am. Dec. 358; Holtz v. Dick, 42 Ohio St. 23, 
 51 Am. Rep. 791; Turner v. Bstes, 3 Mass. 317; Friend v. Thompson, 
 Wright (Ohio) 636; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 
 397; Smith v. Lyke, 13 Hun, 204; Wtiite v. Ross, 47 Mich. 172, 10 N. W. 
 189. Parents who act without malice in giving counsel and advice to a daugh- 
 ter, who has contracted a marriage with a man believed by them wholly 
 unfitted to make her happy, cannot be held liable for alienation. Kleist v. 
 Breitung, 232 Fed. 555, 146 C. C. A. 513, Ann. Gas. 1917K, 1014. 
 
 91 Payne v. Williams, 4 Baxt. (Tenn.) 585 ; Jones v. Monson, 137 Wis. 478, 
 119 N. W. 179,- 129 Am. St. Rep. 1082; Pooley v. Dutton, 165 Iowa, 745, 147 
 N. W. 154. To the same effect, see Multer v. Knibbs, 193 Mass. 556, 79 N. E. 
 762, 9 L. R. A. (N. S.) 322, 9 Ann. Gas. 958, and Barton v. Barton, 119 Mo. 
 App. 507, 94 S. W. 574. In the last case it was said that circumstances 
 will excuse a parent for advising a son regarding Ms domestic affairs and 
 influencing a separation from his wife, especially when he is a minor, which 
 will not excuse like interference by another. A parent, while excluding 
 from his home the spouse of a child, m^y yet receive his own child there- 
 in. Smith V. Smith, 192 Mich. 566, 159 N. W. 349. 
 
 92 Reed v. Reed, 6 Ind. App. 317, 33 N. E. 638, 51 Am. St. Rep. 310; Gregg 
 V. Gregg, 37 Ind. App. 210, 75 N. E. 674; Workman v. Workman, 45 Ind. 
 App. 382, 85 N. E. 997; Heisler v. Heisler, 151 Iowa, 503, 131 N. W. 676; 
 Oooper v. Gooper, 102 Kan. 378, 171 Pac. 5. The circumstance that a child 
 is married does not sever his relations with his parents, who may coimsel 
 him, if in good faith, even relating to matters between himself and wife. 
 Moir V. Moir, 181 Iowa, 1005, 165 N. W. 221. While a mother, if acting in 
 good faith, may counsel her son as to his relations with his wife, yet, if 
 she maliciously interferes with his domestic affairs, she may be liable for 
 wrongfully alienating his affections from his wife. AUcock v. AUcock, 174 
 Ky. 665, 192 S. W. 8.53. 
 
 93 See Glass v. Bennett, 89 Tenn. 478, 14 S. W. 1085; Powell v. Benthall, 
 
118 EIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch.-2 
 
 A parent or per'^son in loco parentis will only be protected under 
 this doctrine where he acted from proper motives. Even a mother 
 is liable to her son-in-law if she entices her daughter away from 
 him, or harbors her, not from proper motives, but because she does 
 not like him.°* 
 
 A person may render himself liable under this doctrine by in- 
 ducing a woman to obtain a divorce from her husband, or vice 
 versa. It has been held that, though a wife may have just cause 
 for, and may obtain, a divorce from her husband, yet, if she would 
 not have obtained the divorce except for the unsolicited interference 
 of a third person, the divorce does not constitute any defense to an 
 action by the husband for loss of his wife's society, though it would 
 be otherwise if the wife sought the advice of her own motion."^ 
 
 Action by Wife 
 
 There is a conflict of opinion as to the right of the wife to m ain- 
 tain an action at co mmon law against another for enticing awa y 
 her husband, or alienating his affections. In some jurisdictions it 
 has been held that neither at common law "" nor under the statutes 
 allowing married women to sue °^ can such an action be main- 
 tained. On the other hand in many well-considered cases, the 
 right of the wife to sue at common law has been recognized,"' 
 
 136 N. G. 145, 48 S. E. 598 ; Ratcliffe v. Walker, 117 Va. 569, 85 S., B. 575, 
 Ann. Cas. 1917E, 1022; Baird v. Carle, 157 Wis. 565, 147 N. W. 834. 
 
 9* Holtz V. Dick, 42 Ohio St. 23, 51 Am. Eep. 791. And see Eailsback v. 
 Railsback, 12 Ind. App. 659, 40 N. E. 276, 1119, and Klein v. Klein, 101 
 S. W. 382, 31 Ky. Law Rep. 28. 
 
 OB Modisett v. McPike, 74 Mo. 636. 
 
 86 Duflies V. Duffies, 76 Wis. 374, 45 N. W. 522, 8 L. E. A. 420, 20 Am. 
 St. Rep. 79. (Oassoday, J., dissenting.) In this case the question is con- 
 sidered at length, and many authorities are collated. See, also. Doe v. 
 Roe, 82 Me. 503, 20 Atl. 83, 8 L. E. A. 833, 17 Am. St. Rep. 499 ; Morgan v. 
 Martin, 92 Me. 190, 42 Atl. 354; Hodge v. Wetzler, 69 N. J.' Law, 490, 55 
 Atl. 49 ; Crocker v. Crocker (C. C.) 98 Fed. 702 ; MehrhofE v. Mehrhoffl (C. C.) 
 26 Fed. 13; Houghton v. Rice, 174 Mass. 366, 54 N.E. 843, 47 L R. A 310 
 75 Am. St. Rep. 351. 
 
 " Duffies V. Duffies, 76 Wis. 374, 45 N. W. 522, ^ L. R. A. 420, 20 Am. St. 
 Rep. 79; Hodge v. Wetzler, 69 N. J. Law, 490, 55 AU. 49. 
 
 »8Nox6n V. Eemington, 78 Conn. 296, 61 Atl. 093; Foot v. Card, 58 Conn. 
 1, 18 Atl. 1027, 6 L. E. A. 829, 18 Am. St Eep. 258; Bennett v. Bennett 
 116 N. y. 584, 23 N. E. 17, 6 L. E. A. 553 ; Haynes v. Nowlin, 129 Ind. 581, 
 29 N. E. 389, 14 L. E. A. 787, 28 Am. St. Eep. 213; Holmes v. Holmes, 133 
 Ind. 386, 32 N. E. 932; Seaver v. Adams, 66 N. H. 142, 19 Atl. 776, 49 Am. 
 St. Eep. 597; Lynch v. Knight, 9 H. L. Cas. 577, 5 Law Times Eea (N 
 S.) 291. 
 
§§ 45-46) ENTICING, ETC., 'or ALIENATION OP AFFECTION 119 
 
 though it must be confessed that in a majority of the cases so 
 holding the opinion thus expressed is jn the nature of dictum. The 
 reasoning of these cases is " that, inasmuch as the husband has the 
 right to su e for the loss nf fhe. rnnsortium of the w'f<^i thf"" ''^" 
 bg no intelligent reason why she should not possess the right to 
 sue for the loss of the society, companionship, aff pftinp^, and pro- 
 tection of the husband, which the law has vouc hsafed tojier." '"' 
 "It was the boast of the common law that 'there is no right with- 
 out a remedy,' and in the main this boast was not an idle one, but 
 was made good bv the vindication of legal rights in almost all in- 
 stances where the right was appropriately presented for judicial 
 consideration and determination. * * * fhe principle outlined 
 in the maxim quoted requires that even where the common law, as 
 it now exists, prevails, it should be held that a wife may have an 
 action against the wrongdoer who deprives her of the society, sup- 
 port, and affections of her husband. If there is any such thing as 
 legal' truth and legal right, a wronged wife may have her action in 
 such a case as this; for, in all the long category of human rights, 
 there is no clearer i:ight than that of the' wife to her husband's 
 support, society, and affection. An invasion of that right is a 
 flagrant wrong, and it would be a stinging and bitter reproach to 
 the law if there were no remedy." ^ 
 
 Whatever may have been the rule at common law, however, it is 
 well settled by the weight of a uthority that since the loss of service 
 is hot neressary in the action, and the right to each other's socie ty 
 and comfort is reciprocal,^ the wife may maintain such an actio n 
 w TTpn h^r r n mm o n 'nV i ^ dV-' ^'lit y jq sup ainnp has hepn rpmnv pd by 
 statute 
 
 8 9 Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, 50 Am! St. Rep. 266. 
 
 1 Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389, 14 L. R. A. 787, 28 Am. 
 St. hep. 213. 
 
 2 i>odge V. Rush, 28 App. D. C. 149, 8 Ann. Oas. 671 ; Gregg v. Gregg, 37 
 Ind. App. 210, 75 N. E. 674. 
 
 3 Weber v. 'Weber, 113 Ark. 471, 169 S. W. .318, L. R. A. 1915A, 67, Ann. 
 Gas. 1916C, 743; Work v. Campbell, 164 Gal. 343, 128 Pac. 943, 43 K R., 
 A. (N. S.) 581; Workman v. Workman, 43 Ind. App. 382, 85 N. E. 997; Gross 
 V. Gross, 70 W. Va. 317, 73 S. E. 961, 39 L. R. A. (N. S.) 261 ; Sims v. Sims, 
 79 N. J. Law, 577, 76 Atl. 1063, 29 L. R. A. (N. S.) 842, Cooley Gas. Persons 
 and Domestic Relations, 52, reversing 77 N. J. Law, 251, 72 Atl. 424; Rott 
 V. Goebring, 33 N. D. 413, 157 N. W. 294, L. R. A. 1916E, 1086, Ann. Oas. 
 1918A, 643 ; Parker v. Newman, 200 Ala. 103, 75 South. 479 ; Bennett v. Ben- 
 nett, 116 N. T. 584, 23 N. E. 17, 6 L. R. A. 553; Smith v. GUlapp, 123 111. 
 App. 121; Nolln v. Pearson, 191 Mass. 283, 7-7 N. E. 890, 4 L. R. A. (N. S.) 
 
120 EIGHTS AND DUTIES INCIDENT TO COVEETUKH (Ch. 2 
 
 ACTION FOR CRIMINAL CONVERSATION 
 
 47. An action for damages, known as an "action for criminal con- 
 versation," lies by a husband against one who has inter- 
 course with his wife without his consent. 
 
 Closely allied to suits for enticing and harboring, and still more 
 closely connected with suits for alienation of affection, are suits for 
 criminal conversation. In such an action a husb and can re coyer 
 damages against any one who has intercourse with his wife without 
 his consent.* " Adultery, or criminal conversation with a man's 
 wife, though it is, as a public crime, left by our laws to the coercion 
 of the spiritual courts, yet, considered as a civil injury (and surely 
 there can be no greater), the law gives a satisfaction to the husband 
 for it by action of trespass vi et armis against the adulterer -^here- 
 in the damages recovered are usually very large and exemplary." ° 
 This action does not, like actions for enticing, harboring, or aliena- 
 
 643, 114 Am. St. Rep'. 605, 6 Ann. Cas. 658; Keen v. Keen, 49 Or. 362, 90 
 Pac. 147, 10 L. R. A. (N. S.) 504, 14 Ann. Cas. 45; Warren v. Warren, 89 
 Mich. 123, 50 N. W. 842, 14 L. R. A. 545; Westlake v. Westlake, 34 Ohio 
 St. 621, 32 Am. Rep. 397; Haynes v. Nowlin, 129 Ind. 581, 29 N. E. 389, 14 
 li. R. A. 787, 28 Am. St. Rep. 213 ; Adams v. Main, 3 Ind. App. 232, 29 N. 
 E. 792, 50 Am. St. Rep. 266 ; Holmes v. Holmes, 133 Ind. 386, 32 N. E. 932 ; 
 Reed v. Reed, 6 Ind. App. 317, 83 N. E. 638, 51 Am. St. Rep. 310 ; RaUsback 
 V. Railsback, 12 Ind. App. 659, 40 N. E. 276, 1119 ; Seaver v. Adams, 66 N. 
 H. 142, 19 Atl. 776, 49 Am. St. Rep. 597; Bassett v. Bassett, 20 111. App. 
 543; rilffing v. Huling, 32 111. App. 519; Williams v. Williams, 20 Colo. 
 51, 37 Pac. 614 ; MehrhofE v. MehrhofC (C. C.) 26 Fed. 13 ; Waldron v. Wal- 
 dron (C. O.) 45 Fed. 315; Price v. Price, 91 Iowa, 693, 60 N. W. 202, 29 
 I/. R. A. 150, 51 Am. St. Rep. 360; Bailey v. Bailey, 94 Iowa, 598, 63 N. 
 W. 341 ; Hodgkinson v. Hodgklnson, 43 Neb. 269, 61 N. W. 577, 27 L. R. A. 
 120, 47 Am. St. Rep. 759 ; Breiman v. Paasch, I Abb. N. C. (N. T.) 249 ; Bak- 
 er V. Baker, 16 Abb. N. C. (N. Y.) 293 ; Jayne's v. Jaynes, 39 Hun, 40 ; Clow 
 V. Chapman, 125 ftio. 101, 28 S. W. 328, 26 L. R. A. 412, 46 Am. St. Rep. 468. 
 
 *3 Bl. Comm. 139; Add. Torts, 589; 1 Jag. Torts, 465, 467, and cases 
 cited; 1 Bish. Mar., Div. & Sep. § 1365; Smith v. Hockenberry, 138 Mich. 
 129, 101 N. W. 207; Id., 146 Mich. 7, 109 N. W. 23, 117 Am. St Rep. 615, 
 10 Ann. Cas. .60 ; Hadley v. Heywood, 121 Mass. 236 ; Winter v. Henn, 4 
 Car. & P. 498 ; Crose v. Rutledge, 81 111. 266 ; Scott v. O'Brien, 129 Ky. 1, 110 
 S. W. 260, 16 L. R. A. (N. S.) 742, 130 Am. St. Rep. 419; Scripps v. Reilly. 
 38 Mich. 23 ; Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 260 ; 
 Dalton V. Dregge, 99 Mich. 250, 58 N. W. 57; Wood v. Mathews, 47 Iowa, 
 409; Van Vacter v. McKillip, 7 Blackf. (Ind.) 578; Ferguson v. Smethers, 
 70 Ind. 519, 36 Am. Rep. 186; and cases hereafter cited. 
 
 3 Bl. Cohim. 139. The term "criminal conversation," in its general and 
 comprehensive sense, is synonymous with "adultery"; but in its more lim- 
 
§ 47) ACTION FOR CRIMINAL CONVERSATION 121 
 
 tion of affection ^ rest on the loss of the wife's society, affection,_ pr 
 services: h"t it rpctc nn ttip injury sustained by the defilement of 
 t he marriage bed, the invasion of the husband's exclusive right to 
 marital intercourse, and the suspicion cast upon the legitimacy of 
 the oflfspring." One who commits rape is liable in this action.'' 
 The intercourse need not have been the result of seduction.^ It is 
 true that, as in actions for enticing, harboring, etc., the husband 
 may, in an action for criminal conversation, show the alienation of 
 his wife's affection, and the loss of her services, society, etc., but 
 this only; goes in aggravation of damages.' It need not necessarily 
 be shown, for the action is not based on any pecuniary loss.^" The 
 relations in which the spouses lived, whether happy or otherwise, 
 and previous acts of adultery, either by the husband or the wife, 
 may always be shown, as bearing on the question of damages. ^^ 
 
 ited and technical signification it may be defined as adultery in the aspect 
 of a tort. Turner v. Heavrin, 182 Ky. 65, 206 S. W. 23, 4 A. L. E. .562. 
 
 8 Reeve, Bom. Kel. (4th Ed.) 90 ; Cooley, Torts, 224 ; Kroessin v. Keller, 
 60 Minn. 372. 62 N. W. 438, 27 L. R. A. 685. 51 Am. St. Rep. 533 ; Bigaouette 
 V. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Johnston v. Disbrow, 47 Mich. 
 59, 10 N. W. 79; Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. 
 Rep. 260 ; Yundt v. Hartrunft, 41 111. 9 ; Wood v. Mathews, 47 Iowa, 409 ; 
 Bedan v. Turney, 99 Cal. 649, 34 Pac. 442. 
 
 7 Egbert V. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 260 ; Bigaou- 
 ette V. Paulet, 134 Mass. 123, 45 Am. Rep. 307. 
 
 s Weedon v. Timbrell, 5 Term R. 360 ; Wales v. Miner, 89 Ind. 118 ; Wood 
 T. Mathews, 47 Iowa, 409; Hadley v. Heywood, 121 Mass. 236. 
 
 9 The cause of action for criminal conversation exists independently of a 
 cause of action for alienation of the affections. Barlow v. Barnes, 172 Gal. 
 98, 155 Pac. 457. In the action for criminal conversation, proof of aliena- 
 tion of the affections is unnecessary., Merritt v. Cravens, 168 Ky. 155, 181 
 S. W. 970, L. R. A. 1917F, 935. But alienation of affections may be shown 
 in aggravation of damages. Stark v. Johnson, 43 Colo. 243, 95 Pac. 930, 
 16 L. R. A. (N. S.) 674, 127 Am. St. Rep. 114, 15 Ann. Cas. 868. The gist or 
 gravamen of the charge is the criminal conversation, the alienation of the 
 spouse's affections being incidental and material only in so far as it affects 
 the quantum of damages. Watkins v. Lord, 31 Idaho, 352, 171 Pac. 1133. 
 
 i» See cases above cited. And see Prettyman v. Williamson, 1 Penne- 
 wlU (Del.) 224, 39 Atl. 731; Long v. Booe, 106 Ala. 570, 17 South. 716. 
 
 113 Suth. Dam. 745; Add. Torts, 593; 2 Greenl. Ev. § 56; Reeve, Dom. 
 Rel. (4th Ed.) 91 ; Winter v. Henn, 4 Car. & P. 494 ; Bromley v. Wallace, 4 
 Esp. 237; Coleman v. White, 43 Ind. 429; Browning v. Jones, 52 111. App. 
 597; Hadley v. Heywood, 121 Mass. 236; Conway v. Mcol, 34 Iowa, 533; 
 Dance v. McBride, 43 Iowa, 624; Dalton v. Dregge, 99 Mich. 250, 58 N. w'. 
 57; Smith v. Masten, 15 Wend. (N. Y.) 270; Shattuck v. Hammond, 46 
 Vt. 466, 14 Am. Rep. 631; Norton v. Warner, 9 Conn. 172; Rea v. Tucker, 
 51 111. 110, 99 Am. Dec. 539; Torre v. Summers, 2 Nott & McC. (S. C.) 267,' 
 10 Am. Dec. 597. In mitigation of damages, it may be shown that the wife 
 
122 RIGHTS AND DUTIES INCIDENT TO COVERTURE (Ch. 2 
 
 But they cannot be relied upon to defeat the husband's action en- 
 tirely. A husband may sue for criminal conversation, though he 
 is living apart from his wife, and leading a dissolute life.^^ 
 
 It is, of course, a good defense to the action, on the principle, 
 "Volenti non fit injuria," that the husband consented to the par- 
 ticular act of intercourse complained of, or that he gave his wife a 
 general license to conduct herself with other men as she saw fit, 
 or allowed her to live as a common prostitute.^^ 
 
 But continued cohabitation after knowledge of acts of adultery, 
 though amounting to condonation, barring an action for divorce,^* 
 is not a defense to' the action for criminal conversation.^'^ 
 
 When we consider the grounds upon which the action for criminal 
 conversation rests, it would seem clear that a wife could not main- 
 tain such an action against another woman for having intercourse 
 with her husband, and it has been so held.^" There are cases to the 
 contrary, or apparently so ; but in these cases the court relied, as 
 authority for their decision, upon those cases which uphold an ac- 
 tion by a wife for alienation of her husband's affection, or for en- 
 ticing him away.^' As we have seen, the grounds for these differ- 
 ent kinds of action are different. Because a wife is allowed to 
 
 was the seducer. Elsam v. Faucett, 2 Esp. 562 ; Ferguson v. Smetliers, 70 
 Ind. 519, 36 Am. Rep. 186. 
 
 12 Browning v. Jones, 52 111. App. 597 ; Evans v. Evans, 68 Law J. Prob. 
 70, [1899] Prob. 195, 81 Law T. (N. S.) 60. 
 
 13 Winter v. Henn, 4 Oar. & P. 494 ; Hodges v. Windham, 1 Peake, 38 ; Bun- 
 nell V. Greathead, 49 Barb. (N. Y.) 106; Morning v. Long, 109 Iowa, 288, 
 80 N. W. 390 ; Rea v. Tucker, 51 111. 110, 99 Am. Dec. 539 ; Stumm v. Hum- 
 mel, 39 Iowa, 478 ; Cook v. Wood, 30 Ga. 891, 76 Am. Dec. 677 ; Sanborn t. 
 Neilson, 4 N. H. 501; Schorn v. Bevr^, 63 Hun, 110, 17 N. Y. Supp. 572; 
 Fry V. Drestler, 2 Yeates (Pa.) 278. Connivance by a husband, sufficient 
 to bar an action for criminal conversation, must be such conduct as when, 
 subjected to the test of reasonable human transactions, shows an inten- 
 tion to connive, evidenced by his active or passive assent to transactions 
 tending to convince, an ordinarily prudent person , of his wife's offense. 
 Kohlhoss V. Mobley, 102 Md. 199, 62 Atl. 236, 5 Ann. Cas. 865. 
 
 1* See post, p. 277. 
 
 15 Smitli V. Hockenberry, 138 Mich. 129, 101 N. W. 207; Id., 146 Mich. 
 7, 109 N. W. 23, 117 Am. St. Rep. 615, 10 Ann. Cas. 60; Sanborn v. Neilson, 
 4 N. H. 501 ; Clouser v. Clapper, 59 Ind. 548 ; Verholf v. Van Houwenlengen, 
 21 Iowa, 429 ; Sikes v. Tippins, 85 Ga. 231, 11 S. E. 662 ; Powers v Powers 
 10 Prob. Div. 174. 
 
 "Kroessin v. Keller, 60 Minn. 372, 62 N. W. 438, 27 L. B A 685 51 
 Am. St. Rep. 533. 
 
 17 Seaver v. Adams, 66 N. H. 142, 19 Atl. 776, 49 Am. St. Rep. 597- Haynes 
 V. Nowlin, 129 Ind. 581, 29 N. E. 389, 14 L. R. A. 787, 28 Am. St. Rep 213 ■ 
 Dodge V. Rush, 28 App. D. O. 149, 8 Ann. Cas. 671. 
 
§ 47) ACTION FOR CRIMINAL CONVERSATION 123 
 
 maintain an action against a wGnian who entices her husband away 
 from her, or aHpnates his affections without enticing him away, is 
 no reason for holding that a wife can maintain an action against 
 a woman for criminal conversation with her husband.^* To entitl e 
 a wife to maintain an action against one who has^intercourse with 
 
 her husband, she must sh ow sor nething more than the mere fact of 
 inter course. She must show an enticing away, or ali'pnatinn nf thp 
 affection of. her husband. A husband can maintain an action for 
 criminal con versatior» against one who commits a rape upon hi s 
 wife. Assuming the possibility of a woman compelling a man, 
 agamst his will, to have intercourse with her, it would hardly' be 
 contended that this alone would give the man's wife a right of ac- 
 tion. 
 
 On the other hand, in Dodge v. Rush,^° the court, holding that 
 the right of action existed, said: "While the injurious consequenc- 
 es of a wife's adultery may be more far reaching, because of proba- 
 ble difficulties and embarrassments in respect of the legitimacy of 
 children, her conjugal rights are in principle the same, substantial- 
 ly, as his. Whatever the ancient doctrine may have been, modern 
 morals and law recognize the equal obligation and right of husband 
 and wife." =" 
 
 18 See Kroessin v. Keller, 60 Minn. 372, 62 N. W. 438, 27 L. R. A. 685, 
 51 Am. St. Rep. 533 ; Doe v. Roe, 82 Me. 503, 20 Atl. 83, 8 L. R. A. 833, 17 
 Am. St. Rep. 499. 
 
 19 28 App. D. C. 149, 8 Ann. Cas. 671. 
 
 2» In view of Married Women's Act of 1894, empowering the wife to sue 
 for the protection of her rights, without the husband's consent, the wife 
 has right of action for criminal conversation. Turner v. Heavrin, 182 Ky. 65, 
 206 S. W. 23, 4 A. L. R. 562. 
 
124 RtGHTS IN PROPERTY AS AFFECTED BY COVBKTURB (Ch. 3 
 
 CHAPTER III 
 RIGHTS IN PROPERTY AS AFFECTED BY COVERTUaB 
 
 48. Wife's Earnings. 
 
 49. Wife's Personalty in Possession. 
 50-51. Wife's Ohoses in Action. 
 
 52. Administration of Wife's Estate. 
 
 , 53. Wife's Chattels Real. 
 
 54. Wife's Estates of Inheritance — Curtesy. 
 
 55. Wife's Estates for Life. 
 
 56-57- Modification of Common-law Rules. 
 
 58. Wife's Rights in Husband's Property — Dower and Thirds. 
 
 59. Estates by the Entirety. 
 
 60. Community Property. 
 
 As has already been stated, the effect of marriage, at common 
 law, is to suspend the legal existence of the wife, for most purposes, 
 during coverture, and merge it in that of the husband. Upon this 
 principle depend many of the rules relating to property and prop- 
 erty rights owned or acquired by the wife. Of course the husb.and's 
 legal existence is not affected by marriage, and, therefore, property 
 and property rights, owned or acquired by him, are not during his 
 life affected by the marriage, though certain rights therein are giv- 
 en the wife on his death, and in some states by statute the doctrine 
 of community property has been adopted from the civil law. As 
 will appear, however, in this and subsequent chapters, the cqmfflon- 
 law rules respecting the rights of the wife have been iriaterially 
 modified by statute, so that her rights and powers are in many 
 states equal to those of the husband. 
 
 ^ WIFE'S EARNINGS 
 
 48. At common law the husband is entitled absolutely to his wife's 
 earnings, but under modern statutes she is generally en- 
 titled to earnings derived from services apart from the 
 household or business of the husband. f 
 
 At common law, the husband is entitled to the earnings of his 
 wife. He takes all the proceeds of her industry, 'whether it is in 
 
§ 48) - wipe's earnings ' 125 
 
 the form of money paid her, or other property.^ Tl;ie rule not only 
 applies to earnings which have actually been received by him or by 
 her, but it also applies to earnings which are due, unless there is 
 an express promise to the wife. The husband alone is entitled to 
 receive such earnings, and he must sue therefor in his own name.^ 
 In case of his death the action cannot be maintained by the wife, 
 as she has never been entitled to the earnings, but must be brought 
 by the personal representatives of the husband.' The rules are 
 different if the wife can show an express promise to her by the 
 debtor. In such a case an action to recover the earnings may be 
 maintained by the husband and wife,* or by the wife alone after 
 the death of the husband.'' 
 
 It follows from this doctrine that the husband only can release 
 the debtor from liability for the wife's earnings. The debtor can- 
 not discharge his liability by paying the wife, and taking her sepa- 
 rate receipt, unless the payment has been authorized by the hus- 
 band. ° As will be seen in another place, the husband may appoint 
 
 1 Offley V. Clay, 2 Man. & G. 172 ; Buckley v. Collier, 1 Salk. 114 ; Russell 
 V. Brooks, 7 Pick. (Mass.) 65; McDavid v. Adams, 77 111. 155; Schwartz v. 
 Saunders, 46 111. 18; Bear v. Hays, 36 111. 280; Prescott v. Brown, 23 Me. 
 305, 39 Am. Dec. 623 ; Seltz v. Mitchell, 94 U. S. 580, 24 L. Ed. 179 ; Yopst 
 V. Topst, 51 Ind. 61; Turtle v. Muncy, 2 J. J. Marsh. (Ky.) 82; Armstrong v. 
 Armstrong. 32 Miss. 279; Skillman v. Skillman, 15 N. J. Bq. 478, 82 Am. 
 Dec. 279 ; Bucher v. Ream, 68 Pa. 421 ; Reynolds v. Robinson, 64 N. T. 589 ; 
 Carleton v. Rivers, 54 Ala. 467 ; Hawkins v. Railroad Co., 119 Mass. 596, 20 
 Am. Rep. 353 ; Ewell, Lead. Oas. 355, and cases there cited. "By the common 
 law, the earnings of the wife, the product of her skill and labor, belong to 
 the husband. They do not become the 'property of the wife, even in equity, 
 without a clear, express. Irrevocable gift, or some distinct aflBrmative acr 
 of the husbaml, divesting himself of them or setting them apart for her 
 separate use." t*S15PIman v. Skillman, 15 N. J. Eq. 478, 82 Am. Dec. 279. And 
 see McLemore v. Pinkston, 31 Ala. 266, 68 Am. Dec. 169. The rule, of course, 
 applies to the joint earnings of husband and wife, as ^here they work togeth- 
 er in carrying on a boarding house, hotel, or any other business. ShaefCer v. 
 Sheppard, 54 Ala. 244 ; Bowden v. Gray, 49 Miss. 547 ; Reynolds v. Robin- 
 son, 64 N. Y. 589 , Carleton v. Rivers, 54 Ala. 467. Property purchased by the 
 wife with the proceeds bf her labor is within the rule. Hawkins v. Railroad 
 Co., 119 Mass. 596, 20 Am. Rep. 353 ; Carleton v. Rivers, 54 Ala. 467. 
 
 2 Buckley v. Collier, 1 Salk. 114 ; Offley v. Clay, 2 Man. & G. 172 ; Russell 
 V. Brooks, 7 Pick. (Mass.) 65 ; McDavid v. Adams, 77 111. 155 ; Gould v. Carl- 
 ton, 55 Me. 511. 
 
 3 Prescott V. Brown, 23 Me. 305, 39 Am. Dec. 623; Buckley v. Collier, 1 
 Salk. 114. 
 
 * Prat V. Taylor, Cro. Eliz. 61 ; Brashf ord v. Buckingham, Oro. Jac. 77, 
 205; Weller v. Baker, 2 Wils. 424. 
 
 6 Prescott V. Brown, 23 Me. 305, 39 Am. Dec. 623. 
 
 s Offley V. Clay, 2 Man. & G. 172 ; Russell v. Brooks, 7 Pick. (Mass.) 65. 
 
126 EIGHTS IN PROPERTY AS AFFECTED BT COVERTURE (Ch. 3 
 
 his wife his ag^nt to receive. her earnings; and subject to restric- 
 tions as to creditors, he may give them to her. 
 
 Effect of Modern Statutes 
 
 The right of the husband to the services and earnings of the 
 wife is not changed by the general statutes relating to the property 
 of married women.'' In many states, however, the statute expressly 
 provides that the earnings of the wife shall be her separate prop- 
 erty, and under such statutes earnings derived from services other 
 than those rendered in the household or business of the husband 
 belong to her.* 
 
 T Merrill v. Smith, 37 Me. 394 ; Lee v. Savannah Gfuano Co., 99 Ga. 572, 27 
 S. E. 159, 59 Am. St. Rep. 243; Blaechinska v. Howard Mission & Home 
 for Little Wanderers, 130 N. T. 497, 29 N. E. 755, 15 L. R. A. 215, Cooley 
 Cas. Persons and Domestic Relations, 57 ; MlcClintic v. McClintlc, 111 Iowa, 
 615, 82 N. W. 1017. 
 
 8 Code Ala. 1907, § 4487 ; Kirby's Dig. Ark. 1904, § 5214 ; Burns' Ann. St 
 Ind. 1908, § 7867; Rev. St. Me. 1903, c. 63, § 3; Rev. Laws Minn. 1905, § 
 3606; Larkln v. Woosley, 109 Ala. 258, 19 South. 520; Stevens v. Cunning- 
 ham, 181 N. Y. 454, 74 N. E. 434; Blaechinska v. Howard Mission & Home 
 for Little Wanderers, 130 N. T. 497, 29 N. E. 755, 15 L. R. A. 215, Cooley Cas. 
 Persons and Domestic Relations, 57 ; Brooks v. Schwerin, 54 N. T. 343 ; 
 Nudlng V. Urich, 169 Pa. 289. 32 Atl. 409, Cooley Cas. Persons and) Domestic 
 Relations, 61; Grant v. Sutton, 90 Va. 771, 19 S. E. 784; Emerson-Talcott 
 Co. V. Knapp, 90 Wis. 34, 62 N. W. 945 ; Turner v. Davenport, 63 N. J. Eq. 
 288, 49 Atl. 463. See, also, Elliott v. Hawley, 34 Wash. 585, 76 Pac. 93, 101 
 Am. St. Rep. 1016 ; Garver v. Thoman, 15 Ariz. 38, 135 Pac. 724 (commissions 
 as agent) ; Elliott v. Atkinson, 45 Ind. App. 290, 90 N. E. 779 (keeping board- 
 ers) ; In re Lewis' Estate, 156 Pa. 337, 27 Atl. 35 (keeping boarders) ; Perry 
 v. Blumenthal, 119 App. Div. 663, 104 N. Y. Supp. 127 (keeping boarders). 
 But see Cory v. Cook, 24 R. I. 421, 53 Atl. 315, holding that where board is 
 furnished in a household. It is to be presumed, in the absence of agreement 
 to the contrary, or evidence that the wife furnished it from her separate 
 estate, that the husband is entitled to compehsation therefor. But even 
 where the husband keeps- a house of entertainment, so that the services of the 
 wife in connection with the keeping of boarders would belong to the husband, 
 she is, nevertheless, entitled to compensation for extra labor performed for 
 such boarders, such, as making, mending, or washing clothes. Vincent v. 
 Ireland, 2 Pennewill (Del.) 580, 49 Atl. 172. In Turnfer v. Davenport, 63 N. 
 J. Eq. 288, 49 Atl. 463, it was held that the wife could recover for services 
 rendered to a partnership of which her husband was a member. And see 
 Baker v. Jewel Tea Co., 152 Iowa, 72, 131 N. W. 674, where wife rendered 
 services for a corporation. Under the statutes of California (Civ. Code, §§ 
 158, 159), relating to the rights of n^arried women, a wife may contract with 
 her husband to perform services for' him outside the family relation for 
 wages which are to be her separate property. "Moore v. Crandall, 205 Fed. 
 689, 124 C. C. A. 11. Without an agreement to the contrary, the earnings 
 and profits of the labor of a wife are her separate property, under Rev. 
 Laws, c. 153, § 4. Briggs v. Sanford, 219 Mass. 572, 107 N. E. 436. 
 
§ 48) wife's earnings 127 
 
 As to those services rendered in the household or the business 
 of the husband, the earnings, in the absence of a special agreement, 
 belong to the husband," and in some states it is held that, unless 
 the statute gives the wife the right to contract as a feme sole with 
 any person, including her husband, she cannot, even under a con- 
 tract with the husband, acquire the right to her earnings derived 
 from services rendered him in his business,^" though as to services 
 rendered independently the earnings are her property.^^ 
 Wife as Sole Trader 
 
 As will presently be seen, the wife may, by the aid of a court of 
 equity, under an agreement with her husband, carry on a separate 
 
 "Coleman v. Burr, 93 N. Y. 17, 45 Am. Rep. 160; Brooks v. Schwerin, 54 
 N. Y. 343 ; Standen v. Pennsylvania R. Co., 214 Pa. 189, 63 Ati. 467, 6 Ann. 
 Cas. 408; Kennedy v. Swisher, 34 Ind. App. 676, 73 N. B. 724; Snickles v. 
 City of St. Joseph, 155 Mo. App. 308, 136 S. W. 752 ; Rockwell v. Robinson's 
 Estate, 158 Wis. 319, 148 N. W. 868; Larisa v. Tiffany (R. I.) 105 Atl. 739; 
 Monahan v. Monahan, 77 Vt. 133, 59 Atl. 169, 70 L. R.A. 935. It is, how- 
 over, held in some states that if the parties so agree the wife may be enti- 
 tled to her earnings derived from her services in the household or her hus- 
 band's business. Nudlng v. Urich, 169 Pa. 289, 32 Atl. 409, Cooley Cas. Per- 
 sons and Domestic Relations, 61 ; Bodkin v. Kerr, 97 Minn. 301, 107 N. W. 
 1:j7 ; Vansickle v. Wells, Fargo & Co. (C. C.) 105 Fed. 16. 
 
 i» Blaechinska v. IToward Mission & Home for Little Wanderers, 130 N. 
 Y. 497, 29 N. E. 755, 15 L. R. A. 215, Cooley Oas. Persons and Domestic Re- 
 lations, 57 (under I/aws 1884, p. 465, c. 381). See, also, Lee v. Savannah 
 Gjiano Co., 99 Ga. 572, 27 S. E. 159, 59 Am. St. Rep. 243. But see Turner 
 V. Davenport, 63 N. J. Eq. 288, 49 itti 463, holding that a married woman 
 may contract with a firm in which he,r husband is a member, and recover in 
 equity for wages for her personal services under such contract. An express 
 contract between a husband and wife that she should receive reasonable 
 compensation for extra and unusual services rendered outside her domestic 
 duties is valid. In re Cormick's Estate, 100 Neb. 669, 160 N. W. 989, L. R. A. 
 1917D, 265. 
 
 11 Kennedy v. Swisher, 34 Ind. App. 676, 73JSr. E. 724; Hamilton v. Ham- 
 ilton's Estate, 26 Ind. App. 114, 59 N. E. 344 /Turner v. Davenport, 63 N. J. 
 Eq. 288, 49 Atl. 463. Where circumstances, forced a wife to become the ex- 
 ecutive and vi'orking head of a family, and the husband for years recognized 
 her right to earn and disburse money, he himself doing business with her 
 as with a stranger, and she has sought to acquire for their sons a business in 
 which they could earn their living and has exercised good judgment in seeing 
 to it that the husband did not interfere in the management thereof, he is not 
 entitled to the ownership of the earnings of the wife. Pearll v. Pearll Adver- 
 tising Co., 162 Mich. 439, 127 N. W. 264. A wife may, where her husband con- 
 sents, maintain a suit to recover her earnings. Central of Georgia Ry. Co. v. 
 Cheney, 20 Ga. App. 39S, 93 S. E. 42. TJnder Code Pub. Civ. Laws, art. 45, § 5, 
 empowering married women to engage in any business and to contract and sue 
 as if unmarried, a married woman may in her own name instead of that of her 
 husband maintain a suit against an executrix to recover for personal serv- 
 
128 EIGHTS IN PEOPBRTZ AS AFFECTED BY COVEETtJRB (Ch. 3 
 
 trade or, business for her own use and benefit, in which case, in 
 equity, she will be entitled to hold the profits therefrom to her 
 separate use.^'' 
 
 WIFE'S PERSONALTY IN POSSESSION 
 
 49. At common law, the wife's personalty in possession vests exclu- 
 sively in her husband, without any act on his part, and on 
 , his death passes to his personal representatives. This is 
 true as to personalty owned by her at the time of the 
 marriage, and personalty acquired during coverture, and 
 as to personalty in her actual possession, and personalty 
 in the actual possession of some third person not holding 
 adversely. 
 EXCEPTIONS— The rule does not apply to the wife's para- 
 phernalia; that is, such articles of wearing apparel, per- 
 sonal ornament, or convenience as are suitable to her rank 
 and condition. These belong to the husband, like other 
 personalty in possession; but, if undisposed— ot^byhim, 
 they belong to the wife on his death. ~' 
 
 At common law, all the personal property of a woman, including 
 money, and goods and chattels of every description, which she has 
 in possession at the time of her marriage, vests absolutely in her 
 husband, and becomes as much his as if it had been originally 
 acquired by him. He may dispose of it as he sees fit; it may be 
 seized by his creditors and subjected to the payment of his debts; 
 and on his death it will go to his personal representatives, even 
 though the wife may be the survivor.^^ The same -rule applies to 
 
 ices rendered decedent, with her husband's consent, for a consideration 
 passing to her personally. Neudecker v. Leister, 132 Md. 571, 104 Atl. 47. 
 
 12 Post, p. 162. 
 
 13 2 Kent. Comm. 143; Co. Litt. 351b; 2 Bl. Comm. 434; Lamphir v. 
 Creed, 8 Ves. 599 ; Ellington v. IBarris, 127 Ga. 85, 56 S. E. 134, 119 Am. St. 
 Kep. 320 ; Legg v. Legg, 8 Mass. 99 ; Jordan v. Jordan, 52 Me. 320 , Cooley 
 Cas. Persons and Domestic Relations, 63 ; Crosby v. Otis, 32 Me. 256 ; Carle- 
 ton V. Lovejoy, 54 Me. 445 ; Hawkin's Adm'r v. Oraig, 6 T. B. Mon. (Ky.) 
 254; Morgan v. Bank, 14 Conn. 89; Tune v. Cooper, 4 Sneed (Tenn.) 296; 
 Snyder v. Jett, 138 Tenn. 211, 197 S. W. 488; Otto F. Stifel's Union Brew- 
 ing Co. V. Saxy, 273 Mo. 159, 201 S. W. 67, L. B. A. 1918C. 1009; Ellington 
 V. Harris, 127 Ga. 85, 56 S. E. 134, 119 Am. St. Kep. 320; Hoskins v. Miller, 13 
 N. C. 360; Caffey V. Kelly, 45 N. 0. 48; Cropsey v. McKinney, 30 BarD. 
 (N. X.) 47; Ilyde v. Stone, 9 Cow. (N. y.) '2S0, 18- Am. Dec. 501; Colbert v. 
 
§ 49) wife's personalty in possession 129 
 
 personalty acquired by the wife during coverture, whether by gift, 
 bequest, purchase, or by her own labor.^* 'And it applies to money 
 received as the proceeds of her real estate, either as rent or as pur- 
 chase money on a sale thereof.^^ If the wife's interest was that of 
 a tenant in common, the husband assumes the same relation in 
 her place.^' Personalty in possession, though settled to the sepa- 
 rate use of the wife, passes to him personally, on her death, jure 
 mariti; for a wife's separate estate lasts only during coverture." 
 Personal property which is constructively in the wife's posses- 
 sion vests in the husband equally with that in her actual posses- 
 sion. In legal contemplation, personalty of the wife, in the hands 
 of another person, whose possession is not adverse, is in her pos- 
 session. Thus a chattel in the hands of another under a contract 
 for hire is in the wife's possession, since the possession of a bailee 
 is that of the bailor.^' Likewise the possession of her agent is that 
 of the wife;^" the possession of a guardian is that of the ward; "" 
 the possession of a donor retaining possession for life is that of the 
 
 Daniel, 32 Ala. 314, 327; Kixey's Adm'r y. Deitriek, 85 Va. 42, 6 S. E. 615. 
 But the husband may waive his right and permit the' wife to own and 
 control such personalty as of her separate estate. IBoldrick v. Mills, 96 S. 
 W. 524, 29 Ky. Law Rep. 852. Mere admissions liy^ husband who has pur- 
 chased realty with personalty belonging originally to his wife, but wliicli 
 has vested in him by his marriage, that, he holds the land for the benefit 
 of the heirs of his wife, will not divest the title of his heirs, unless there 
 has been during the lifetime of the wife a gift to her of the chattels, title 
 to which the husband acquired by tho marriage, or such a gift of the pro- 
 ceeds of the sale of such chattels before the( same were invested in land. 
 Ellington v. Harris, 127 Ga. 85, 56 S. E. 184, 119 Am. St. Kep. 320. 
 
 1* Newlands v. Paynter, 4 Mylne & C. 408 ; Came v. Brice, 7 Mees. & W. 
 183; Leslie v. Bell, 73 Ark. 338, 84 S. W. 491; Shirley v. Shirley, 9 Paige 
 (N. T.) 363; Vreeland's Ex'rs v. Kyno's Ex'r, 26 N. J. Eq. 160; Kensington 
 V. Dollond, 2 Mylne & K. 184 ; Ewing v. Helm, 2 Tenn. Ch. 368. As to earn- 
 ings of, the wife, see ante, p. 124. 
 
 1 5 Plummer v. Jarman, 44 Md. 632 ; Lichtenberger v. Graham, 50 Ind. 288 ; 
 Hamlin v. Jones, 20 Wis. 536 ; Crosby v. Otis, 32 Me. 256 ;- Martin v. Martin, 
 1 N. Y. 473; Sheriff of Fayette v. Buckner, 1 Litt. (Ky.) 126; Thomas v. 
 Chicago, 55 111. 403. 
 
 10 Hyde v. Stone, 9 Cow. (N. Y.) 230, 18 Am. Dec. 501 ; Hopper v. Mc- 
 Whorter, 18 Ala. 229. 
 
 17 2 Macq. Husb. & W. 288; Molony v. Kennedy, 10 Sim. 254; Brown's 
 Adm'rs v. Brown's Adm'rs, 6 Humph. (Tenn.) 127. 
 
 iswtiitaker v. Whitaker, 12 N. C. 310; Magee v. Toland, 8 Port. (Ala.) 
 36; Marrow v. Whites! des' EX'r, 10. B. Mon. (ICy.) 411; Armstrong v. Si- 
 monton's Adm'r, 6 N. C. 351 ; Dade v. Alexander, 1 Wash. (Va.) 30. 
 
 10 Crosby v. Otis, 32 Me. 256. 
 
 20 Magee v. Toland, S Port. (Ala.) 36 ; Davis v. Rhame, 1 McCord, Eq. (S. 
 C.) 191 ; Sallee v. Arnold, 32 Mo. 532, 82 Am. Dec. 144 ; Miller v. Blackburn, 
 Tn!T.P.& D.Rel.(3d Ed.)— 9 
 
130 RIGHTS IN PEOPERTX AS AFFECTED BY COVERTURE (Ch. 3 
 
 donee; "^.and so generally chattels in the hands of another, not un- 
 der a hostile claim, are in the possession of the owner.^^ In Ala- 
 bama it has been held that the possession of the wife must be ac- 
 tual, and not constructive ; ^^ but the great weight of authority is 
 against such a view.' 
 
 When the property is in the hands of another, whose relations tO' 
 the wife are those of a debtor, and not a bailee or servant, his pos- 
 session is hot the wife's possession. She has only a right to posses- 
 sion or a chose in action. For instance, money in bank is the prop- 
 erty of the bank, and the wife has only a chose in action, the rela- 
 tion being purely that of debtor and creditor.^* So where a person 
 received money from another to be appropriated to a married wo- 
 man, the court held that, nothing having been done to vest any 
 property in any coin as a chattel, the money did not vest in the 
 husband, but remained a chose in action in the wife.^° The rules 
 relating to the wife's choses in action are explained in a subsequent 
 section. 
 
 The husband's right to his wife's personalty in possession is the 
 result of the marriage, and depends upon nothing else. It lasts as' 
 long as the marriage relation lasts. He does not lose the right by 
 a divorce a mensa et thoro, or judicial separation,^* though it is 
 otherwise in the case of a divorce a vinculo matrimonii, for that 
 puts an end to the relation. The husband does not lose this right 
 even by deserting his wife and living in adultery.^' 
 
 Wife's Paraphernalia 
 
 The wife's paraphernalia, being such articles of wearing apparel, 
 personal ornament, or convenience as are suitable to her rank,^' 
 which she had at the time of marriage, or which are given to her by 
 
 14 Ind. 62; Daniel v. Daniel, 2 Rich. Eq. (S. O.) 118, 44 Am. Dec. 244; Mc- 
 Daniel v. Whitman, 16 Ala. ,343 ; Chambers v. Perry, 17 Ala. 726 ; Davis' 
 Appeal, 60 Pa. 118. 
 
 21 Banks' Adm'rs v. Marksberry, 3 Litt. (Ky.) 275. 
 
 2 2 Wallace v. Burden, 17 Tex. 467; Caffey v. Kelly, 45 K. C. 48; Brown v. 
 Fitz, 13 N. H. 283; Sausey v. Gardner, 1 Hill (S. O.) 191. 
 
 2 Mason v. McNeill's Ex'rs, 23 Ala. 214; Hair v. Avery, 28 Ala. 273. 
 
 2 4 Carr v. Carr, 1 Mer. 543, note. 
 
 2 5 Meet V. Perrins, L. R. 3 Q. B. 536; Id., L. R. 4 Q. B. 500. 
 
 2 8 Glover v. Pi-oprietors of Drury Lane, 2 Chit. 117; Washburn v. Hale, 
 10 Pick. (Mass.) 429; Prescott v. Brown, 23 Me. 305, 39 Am. D«c. 623. 
 
 2 7 Vreeland's Ex'rs v. Ryno's Ex'r, 26 N. J. Eq. 160; Russell v. Brooks, 7 
 Pick. (Mass.) 65 ; Armstrong v. Armstrong, 32 Miss. 279 ; Turtle v. Muncy, 2 
 J. J. Marsh. (Ky.) 82. 
 
 28 2 Bl. Comm. 436. 
 
§§ 50-51) wife's choses in action 131 
 
 her husband during coverture, follow a different rule. Like other 
 personalty in possession, they belong to the husband; but, if not 
 disposed of by him during his life, they become her absolute prop- 
 erty,^" subject, however, to the claims of the husband's creditors.'" 
 In most states there are statutes making similar provisions for the 
 widow. 
 
 WIFE'S CHOSES IN ACTION 
 
 50. A husband is entitled to his wife's choses in action if he re- 
 
 duces them to possession during coverture, but not other- 
 wise. To reduce them to possession he must exert some 
 act of ownership over them, with the intention of con- 
 verting them to his own use. 
 
 51. EQUITY TO A SETTLEMENT^If necessary to ask the aid 
 
 of a court of equity to reduce the wife's choses in action 
 to possession, the husband must make suitable provision 
 for the maintenance of the wife and children. 
 
 While the wife's personal property in -possession vests absolutely 
 in the husband by virtue of the marriage alone, without any act on 
 his part, it is otherwise with her choses in action. These do not 
 vest in him unless he does some act during the coverture by which 
 he appropriates them to himself, or, as it is expressed, reduces them 
 to possession.'^ If he fails to reduce them to possession during 
 coverture, and dies before his wife or is divorced, they remain her 
 property, and pass to her representatives.'^ If she dies first, and 
 
 2» Tipping V. Tipping, 1 P. Wms. 730 ; Schouler, Husb. & W. § 431. The 
 common-law rule was not changed by the New Jersey statute (Gen. St. p. 
 2012) Farrow v. Farrow, 72 N. ,T. Eq. 421, 65 Atl. 1009, 11 I/. R. A. (N. S.) 
 389, 129 Am. St. Rep. 714. 16 Ann. Cas. 507. As to a different rule in the 
 Philippine Islands, see Castillo v. Castillo, 17 Phil. Rep. 517. 
 
 3« Howard v. Menifee, 5 Ark. 668. 
 
 31 The choses in action of a wife belonged to the husband at common law 
 only after he had reduced them to possession. Smith v. Farmers' & Mer- 
 cliants' Nat. Bank, 57 Or. 82, 110 Pac. 410; Williford v. Phelan, 120 Tenn. 
 589, 113 S. W. 365. 
 
 8 2 Co. Litt. 351b; 2 Kent. Comm. 135; Richards v. Richards, 2 Bam. & 
 Adol. 447; Langham y. Nenny, 3 Ves. 467; Scawen v. Blunt, 7 Ves. 294; 
 Wells V. Tyler, 25 N. H. 340; Tritt's Adm'r v. Colwell's Adm'r, 31 Pa. 228; 
 Legg V. Legg, 8 Mass. 99; Needle^ v. Needles, 7 Ohio St. 432, 70 Am. Dec. 
 85; Burleigh v. Coffin, 22 N. H. 118, 53 Am. Dec. 236; In re Kintzinger's 
 Estate, 2 Ashm. (Pa.) 455 ; Poindexter v. Blackburn, 36 N. C. 286 ; Keagy v. 
 Trout, 85 Va. 390, 7 S. Ji 329. In another place it will be seen that by 
 
132 EIGHTS IN PROPERTY AS AFFECTED BY COVERTURE (Ch. 3 
 
 before they have been reduced to possession, they pass to her rep- 
 resentatives.^' If they are reduced to possession during cover- 
 ture, they become, in most cases, absolutely his." The rule ap- 
 plies to choses in action owned by the wife at the time of the mar- 
 riage, as well as to those acquired during coverture. ^° 
 
 What are Choses in Action 
 
 A chose in action has been defined as a right to be asserted by 
 action at law. But the term may include a right to be asserted in 
 equity."' It includes all claims arising from contract, duty, or 
 wrong, to enforce which resort may be had either to an action at 
 law or to a suit in equity.^' The term has never been satisfactorily 
 defined by the courts ; but since all personalty is, either in posses- 
 sion or a chose in action, there is generally little difficulty in deter- 
 mining, in any particular case, whether the personalty in question is 
 a chose in action. Stocks and bonds,^^ bills of exchange and prom- 
 statute, from a very early period, tie husband has been entitled to adminis- 
 ter, on his wife's estate, and to recover the same for his own use, acting as 
 administrator, subject, however, to the payment of her debts contracted 
 before the marriage. In effect, therefore, he does acquire the right to his 
 wife's choses in action, though not reduced to possession in her lifetime ; but 
 he takes the benefit of them burdened with liability for her debts dum sola. 
 Post, p. -183. 
 
 3 3 Meet V. Perrins, L. R. 3 Q. B. 536; "Walker's Adm'r v. Walker's Adm'r, 
 41 Ala. 353 : Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. S5 ; Burleigh 
 V. Coffin, 22 N. H. 118, 53 Am. Dec. 236 ; Tritt's Adm'r v. Oolwell's Adm'r, 31 
 Fa. 228. 
 ^__4±2 Kent. Comra. 135 ; Little v. Marsh, 37 N. C. 18 ; Tritt's ' Adm'r v. 
 Colwell's Adm'r, 31 Pa. 228. Of course, they then become personalty in i>os- 
 session, and subject to the rules laid down in the preceding section. Ante, 
 p. 128. In case of an infant husband, the rule is the same, though he may 
 die before reaching majority. Wyare v. Ware's Adm'r, 28 Grat. (Va.) 670. 
 At common law and prior to the passage of the statutb relating to the prop- 
 erty of married women, a wife's property was not her separate estate, and 
 her personal property, when reduced to possssion by her husband, became 
 absolutely his. Miller v. Koown, 176 Ky. 117, 1,95 S. W. 430; Copeland v. 
 Jordan, 147 Ga. 601, 95 S. E. 13 ; Whiteman v. Whiteman (Del. Super.) 105 
 Atl. 787. 
 
 3 5 Bond V. Conway, 11 Md. 512; Wilder v. Aldrich, 2 R. I. 518; Lenderman 
 V. Talley, 1 Houst. (Del.) 523; Hayward v. Hayward, 20 Pick. (Mass.) 517. 
 See, also, Arnold v. Limeburger, 122 Ga. 72, 49 S. E. 812. As to the effect of 
 modern statutes, see Johnson v. Johnson's Committee, 122 Ky. 13, 90 S. W. 
 964, 121 Am. St. Rep. 449, Cooley Cas. Persons and Domestic Relations, 66. 
 
 so Note 58, infra. 
 
 87 Schouler, Husb. & W. § 153. 
 
 3 8 Brown v. Bokee, 53 Md. 155; Slaymaker v. Bank, 10 Pa. 373; Wells v. 
 Tyler, 25 N. H. 340, Cooley Cas. Persons and Domestic Relations, 64. 
 
§§ 50-51) wipe's choses in action 133 
 
 issory notes,'" and other debts owing to the wife,*" claims for dam- 
 ages for personal injuries, slander, or other torts against the wife,*^ 
 checks and certificates of deposit,*^ are all choses in action within 
 this rule. Though there is some authority to the contrary,*' by the 
 great weight of opinion legacies and distributive shares are also 
 within the rule.** 
 Reduction to Possession 
 
 To vest his wife's choses in action in himself by reduction to pos- 
 session, the husband must exert s ome positive act of dominion ove r 
 them, with the intention of converting them t o his own use .*° The 
 intention to take possession, wittiout actually doing so, is not suffi- 
 cient.*° Nor is the actual taking possession sufficient, if there is no 
 intent to convert to' his own use.*^ Taking possession, however, is, 
 
 s»Gaters v. Madeley, 6 Mees. & W. 423; Hayward v. Haywapd, 20 Pick. 
 (Mass.) 517 ; Phelps v. Phelps, 20 Pick. (Mass.) 556 ; Lenderman v. Talley, 1 
 Houst. (Del.) 523. 
 
 *o Clapp V. Inhabitants, 10 Pick. (Mass.) 463, Cooley Cas. Persons and Do- 
 mestic Relations, 69. 
 
 41 Anderson v. Anderson, 11 Bush (Ky.) 327. 
 
 *2Eodgers v. Bank, 69 Mo. 560. 
 
 43 Holbrook V. Waters, 19 Pick. (Mass.) 354 ; Wheeler v. Bowen, 20 Pick. 
 (Mass.) 563; Albee v. Carpenter, 12 Cush. (Mass.) 382; Griswold v. Penni- 
 man, 2 Conn: 564. 
 
 44 Schouler, Husb. & W. § 153 ; 2 Kent, Oomm. 135 ; Garforth v. Bradley, 
 2 Ves. Sr. 675 ; Carr v. Taylor, 10 Ves. 574 ; Arnold v. Limeburger, 122 Ga. 
 72, 49 S. E. 812, Cooley Cas. Persons and Domestic Relations, 71 ; Tucker v. 
 Gordon, 5 N. H. 564 ; Schuyler v. Hoyle, 5 Johns. Ch. (N. Y.) 196 ; Howard 
 V. Bryant, 9 Gray (Mass.) 239 ; Probate Court v. Nlles, 32 Vt. 775 ; Smilie's 
 Estate, 22 Pa. 130; Wheeler v. Moore, 13 N. H. 478; Curry v. Fulkinson's 
 Ex'rs, 14 Ohio, 100; Keagy v. Trout, 85 Va. 390, 7 S. E. 329; Jones v. Daven- 
 port, 44 N. J. Eq. 33, 13 Atl. 652 ; Hooper v. Howell, 50 Ga. 165. 
 
 45 Blount V. Bestland, 5 Ves. 515; Baker v. Hall, 12 Ves. 497; Parker v. 
 Lechmere, 12 Oh. Div. 256 ; In re Hinds' Estate, 5 Whart. (Pa.) 138, 34 Am. 
 Dec. 542; Mayfleld v. Clifton, 3 Stew. (Ala.) 375; Standeford v. Devol, 21 
 Ind. 404, 83 Am. Dec. 351; Needles v. Needles, 7 Ohio St. 432, 70 Am. Dec. 
 85 ; Brown v. Bokee, 53 Md. 155; Cox v. Scott, 9 Baxt. (Tenn.) 305 ; George 
 V. Goldsby, 23 Ala. 326; Sale v. Saunders, 24 Miss. 24, 57 Km. Dec. 157; 
 Moyer's Appeal, 77 Pa. 482; Grebill's Appeal, 87 Pa. 105; Williams v. Sloan, 
 75 Va. 137 ; Arrington v. Yarbrough, 54 N. 0. 72 ; Hooper v. Howell, 50 Ga. 
 165. 
 
 46 Blount V. Bestland, 5 Ves. 515 ; 1 Bright, Husb. & W. 36. 
 
 47 Baker v. Hall, 12 Ves. 497; Wall v. Tomlinson, 16 Ves. 413; In re • 
 Hinds' Estate, 5 Whart. (Pa.) 138, 34 Am. Dec. 542; Mayfield v. Clifton, 3 
 Stew. (Ala.) 375; Hall v. Young, 37 N. H. 134; Standeford v. Devol, 21 Ind. 
 404, 83 Am. Dec. 351 ; Moyer's Appeal, 77 Pa. 482 ; Miller v. Aram, 37 Wis. 
 142; Barber v. Slade, 30 Vt. 191, 73 Am. Dec. 299; Barron v. Barron, 24 Vt. 
 375. A husband exercising his common-law right during coverture to acquire 
 title to his wife's choses in action must intend by the act whereby he possess- 
 
134 EIGHTS IN PROPERTY AS AFFECTED BY COVEETUEB (Ch. 3 
 
 in the absence of evidence to the contrary, presumed to be with 
 such an intent, and a reduction to possession.** 
 
 "That reduction into possession which made the chose absolutely, 
 as well as potentially, the husband's, was a reduction into posses- 
 sion not of the thing, but of the title to it." *" As to what acts are 
 to be deemed a suflficient reduction to possession of his wife's chose 
 in action by a husband. Chancellor Kent says : ^° "The rule is that, 
 if the husband appoints an attorney to receive the money, and 
 he receives it ; ^^ or if he mortgages the wife's choses in action, or 
 assigns them without reservation, for a valuable consideration ; ^^ 
 or if he recovers her debt by a suit in his own name ; or if he re- 
 leases the, debt by taking a new security in his own name — in all 
 these cases, upon his death, the right of survivorship in the wife 
 to the property ceases. And if the husband obtains a judgment or 
 decree as to money to which he was entitled in right of his wife, 
 and the suit was in his own name alone, the property vests in him 
 by the recovery, and is so changed as to, take away the right of 
 survivorship in the wife. If the suit was in their joint names, and 
 he died before he had reduced the property to possession, the wife, 
 
 es himself of the property to make it his own ; otherwise it remains hers. 
 Southern Bank of Fulton v. Nichols, 235 Mo. 401, 138 S. W. 881". Possession 
 by husband as administrator de bonis non of estate to which wife was en- 
 titled is not such a possession as would vest ownership in him, as the posses- 
 sion must be by virtue of the marital relation. Hauser v. Murray, 256 Mo. 
 58, 165 S. W. 376. That a husband who had a certificate of deposit made 
 payable to himself and wife retained it in his possession does not show a 
 reduction to possession destroying the wife's rights of survivorship. Smith 
 V. Haire, 133 Tenn. 343, 181 S. W. 161, Ann. Gas. 1916D, 529. A husband, 
 taking his wife's personal property and using it in the purchase of a farm, 
 and taking title in her name with reversion to his heirs, thereby reduced it 
 to possession. Neel's Ex'rv. Noland's Heirs, 166 Ky. 455, 179 S. W. 430. 
 
 *8 Johnston's Adm'rs v. Johnston, 1 Gr^nt, Gas. (Pa.) 468; In re Hinds' 
 Estate, 5 Whart. (Pa.) 138, 34 Am. Dec. 542. 
 
 loTritt V. Colwell, 31 Pa. 228. 
 
 50 2 Kent, bomm. 137. 
 
 51 As to receipt by attorney or agent, see Turton v. Turton, 6 Md. 375; 
 Alexander v. Crittenden, 4 Allen (Mass.) 342. The agent or attorney must 
 be acting for the husband, and not for the wife, nor for the husband and 
 wife. See Fleet v. Perrins, L. R. 3 Q. B. 536; Hill v. Hunt 9 Gray 
 (Mass.) 66. 
 
 52 Carteret v. Paschal, 3 P. Wms. 197; Bates v. Dandy, 2 Atk. 206; Jewson 
 V. Moulson, Id. 417; Schuyler v. Hoyle, 5 Johns. Ch. (N. Y.) 196; Kenny v. 
 Udall, 5 Johns. Ch. (N. Y.) 464 ; Udell v. Kenney, 3 Cow. (N. Y.) 5.90 ; Lowry 
 V. Houston, 3 How. (Miss.) 394 ; Case of Siter, 4 Rawle (Pa.) 468; Tritt's 
 Adm'r v. Colwell's Adni'r, 31 Pa. 228. It is otherwise where there is no con- 
 sideration for the assignment. Burnett v. Klnnaston, 2 Vern. 401 ; Hartman 
 
§§ 50-51) wife's choses in action 135 
 
 as survivor, would take the benefit of recovery."^ * * * If he 
 takes possession in the character of trustee, and not of husband, it 
 is not such a possession as will bar the right of the wife to the 
 property if she survives him. The property must come under the 
 actual control and possession of the husband, quasi husband, or 
 the wife will take, as survivor, instead of the personal representa- 
 tives of the husband." 
 
 Assignees in bankruptcy of the husband possess the same rights 
 as the husband to reduce the wife's choses in action to possession, 
 but they possess no greater rights ; and, if the husband dies before 
 they have reduced them to possession, they survive to the wife.^* 
 
 Reduction to possession of a part of a claim due the wife is not 
 a reduction of the whole, so as to bar the. wife's right, as Survivor, 
 to the residue. Collection of interest, for instance, is not a reduc- 
 tion of the principal to possession.^" The same is true of the re- 
 ceipt of a partial payment on the principal,"" the receipt of divi- 
 dends on stock,"' etc. ^ ! 
 
 Wife's Bquity to a Settlenient 
 
 Whenever it was necessary for the husband, or one claiming- in 
 his right, as an assignee, for instance, to ask the aid of a court of 
 equity to reduce the wife's personalty to possession, the court, in 
 pursuance of the principle that he who seeks equity must do equity, 
 required of the husband that he make a suitable settlement for the 
 maintenance of the wife and children, unless they were already 
 sufficiently provided for. This right of the wife is called the wife's 
 equity to a settlement, or the wife's equity."* There is ihuch doubt 
 
 V. Dowdel, 1 Eawle (Pa.) 279. Indorsement and transfer of bill or note. 
 Mason v. Morgan, 2 Add. & E. 30.; Evans v. Secrest, 3 Ind. ^45. 
 
 53 Hilllard v. Hambridge, Aleyn, 86 ; McDowl v. Charles, 6 Johns. Ch. (N. 
 Y.) 132; Searing v. Searing, 9 Paige (N. Y.) 283. 
 
 5*2 Kent, Conun. 138; Mitford v. Mitford, 9 Ves. 87; Van Epps v. Van 
 Deusen, 4 Paige (N. Y.) 64, 25 Am. Dec. 516; Outcalt v. Van Winlde, 2 N. 
 J. Eq. 516. 
 
 5 5Howman v. Corie, 2 Vern. 190; Stan wood v. Stanwood, 17 Mass. 57; 
 Dunn V. Sargent, 101 Mass. 336. 
 
 56 Nash V. Nash, 2 Madd. 133. 
 
 6 7 Dunn V. Sargent, 101 Mass. 336. 
 
 58 2 Kent, Comm. 135-143 ; Story, Eq. Jur. § 1402 et seq. ; Kenny v. Udall, 
 5 Johns. Ch. (N. Y.) 464; Udell v. Kenney, 3 Cow. (N. Y.) 590; Parsons v. 
 Parsons, 9 N. H. 309, 32 Am. Dec. §62 (ah elaborate examination Into the his- 
 tory and doctrine of the wife's equity) ; Howard v. Moffatt, 2 Johns. Ch. (N. 
 Y.) 206; Duvall v. Bank, 4 Gill & J. (Md.) 282, 23 Am. Dea 558; WWtesides 
 
136 EIGHTS IN PROPERTY AS AFFECTED BT COVERTURE (Ch. 3 
 
 and conflict as to the circumstances under which a court of equity 
 can thus interfere to compel a provision for the wife out of her 
 property. Story says: "The principal, if not the sole, cases, in 
 which courts of equity now interfere to secure the wife her equity 
 to a settlement are: First, where the husband seeks aid or relief 
 in regard to her property ; secondly, where he makes an assignment 
 of her equitable interests; thirdly, wh^re she seeks the like relief 
 as plaintiff against her husband or his assignees in regard to her 
 equitable interests." °' The last class includes the first two in ef- 
 fect, for, if she may proceed against him, or his assignees, in all 
 cases, it covers the whole ground."" While there are some cases 
 which seem to limit the power of courts of equity, in enforcing the 
 wife's equity, to cases in "which the husband or his assignee is seek- 
 ing the aid of the court to reduce the wife's property to posses- 
 sion, the great weight of authority is against any such limitation, 
 and in favor of the statement which is above quoted from Story. In 
 an early New York case it was said : "If the husband can lay 
 . hold of the property without the aid of a court of equity, he may do 
 it; the court has not the means of enforcing a settlement by inter- 
 fering with his remedies at law." "^ And there are other state- 
 ments to the same effect. °^ In a later New York case, however. 
 Chancellor Kent said : 'It is now understood to be settled that the 
 wife's equity attaches upon her personal property when it is sub- 
 ject to the jurisdiction of the court, and is the object of the suit, 
 into whosesOever's hands it may have come, or in whatever man- 
 ner it may have been transferred. The same rule 'applies whether 
 the application be by the husband or his representatives or assign- 
 ees to obtain possession of the property, or whether it be by the 
 wife or her trustee, or by any person partaking of that character, 
 praying for that provision out of that property." '^^ This broader 
 jurisdiction of courts to enforce the wife's equity is amply support- 
 ed by authority."^ 
 
 V. Dorris, 7 Dana (Ky.) 106; Perryelear v. Jacobs, 2 Hill, Eq. (S. C.) 509; 
 Dearin v. Pitzpatrick, Meigs (Tenn.) 551. 
 
 5 2 Story, Eq. 6.33. 
 
 «» Parsons v. Parsons, 9 N. H. 309, 32 Am. Dec. 362. 
 
 81 Howard v. Mofeatt, 2 Johns. Ch. (N. Y.) 206. 
 
 02 See Bryan v. Bryan, 16 N. O. 47. 
 
 63 Kenny v. Udall, 5 Johns. Ch, (N. Y.) 464; tFdell v. Kenne'y, 3 Cow (N 
 Y.) 590. 
 
 64 2 Kent, Comm. 139-142; Dumond v. Magee, 4 Johns, Ch. (N. Y.) 318; 
 
§§ 50-51) wife's choses in action 137 
 
 The jurisdiction extends to restraining the husband, or one claim- 
 ing in his right, as assignee or otherwise, from obtaining possession 
 of the wife's property by an action at law, and thereby defeating 
 her equity to a settlement. As was said by Chancellor Walworth : 
 "If the wife is entitled to' such an equity upon a bill filed by a 
 husband or his assignee, or by a third person, as all the cases upon 
 this subject admit, I see no valid objection in principle against 
 granting her similar relief where the husband, or the general as- 
 signee in bankruptcy, is endeavoring to deprive her of that equity 
 by an unconscientious proceeding at law." "^ It is well settled that 
 the wife's equity may be enforced against assignees of the hus- 
 l)and.«« 
 
 This protection to the wife by enforcing a settlement out of her 
 property cannot be afforded in some of the states, either because 
 there is no court of chancery, or because the court upon which 
 equity jurisdiction has been conferred is limited in its powers, so 
 that it cannot exercise full equity jurisdiction.*^ 
 
 A wife may waive her equity to a settlement, if she does so apart 
 from her husband, and under the direction of the court.** And she 
 loses the right thereto if she is guilty of adultery.*" No allowance 
 will be made to her out of her property, if her husband has made 
 an adequate settlement upon her.'"* 
 
 Dearin v. Fitzpatrick, Meigs (Tenn.) 551; Salter v. Salter, 80 Ga. 178, 4 
 S. E. 391, 12 Am. St. Kep. 249. 
 
 «5Van Epps v. Van Deusen, 4 Paige (N. Y.) 74, 25 Am. Dec. 516. For 
 cases in which the court has interfered by restraining the husband or his 
 assignee from proceeding in a court of law or probate to reduce a debt or 
 legacy due the wife to his possession, etc., see 2 Kent, Oomm. 139-142; Pry 
 V. Fry, 7 Paige (N. T.) 462; Dumond v. Magee, 4 Johns. Ch. (N. Y.) 318. 
 
 66 2 Story, Eq. Jur. § 1412; Moore v. Moore, 14 B. Mon. (Ky.) 259. 
 
 6'Yohe V. Barnet, 1 Bin. (Pa.) 358; In re Miller's Estate, 1 Ashm. (Pa.) 
 323 ; Parsons v. Parsons, 9 N. H, 309, 32 Am. Dec. 362 ; Allen v. Allen 41 N 
 O. 293. 
 
 6 8Schouler, Husb. & W. § 162; Coppedge v. Threadgill, 3 Sneed (Tenn.) 
 577. 
 
 6»Ball V. Montgomery, 2 Ves. Jr. 191; Fry v. Fry, 7 Paige (N. X.) 462; 
 Carter v. Carter, 14 Smedes & M. (Miss.) 59. 
 
 70 2 Kent, Comm. 142, 143. 
 
138 EIGHTS IN PROPERTY AS AFFECTED BY COVERTURE (Ch. 3 
 
 ADMINISTRATION OF WIFE'S ESTATE 
 
 52. Under very early statutes, and perhaps even at common law, 
 the husband is entitled to administer on his wife's estate. 
 He may, as administrator, recover her choses in action for 
 his own benefit; but he takes subject to her debts con- 
 tracted dum sola. 
 
 As has just been shown, if the wife dies, leaving her husband 
 surviving her, before he has reduced- her chose in action to posses- 
 sion, it goes to her personal representative.''^ The husband, there- 
 fore, does not take it strictly as survivor. Because of another doc- 
 trine, however, he does acquire it in effect. He is entitled to re- 
 cover it to his own use, by acting as her administrator. Her 
 personal property in possession goes to him, as has been seen, as 
 survivor strictly, and not as her administrator, for such property 
 vests in him absolutely.''^ Her choses in action not reduced to 
 possession by him before her death he must recover as her admin- 
 istrator. When he has so recovered them, he is entitled to take 
 them for his own use, jure mariti.''^ It has been said that this 
 right probably existed at common law.''* At any rate, it was con- 
 ferred by statute at an early period. It was given in England by 
 the statute of distributions of 22 & 23 Car. II. and the twenty-fifth 
 section of the statute of- 29 Car. II. c. 3, in explanation thereof ; 
 and these statutes were substantially re-enacted in this country.''^ 
 
 This right of the husband extends to choses in action which were 
 settled to the separate use of the wife, unless previously disposed 
 
 71 Ante, p. 131. 72 Ante, p. 128. 
 
 73 2 Bl. Oomm. 515; 2 Kent, Comm. 136; Watt v. "Watt, 3 Ves. 244; Gar- 
 forth V. Bradley, 2 Ves. Sr. 675; Richards v. Richards, 2 Barn. & Adol. 447; 
 Wliitaker v. Whitaker, 6 Jolins. (N. T.) 112; Hoskins v. Miller, 13 N. C. 360; 
 Humphrey v. Bullen, 1 Atk. 458; Squib v. Wyn, 1 P. Wins. 380; Judge of 
 Probate v. Chamberlain, 3 N. H. 129. 
 
 74 2 Bl. Comm. 515, 516; Hoskins v. Miller, 13 N. C. 360. 
 
 7 B "The foundation of this claim has been va,riously stated. By some it 
 is said to be derived from St. 31 Edw. III., on the ground of the husband's 
 being 'the next and most la-wful friend' of his wife, while there are other 
 authorities which insist that the husband Is entitled at common law, jure 
 mariti, and independently of the statute. But the right, however founded, is 
 now unquestionable, and is expressly confirmed by St. 29 Car. II. c. 3." 
 1 Williams, Ex'rs, 410. See Judge of Probate v. Chamberlain, 3 N. H. 129. 
 Kent, however, bases the right on the statutes of 22 & 23 Car. II., and 29 
 Car. II. c. 3, § 25, as stated in the text. 
 
§ 53) wipe's chattels real 139 
 
 of by her, for her separate estate lasts only during coverture.'" 
 The right is subject to this qualification: that the estate of the 
 wife is liable to the payment of her debts contracted dum sola, 
 and the husband takes subject to this liability.^' 
 
 In many of the states this doctrine has been abolished by statute, 
 and the husband, if he administers on his wife's estate, must ac- 
 count. He cannot recover for his own use.''* 
 
 WIFE'S CHATTELS REAL 
 
 53. The husband has the enjoyment of his wife's chattels real — 
 leases and terms for years — during his life, with the power 
 to dispose of and incumber them, and they are liable for 
 his debts. If undisposed of on his death, they go to the 
 wife. On the wife's death they go to him. 
 
 Leases and terms for years are known as "chattels real." The 
 husband is entitled to the enjoyment of his wife's chattels real, 
 and may sell, assign, mortgage, or otherwise dispose of them dur- 
 ing his life,^" and they are liable for his debts.*" He cannot dis- 
 pose of them by will so as to debar a surviving wife, though his 
 disposition by will is valid if his wife is not the survivor,*^ The 
 wife's chattels real which have not been appropriated by the hus- 
 band during his life, or taken by his creditors, belong to the wife 
 in her own right, if she is the survivor, like her choses in action, 
 and belong absolutely to the husband, if he is the survivor, like 
 her personalty in possession.*^ 
 
 76 2 Macq. Hiisb. & W. 288; Sehouler, Husb. & W. § 196; Proudley v. 
 BUelder, 2 Mylne & K. 57; Eansom v. Nichols, 22 N. Y. 110. 
 
 77 2 Kent. Comm. ,136; Heard v. Stamford, 3 P. Wms. 409; Donnington v. 
 Mitchell, 2 N. J. Eq. 243. 
 
 7 8 Curry v. Fulklnson's Bx'rsj 14 Ohio, 100; Baldwin v. Carter, 17 Conn. 
 201, 42 Am. Dec. 735. And see Leakey v. Maupin, 10 Mo. 368, 47 Am. Dec.' 
 120. See, also, post, p. 183. 
 
 79 Co. Lltt. 36b; 2 Kent, Oomm. 135; Grute v. Locroft, Cto. Ellz. 287; 
 Jackson v. McConnell, 19 Wend. (N. Y.) 175, 32 Am. Dec. 439. 
 
 80 2 Kent, Comm. 135; Miles v. Williams, 1 P. Wms. 258. 
 
 81 Co. Litt. 351a; 2 Kent, Coram. 135; Garforth v. Bradley, 2 Ves. gr. 675; 
 Schuyler v. Hoyle, 5 Johns. Ch. (N. T.) 196; Parsons v. Parsons, 9 N. H. 309, 
 32 Am. Dec. 387. 
 
 82 Co. Lltt. 351a ; 2 Kent, Comm. 135 ; Doe v. Polgrean, 1 H. Bl. 535. 
 
140 EIGHTS IN PROPERTY AS AFFECTED BY COVERTURE (Ch. 3 
 
 WIFE'S ESTATES OF INHERITANCE 
 
 54. The husband acquires by marriage the usufruct of his wife's 
 estates q£ inheritance 
 
 (a) During coverture, and 
 
 (b) When there is issue of the marriage bom alive, then for life, 
 
 as tenant by the curtesy. 
 
 Where at the time of marriage or during coverture a woman 
 is seised of an estate of inheritance in land, the husband is entitled 
 to its usufruct. His estate lasts at least during coverture; and in 
 case there is issue of the marriage born alive capable of inheriting 
 her estate, his estate continues as tenant by the curtesy initiate 
 during the wife's life, and as tenant by the curtesy consummate, 
 after her death, for the remainder of his life.*' The husband's 
 estate extends only to the use of the land. He is entitled to the 
 
 83 Co. Litt. 351a; 2 Bl. Oomm. 126; 2 Kent, Comm. 130; Beale v. Knowles, 
 45 Me. 479; Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 740; Butterfield v. 
 Beall, 3 Ind. 203; Junction R. Co. v. Harris, 9 Ind. 184, 68 Am. Dee. 618; Van 
 Duzer v. Van Duzer, 6 Paige (N. Y.) 366, 31 Am. Dec. 257 ; Utchfield v. Cud- 
 worth, 15 Pick. (Mass.) 23 ; Thomas v. Sheppard, 2 McOord, Eq. (S. C.) 36, 
 16 Am. Dec. 632; Abies v. Abies, 86 Tenn. 333, 9 S. W. 692; Clarke's Ap- 
 peal, 79 Pa. 376 ; Rogers v. Brooks, 30 Ark. 612 ; Laidley v. Land Co., 30 W. 
 Va. 505, 4 S. E. 705 ; Sharpe v. Baker, 51 Ind. App. 547, 96 N. E. 627, 99 N. B. 
 44 ; Bishop v. Readsboro Chair Mfg. Co., 85 Vt. 141, 81 Atl. 454, 36 L. R. A. 
 (N. S.) 1171, Ann. Cas. 1914B, 1163; Arnold v. Umeburger, 122 Ga. 72, 
 49 S. E. 812, Cooley Cas. Persons and Domestic Relations, 71 ; Winestiae v. 
 Ziglatzki-Marks Co., 77 Conn. 404, ,^9 Atl. 496. In Van Duzer v. Van Duzer, 
 supra, it was held that the court cannot, even in equity, interfere with the 
 husband's rights as tenant by the curtesy initiate, even where the husband 
 is Improvident, and to allow him to dispose Of his interest, or to allow it to 
 be taken by his creditors, would expose the wife and children to beggary. 
 There are four requisites of an estate by the curtesy, namely: (1) Marriage, 
 (2) seisin of the wife,, (3) birth of issue alive, and (4) death of the wife. 
 During the wife's life, after issue born alive, the husband is said to be ten- 
 ant by the curtesy initiate. It is only upon her death that he becomes ten- 
 ant by the curtesy consummate. Breeding v. Davis, 77 Va. 639, 46 Am. Rep. 
 740. The estate of the husband as tenant by the curtesy has been abolished 
 in some states, but not in all. See, for example, Code Civ. Proc. S. O. 1902, 
 § 2670." As to the effect of the married women's acts, see Breeding v. Davis, 
 supra. The husband's common-law estate jure uxoris has been so material- 
 ly modified by legislative enactments that only a bare privilege is left to the 
 husband to rent out his wife's land and to collect the rents for the benefit of 
 the family in the capacity of governor of the family and not for himself indi- 
 vidually, Henderson Grocery Co. v. Johnson, 141 Tenn. 127, 207 S. W. 728. 
 
§ 54) wipe's estates of inheritance 141 
 
 rents, issues, and profits,'* and upon his death the emblements 
 growing upon the land go to his representatives.'" 
 
 He may alienate the land, so as to convey his interest.'^ At 
 common law, alienation by feoffment of a greater estate than that 
 to which he was entitled forfeited his estate; '^ but this doctrine is 
 not now recognized to any extent, if at all. His deed conveys 
 whatever interest he has.'' He cannot in any way alienate the 
 land so as to cut off the rights of the wife and her heirs on the 
 termination of his estate by his death before the wife or by di- 
 vorce.'" He may also incumber the property, but only to the ex- 
 tent of his estate therein. On his death his wife or her heirs take 
 clear from any incumbrance made by him.^" The husband's iriter- 
 est in his wife's realty is liable for his debts, and may be taken 
 aod sold on execution."^ But any such sale is subject to the rights 
 of the wife or her heirs on. the husband's death or a divorce."^ 
 
 For any injury to the profits, or to the mere possession, of the 
 land, the husband may sue in his own name."' But, as his es- 
 
 84 Co. Litt, 29a; 2 Kent, Oomm. 130; Clapp v. Inhabitants, 10 Pick. (Mass.) 
 463, Cooley Gas. Persons and Domestic Relations, 69; Jones v. Patterson, 11 
 Barb. (N. Y.) 572. 
 
 85 2 Kent, Oomm. 131 ; Reeve, Dom. Rel. 31, 32; Weems v. Bryan, 21 Ala. 
 302; Spencer v. Lewis, 1 Houst. (Del.) 223. The husband's tenant has the 
 same right upon the husband's death. Rowney's Case, 2 Vern. 322; Gould 
 V. Webster, 1 Tyler (Vt.) 409. 
 
 86 2 Kent, Comrfl. 133; Trask v. Patterson, 29 Me. 502; Dejarnatte v. 
 Allen, 5 Grat. (Va.) 499; Miller v. Shackleford, 3 Dana (Ky.) 291. 
 
 8 7 Co. Litt. 251b, 252a; 2 Inst. 309; 4 Kent, Comm. 83; 1 Washb. Real 
 Prop. 142; French v. Rollins, 21 Me. 372. 
 
 88 Miller v. Shackleford, 3 Dana (Ky.) 291 ; Meraman's Heirs v. Caldwell's 
 Heirs, 8 B. Men. (Ky.) 32, 46 Am. Dec. 537; Flagg v. Bean, 25 N. H. 49, 63; 
 Dennett v. Dennett, 40 N. H. 505 ; Miller v. Miller, Meigs (Tenn.) 484, 33 Am. 
 Dec. 157 ; Butterfleld v. Beall, 3 Ind. 203 ; Munnerlyn v. Munnerlyn, 2 Brev. 
 (S. C.) 2 ; McKee's Lessee v. Pfout, 3 Dall. (Pa.) 486, X L. Ed. 690. 
 
 8 9 Cases cited above, and Huff v. Price, 50 Mo. 228; Barber v. Root, 10 
 Mass. 260 ; Jones v. Carter, 73 N. C. 148. 
 
 00 2 Kent, Comm. 133; Goodright v. Straphah, 1 Oowp. 201; Drybutter v. 
 Bartholomew, 2 P.' Wms. 127 ; Miller v. Shackleford, 3 Dana (Ky.) 291 ; Bar- 
 ber V. Harris, 15 Wend. (N. Y.) 615 ; Kay v. Whittaker, 44 N. Y. 565 ; Boy- 
 kin V. Rain, 28 Ala. 332, 65 Am. Dec. 349. 
 
 912 Kent, Comm. 133; 1 Washb. Real Prop. 141; Van Duzer v. Van Du- 
 zer, 6 Paige (N. Y.) 366, 31 Am. Dec. 257; Litchfield v. Cudworth, 15 Pick. 
 (Mass.) 23. 
 
 82 Mattocks V. Stearns, 9 Vt. 326 ; Canby's Lessee v. Porter, 12 Ohio, 79 ; 
 Sale V. Saunders, 24 Miss. 24, 57 Am. Dec. 157; Babb v. Perley, 1 Greenl.. 
 (Me.) 6; Barber v. Root, 10 Mass. 260. 
 
 93 2 Kent, Comm. 131; Tallmadge y. Grannis, 20 Conn. 296; Alexander v. 
 Piard, 64 N. Y. 228. 
 
142 EIGHTS IN PEOPBETY AS AFFECTED BY COVEETURB (Ch. .3 
 
 tate is merely usufructuary, his wife must join in a suit for an 
 injury to the inheritance. °* He cannot himself impair the inherit- 
 ance, as by committing waste. If he does so, the coverture would 
 prevent the wife from suing him at common law. to recover dam- 
 ages; °^ but he would be liable in an action at law by the heir."* 
 And a court of equity would enjoin him in a suit by the wife for 
 that purpose."^ 
 
 Where the real property of the wife is sold by her husband and 
 herself, and converted into money or choses in action, these pro- 
 ceeds do not retain the character of realty, but become personalty, 
 and subject to the rules governing the wife's personalty in posses- 
 sion, or her choses in action, ac(fording to the character of the 
 proceeds.'* This is also true where the conversion is by operation 
 of law.*" 
 
 WIFE'S ESTATES FOR LIFE 
 
 55. The husband, in right of his wife, becomes seised of her life 
 estates, whether for her own life or for the life of another. 
 
 If the wife at the time of her marriage has an estate for life, or ' 
 for the life of another person, the husband becomes seised of such 
 an estate in right of his wife, and is entitled to the profits. On the 
 death of the wife, the estate for her own life ceases, and, of course, 
 the' husband has no further interest. If she has an estate for the 
 life of some other person, who survives her, the husband becomes 
 a special occupant of the land during the life of such other person. 
 The husband can dispose of or incumber the estate to the extent 
 
 »4 2 Kent, Comm. 131 ; Weller v. Baker, 2 Wils. 414, 423 ; Thacher v. Phln- 
 ney, 7 Allen (Mass.) 146 ; Illinois Cent. R. Co. v. Grable, 46 111. 445 ; Wyatt 
 V. ^impson, 8 W. Va. 394.' 
 
 s>5 2 Kent, Comm. 131 ; 1 Washb. Real Prop. 118. She could sue a creditor 
 ot the husband, who has taken the land, on execution, and could sue the 
 husband's assignee or grantee.' Babb v. Perley, 1 Greenl. (Me.) 6; Mattocks 
 V. Stearns, 9 Vt. 326. 
 
 98 It seems that the heir cannot sue the assignee of the husband for waste, 
 because of want of privity. See. 2 Kent, Comm. 131 ; Walker's Case, 3 Coke, 
 22 ; Bates v. Shraeder, 13 Johns. (N. T.) 260. 
 
 »7 2 Kent, Comm. 131; 1 Washb. Real Prop. 125; Stroebe v. Fehl, 22 Wis. 
 337; Porch v. Fries, 18 N. J. Eq. 204. 
 
 8 8 Barber v. Slade, 30 Vt. 191, 73 Am. Dec. 299; Hall v. Young, 37 N. H. 
 134 ; Johnson v. Bennett, 39 Barb. (N. X.) 237 ; Thomas v. City of Chicago! 
 55 111. 403. 
 
 09 Graham v. Dickinson, 3 Barb. Ch. (N. Y.) 170; Jones v. Plummer 20 
 Md. 416. 
 
§§ 56-57) MODIFICATION OF COMMON-LAW BnLES 143 
 
 of his interest in it. His representatives take as emblements the 
 crops growing at his death.^ 
 
 MODIFICATION OF COMMON-LAW RULES 
 
 56. The common-law rules as to the rights of the husband to the 
 
 property of the wife have been modified. 
 
 (a) In equity, when by agreement with her htisband a married 
 
 woman becomes a sole trader. 
 
 (b) In equity, by creating the equitable separate estate of mar- 
 
 ried women. 
 
 57. By modem statutes in all the states certain property owned or 
 
 acquired by married women, and in some states all the 
 property owned or acquired by them, remains their sep- 
 arate property. 
 
 Wife as Sole Trader ' 
 
 The common-law rule, giving the husband an absolute right to 
 his wife's earnings, is so far modified in equity that by the aid of 
 equity she is enabled to carry on a separate trade or business, and 
 hold the property connected with such trade or business, and the 
 profits therefrom, to her separate use. When a husband has agreed 
 with his wife that she may carry on a separate trade for her own 
 use and benefit, equity will protect the wife's interests, and treat 
 Ihe husband, when no trustees have been appointed, as trustee 
 for the wife as to her stock in trade and the profits of the business. 
 In another chapter this doctrine will be considered more at length.^ 
 
 Equitable Separate Estate 
 
 As will be explained in a subsequent chapter, in order to mitigate 
 the hardships arising from the rules of the common law giving 
 to the husband rights in his wife's property, equity has created a 
 doctrine by which a married woman may acquire and hold a sep- 
 arate estate, both real and personal, independently of her husband, 
 and free from his control. For this purpose equity treats inarried 
 women, in relation to their separate property, as if sole. The doc- 
 trine is a creature of equity only, and is unknown to the common 
 law.' 
 
 1 2 Kent, Comm. 134, . « Post, p. 162. * See post, p. 185. 
 
144 RIGHTS IN PROPERTY AS AFFECTED BY COVERTURE (Ch; 3 
 
 Statutory Separate Estate 
 
 In all of the states, statutes have been enacted changing the 
 common-law rules in so far as they give the husband rights in his 
 wife's property. In none of the states is the old common law in 
 force to the full extent. Perhaps by statute in all the states the real 
 property Owned by a woman at the time of her marriage remains 
 her separate property. In many states real property acquired by 
 her after marriage by descent, devise, or purchase, and in some 
 states real property acquired by her in any way, becomes and 
 remains her separate property. In most states the personal prop- 
 erty owned by a woman at the time of her marriage remains her 
 separate property. In most states, also, personal property acquired 
 by her after marriage, hy bequest or descent, and in some states by 
 purchase, becomes and remains her separate property. The effect 
 of these statutes will be considered at length in a subsequent chap- 
 ter.* 
 
 WIFE'S RIGHTS IN HUSBAND'S PROPERTY 
 
 58. At the death of the husband the wife is entitled at common law, 
 or under an early English statute, or similar statutes in 
 this country — 
 
 (a) As her dower, at common law, to one-third of all lands of 
 
 which he was seised at any time during the coverture, and 
 which her issue might have inherited. 
 
 (b) As her thirds, if the husband died intestate, under the stat- 
 
 ute of 22 & 23 Car. II. c. 10, to one-third of his personal 
 property, if he left children or their issue living; other- 
 wise to one-half. 
 
 Corresponding to the husband's rights by curtesy, the surviv- 
 ing wife has in most states certain rights in her husband's lands, 
 known as dower.^ She is entitled, as her dower, to one-third of all 
 lands and, tenements of which her husband was seised at any time 
 during the coverture," and which any issue which she might have 
 
 4 Post, p. 192. 
 
 6 Dower has Deen abolished in some states. See, for example, Code Iowa 
 1897, § 3366; Laws Colo. 1903, p. 469, § 1; Laws Neb. 1907, p. 197, c. 49. 
 
 In Tennessee (Shannon's Code 1896, § 4139) and Vermont (P. St. 1906, § 
 2921) the widow has dower only in the lands of which the husband was 
 seised at the time of his death. So, too, in some states a nonresident widow 
 has dower only in the lands of which the husband was .seised at the time of 
 
§ 58) 'wipe's eights in husjjand's property 145 
 
 had could have inherited.'' Dower and curtesy differ in important 
 particulars, and principally in that dower is independent of the birth 
 of issue. 
 
 But, corresponding to this essential of curtesy is the restriction 
 that the wife can be endowed of such lands only as her issue might 
 have inherited. Thus, where the husband is seised of lands entail- 
 ed in favor of the heirs of a particular woman, the issue of a sec- 
 ond wife could not inherit, and she has no right of dower in such 
 lands. A further important difference between dower and curtesy 
 is that in some states by statute dower is not restricted to the life 
 of the wife, but is absolute,' though extending to only one-third of 
 her husband's real estate. At common law it is only a life estate. 
 Before the death of the husband, the wife has an inchoate interest, 
 which may ripen into dower, and any alienation by the husband 
 will be subject to such interest,' unless, as she is very generally al- 
 lowed by statute to do, she joins him in the conveyance for the 
 purpose of barring h\er dower. In some states, by statute, on a 
 judicial sale of a husband's real estate vesting an absolute title in 
 the purchaser, the wife's inchoate interest vests as it would on his 
 death.i" 
 
 Under St. 22 & 23 Car. II, c. 10, which is the basis of the stat- 
 utes of distribution in this country, and which has been closely 
 followed in many of the states, the widow was entitled, in case of 
 her husband dying intestate, 16 one-third of his personal property, 
 after payment of his debts, in case he left children or their issue 
 surviving, and, in default of surviving children or their issue, to 
 one-half. In the latter case the remaining half went to the hus- 
 band's next of kin, if any; otherwise to the crown. '^^ In many 
 states statutes have been enacted, varying more or less in the dif- 
 ferent states, changing the common-law rules. 
 
 his death. Michigan: Comp. Laws 1897, § 8938 ; Ligare v. Semple, 32 Mich. 
 438. Wisconsin: St. 1898, § 2160; Bennett v. Harms, 51 Wis. 251, 8 N. W. 
 222. Oregon: B. & C. Oomp. § 5535; Thornburn v. Doscher (O. C.) 32 Fed. 
 811. 
 
 7 2 Bl. Oomm. 130 ; DicMn v. Hamer, 1 Drew. & S. 284. 
 
 8 In Iowa (Code 1897, § 3366) and in Minnesota (Rev. Laws 1905, § 3648) 
 the widow takes Ifer distributive share in lieu of dower, in fee. 
 
 9 2 Bl. Comm. 132 ; Lowe v. Walker, 77 Ark. 103, 91 S. W. 22. 
 
 10 Elliott V. Oale, 113 Ind. 383, 14 N. E. 708, 16 N. E. 390. 
 
 1,12 Bl. Comm. 515; 2 Kent, Comm. 427; Cave v. Roberts, 8 Sim. 214. 
 TirF.P.& D.Rbl.(3d Ed.)— 10 
 
14:6 EIGHTS IN PROPEKTY AS AFFECTED BY OOVEETUKE Ch. 3 
 
 ESTATES BY THE ENTIRETY 
 
 59. When land is conveyed or devised to hustand and wife jointly, 
 they take as tenants by the entirety. Each is seised of the 
 whole, and the land goes to the survivor. This doctrine 
 has been abolished iii some states by statute. 
 
 Where land is conveyed or devised to husband and wife joint- 
 ly, they take, at common law, not as joint tenants or tenants in 
 common, but as tenants by the entirety.^^ Neither of them has an 
 
 12 2 Kent, Comm. 132; Marshall v. Lane, 27 App. D. C. 276; Oliver v. 
 Wright, 47 Or. 322, 83 Pac. 870 ; Naler v. Ballew, 81 Ark. 328, 99 S. W. 72 ; 
 Booth V. Fordham, 100 App. IDlv. 115, &1 N. T. Supp. 406, affirmed in 185 N. 
 r. 535, 77 N. B. 1182; Wilson v. Frost, 186 Mo. 311, 85 S. W. 375, 105 Am. 
 St Rep. 619, 2 Ann. Gas. 557 ; Wales v. Coffin, 13 Allen (Mass.) 213 ; Fisher 
 V. Provin, 25 Mich. 347; Vinton v. Beamer, 55 Mich. 559, 22 N. W. 40; McDuff 
 V. Beauchamp, 50 Miss. 531 ; Bates v. Seely, 46 Pa- 248 ; Zorntlein v. Bram, 
 100 N. Y. 12, 2 N. E. 388; Bertles v. Nunan, 92 N. Y. 152, 44 Am. E«p. 361; 
 Wright V. Saddler, 20 N. Y. 320 ; Healey Ice Machine Co. v. Green (G. O.) 
 181 Fed. 890, affirmed 191 Fed. 1004, 111 0. C. A. 668; English v. English, 6(8 
 Fla. 427, 63 South. 822; Dotson v. Faulkenburg, 186 Ind. 417, 116 N. E. 577; 
 Hoag V. Hoag, 213 Mass. 50, 99 N. B. 521, Ann. Gas. 1913B, 886; Johnson v. 
 Johnson, 122 Ark. 363, 183 S. W. 967; Harris v. Carolina Distributing Co., 
 172 N. O. 14, 89 S. B. 789; Ann. Gas. 1918C, 329; Young v. Brown, 136 Tenn. 
 184, 188 S. W. 1149; Smith v. Russell, 172 ApprBiviT^3r^59 N. Y. Supp. 
 169 ; Lang v. WUmer, 131 Md. 215, 101 Atl. 706, 2 A. L. R. 1698. An estate 
 by the entirety is recognized in Oregon. Chase v. McKenzie, 81 Or. 429, 159 
 Pac. 1025. And in New York, Mardt v. Scharmach, 65 Misc. Rep. 124, 119 
 N. Y. Supp. 449. 
 
 "A conveyance of lands to a man and his wife, made after their intermar- 
 riage, creates and vests in them an estate of a very peculiar nature, resulting 
 from that intimate union, by which, as Blackstone says 'the very being or 
 legal existence of the woman is suspended during the marriage, or at least is 
 incorporated and consolidated into that of the husband.' The estate, correct- 
 ly speaking, is not what is known in the law by the name of joint tenancy. 
 
 * * * The very name, joint tenants, implies a plurality of persons. It 
 cannot, then, aptly describe ' husband and wife, nor correctly apply to the es- 
 tate vested in them; for in contemplation of law they are one person. 
 
 * * * Of an estate in joint tenancy, each of the owners has an undivided 
 moiety or other proportional part of the whole premises; each a moiety if 
 there are only two owners, and if there are more than two each his relative 
 proportion. They take and hold by moieties or other proportional parts; 
 in technical language, they are seised per my et per tout. Of husband and 
 ■wife, both have not an undivided moiety, but the entirety. They take and 
 hold, not by moieties, but each the entirety. Each is not seised of an un- 
 divided moiety, but both are, and each is seised of the whole. They are 
 seised not per my et per tout, but solely and simply per tout. The same 
 words of conveyance which make two other persons joint tenants will make 
 
§ 59) ESTATES BY THE ENTIRETY 147 
 
 undivided half of the land, or any absolute inheritable interest, but 
 each has an interest in the whole,^* and whatever will defeat the 
 interest of one will defeat the interest of the other.^* 
 
 ( 
 
 husband and wife tenants of the entirety." Hardenbergh v. Hardenbergh, 10 
 N. J. Law, 42, 18 Am. Dec. 371. 
 
 Tenancy by the entirety is not created by a conveyance to a man and a 
 woman who are not married, though they are so described in the instru- 
 ment, but they are tenants in common, even though believed by themselves 
 and by the grantor to be husband and wife. McKee v. Bavins, 138 Tenn. 249, 
 197 S. W. 563. 
 
 It does not afifect the result whether the consideration was furnished part- 
 ly by both or entirely by one of them. Stalcup v. Stalcup, 137 N. O. 305, 49 
 S. E. 210. Compare Frost v. Frost, 200 Mo. 474, 98 S. W. 527, 118 Am. St. 
 Kep. 689, Cooley, Cas. Persons and Domestic Kelations, 74. A conveyance by 
 a husband to himself and his wife does not, by operation of law, make them 
 tenants by the entirety. Saxon v. Saxon, 46 Misc." Rep. 202, 93 N. T. Supp. 
 191. A life lease to a man and his wife created an estate by entirety, giving 
 neither party a right, title, or interest which may be incumbered or conveyed 
 away by his or her sole act ; the survivor taking the whole estate, the dura- 
 tion of which is measured by the survivor's life. Truitt v. City of Battle 
 Creek, 205 Mich. 180, 171 N. W. 338. 
 
 In equity an estate conveyed jointly to husband and wife, without the 
 wife's consent, will not be an estate by entirety if the lands were purchased 
 with the wife's separate funds. Donovan v. Griffith, 215 Mo. 149, 114 S. W. 
 621, 20 L. R, A. (N. S.) 829, 128 Am. St. Rep. 458, 15 Ann. Cas. 724. "Where 
 in partition between a married woman and others, her share is conveyed to 
 her and her husband, they do not hold by entireties, but she retains her ac- 
 tual interest in the land. StofCal v. Jarvis, 235 Pa. 50, 83 Atl. 609. 
 
 Estates by entirety may be created In personalty as well as in realty. Re- 
 zabek v^ Bezabek, 196 Mo. App. 673, 192 S. W. 107 ; In re Sloan's Estate, 254 
 Pa. 346, 98 Atl. 966. Where a deposit in bank stands in the joint names of 
 the husband and the wife, they hold by entirety, and, on the death of either, 
 the survivor takes the whole. In re Klenke's Estate, 210 Pa. 572, 60 Atl. 
 166. "Where certificates of deposit in a bank are payable to husband or wife, 
 as well as where they are 'payable to husband and wife, it is a joint de- 
 posit with right of survivorship, being held in either case by entireties. In 
 re Sloan's Estate, 254 Pa. 346, 98 Atl. 966. And see Dupomt v. Jonet, 165 
 "Wis. 554, 162 N. "W. 664. "Where a note is made payable to a husband and 
 wife, they are owners by the entireties. In re Greenwood's Estate, 201 Mo. 
 App. 39, 208 S. W. 635. In Michigan, there can be no estate by entirety in 
 personal property. In re Berry (D. C.) 247 Fed. 700. Nor in New Tork. In 
 re Baum, 121 App. Div. 496, 100 N. X. Supp. 113. 
 
 13 Frost V. Frost, 200 Mo. 474, 98 S. "W. 527, 118 Am. St. Rep. 689. Cooley, 
 Gas. Persons and Domestic Relations, 74 ; . Sharpe v. Baker, 51 Ind. App. 547, 
 96 N. E. 627, 99 N. E. 44; Otto F. Stifel's Union Brewing Co. v. Saxy, 273 
 Mo. 159, 201 S. "W. 67, L. R. A. 19180, 1009 ; Simmons v. Meyers, 61 Ind. 
 App. 403, 112 N. E. 31; In re Village of Holcomb, 97 Misc. Rep. 241, 162 N. 
 Y. Supp. 848 ; In re McKelway's Estate, 221 N. Y. 15, 116 N. B. 348, L. R., A. 
 1917E, 1143, reversing order In re McKelway, 176 App. Div. 929, 162 N. Y. 
 Supp. 1129; Ades v. Oaplin, 132 Md. 66, 103 Atl. 94, L. R. A. 1918D, 276. 
 
 i< Manwaring y. Powell, 40 Mich. 371. A judgment against a husband 
 
148 RIGHTS IN PEOPERTT AS AFFECTED BY COVEKTURE (Ch. 3 
 
 During coverture both take the same and an inseparable interest 
 in the whole property." Neither has such a separate interest as 
 he or she can sell, incumber, or devise, and neither can by a sepa- 
 rate transfer affect the rights of the other." On the death of ei- 
 ther, the whole estate goes to the survivor.^^ 
 
 In a few states the doctrine of tenancy by the entirety has not 
 
 does not affect property he and his wife hold as tenants by entireties. Mas- 
 terman v. Masterman, 129 Md. 167, 98 Atl. 537. Land held by husband and 
 wife as tenants by entirety is not subject to levy under execution on judg- 
 ment rendered against either alone; but a joint judgment against husband 
 and wife, based upon their alleged fraud in exchange of realty, may be satis- 
 fled out of real estate held by them as tenants by entireties and independent 
 of homestead and statutory exemptions. Sanford v. Bertrau, 204 Mich. 244, 
 169 N. W. 880. Where a judgment is entered against both husband and wife 
 who hold land by entirety, the property is subject to execution, but where the 
 lien arid judgment against the husband's interest becomes void because of 
 his bankruptcy, levy on the property cannot be made during his life. Ades 
 V. Caplin, 132 Md. 66, 103 Atl. 94, L. K. A. 1918D, 276. 
 
 15 Frost V. Frost, 200 Mo. 474, 98 S. W. 527, 118 Am. St. Rep. 689, Oooley, 
 Cas. Persons and Domestic Kelations, 74. Wliere a husband and wife hold 
 an estatfe as tenants by entireties, and are divorced, the tenancy does not 
 thereby become a tenancy in common. Alles v. Lyon, 216 Pa. 604, 66 'Atl. 81, 
 10 L. R. A. (N. S.) 463, 116 Am. St. Rep. 791, 9 Ann. Cas. 137. 
 
 16 Wales V. Coffin, 13 Allen (Mass.) 213; Fisher v. Provin, 25 Mich. 347; 
 In re Berry (D. C.) 247 Fed. 700 ; Masterman v. Masterman, 129 Md. 167, 98 
 Atl. 537; -Otto F. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S. W. 
 67, L. R. A, 1918C, 1009 ; In re Village of Holcomb, 97 Misc. Rep. 241, 162 
 N. Y. Supp. 848; Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 861; Zorntlein 
 V. Bram, 100 N. Y. 12, 2 N. B. 388; Jackson v. MeConnell, 19 Wend- (N. Y.) 
 175, 82 Am. Dec. 439;. Hubert v. Traeder, 139 Mich. 69, 102 N. W. 283, hold- 
 ing that a contract by the husband alone, whereby another was to have the 
 farm at the husband's death, and a will executed by the husband to carry 
 out the contract, were ineffectual to vest any title as against the surviving 
 wife. But see Bynum v. Wicker, 141 N. O. 95, 53 S. E. 478, 115 Am. St. Rep. 
 675, holding that where a husband, by deed in which the wife does not join, 
 conveys an estate held by entireties, both he and his wife are estopped 
 from interfering with the possession of the premises during their joint lives. 
 
 17 Barber v. Harris, 15 Wend. (N. Y.) 615; Pierce v. Chace, 108 Mass. 254; 
 Bates V. Seeley, 46 Pa. 248 ; Otto F. Stifel's Union Brewing Co. v. Saxy, 273 
 Mo. 159, 201 S. W. 67, L. R. A. 1918C, 1009; Ade^ v. Caplin, 132 Md. 66, 
 103 Atl. 94, L. R. A, 1918D, 276; Maxey v. Logan, 131 Ark. 593, 198 S. W. 
 270; Dotson v. Faulkenburg, 186 Ind. 417, 116 N. E. 577; Church v. McLen- 
 nan, 163 Wis. 424, 158 N. W. 89; ;S'aler v. Ballew, 81 Ark. 828, 99 S. W. 72; 
 Oliver v. ¥/right, 47 Or. 322, 83 Pac. 870 ; Frost v. Frost, 20O Mo. 474, 98 S. 
 W. 527, 118 Am. St. Rep. 689; Cooley, Cas. Persons and Domestic Relations, 
 74; Young v. Biehl, 166 Ind. 357, 77 N. E. 406; Boland v. McKowen, ISO 
 Mass. 568, 76 N. B. 206, 109 Am. St. Rep. 668 ; French v. Mehan, 56 Pa. 286 ; 
 2Etna. Ins. Co. v. Resh, 40 Mich. 241 ; Manwaring v. Powell, 40 Mich. 371 ; 
 Allen V. Allen, 47 Mich. 74, 10 N. W. li8. In a late Pennsylvania case, hus- 
 band and wife, who were tenants by entireties, mortgaged the land so held. 
 After the wife's deat^ it was sold under a judgment against the husband 
 
§ 59) ESTATES BY THE ENTIRETY 149 
 
 been recognized, it seems ;^' and in some states it has been 
 abolished, or modified by statute, so that a conveyance to husband 
 and wife makes them joint tenants or tenants in common; the 
 statutes varying somewhat in the different states. ^° In many 
 states, however, the doctrine still obtains. 
 
 It has been held that the wife's interest, in view of its nature, 
 in property thus held by the entirety, cannot be regarded as her 
 separate property within the meaning of statutes giving married 
 women the power to hold separate property, and convey the same, 
 or contract with reference to it.-° 
 
 entered prior to the mortgage. It was held that, as the wife's estate termi- 
 nated at her death, the purchaser at the execution sale took a good title as 
 against the mortgage. Fleek v. Zillhaver, 117 Pa. 213, 12 Atl. 420. Where a 
 husband and wife owned land by the entireties, the wife can, after death of 
 husband, make a valid and binding agreement for the sale of same and con- 
 vey good title. Ginn v. Edmundson, 173 N. 0. 85, 91 S. B. 690. Where, after 
 a conveyance to husband and wife in fee by entireties, a divorce a mensa et 
 thoro was granted, and the husband died before the wife, the husband's 
 heirs were not entitled to any part of the land, but the entire estate descend- 
 ed to the wile's heirs. Freeman v. Belfer, 178 N. C. 581, 92 S. E. 486, U 
 R. A. 1917E, 886. 
 
 18 See Sergeant v. Steinberger, 2 Ohio, 305, 15 Am. Dec. 553 ; Whittlesey v. 
 Fuller, 11 Conn. 337; Swan v. Walden, 156 Oal. 195, 103 Pac. 931, 134 Am. 
 St Rep. 118, 20 Ann. Cas. 194. 
 
 19 See Gresham v. King, 65 Miss. 387, 4 South. 120; Bassler v. Rewod- 
 linski, 130 Wis. 26, 109 N. W. 1032, 7 L. R. A. (N. S.) 701 ; Holmes v. Holmes, 
 70 Kan. 892, 79 Pac. 163. A husband's common-law rights in leasehold prop- 
 erty held by himself and his wife as tenants by entireties were materially 
 changed by Code Pub. Gen. Laws 1888, art 45, §§ 1, 2, as amended by Acts 
 1892, c. 267, and Acts 1890, c. 394, and section 12, protecting! the wife's - 
 property from her husband's debts and allowing her to sue and be sued con- 
 cerning it. Masterman v. Masterman, 129 Md. 167, 98 Atl. 537. • Some courts 
 hold that the doctrine is impliedly abolished by the married women's acts 
 giving them separate property rights. Cooper v. Cooper, 76 111. 57 ; Green v. 
 Cannady, 77 S. C. 193, 57 S. E. 882; Clark v. Clark, 56 N. H. 105.- Pub. 
 Acts 1813, c. 26, emancipating married women, abolished estates by the en- 
 tireties, and deed of land to husband and wife created tenancy in common; 
 joint tenancy having been abolished by Thomp. Shan. Code, § 3677. Gill 
 V. McKinney, 140 Tenn. 549, 205 S. W. 4i6. But the weight of authority is 
 to the contrary. Pray v. Stebbins, 141 Mass. 219, 4 N. E. 824, 55 Am. Rep. 
 462 ; Bilder v. Robinson, 73 N. J. Eq. 169, 67 Atl. 828 ; McDufC v. Beauchamp. 
 50 Miss. 531 ; Gresham v. King, 65 Miss. 387, 4 South. 120 ; Bertles v. Nunan, 
 •92 N. Y. 152, 44 Am. Rep. 361; McCurdy v. Canning, 64 Pa. 39; Marburg 
 V. Cole, 49 Md. 402, 33 Am. Rep. 266; Fisher v. Provin, 25 Mich. 347; 
 Flaherty v. Columbus, 41 App. D. C. 525 ; Craig v. Bradley, 153 Mo. App". 586, 
 134 S. W. 1081; Jones v. W. A. Smith & Co., 149 N. C. 818, 62 S. B: 1092, 
 19 L. R. A. (N. S.) 1087, 128 Am. St. Rep. 661 ; Diver v. Diver, 56 Pa. 106 ; 
 Hetzel v. Lincoln, 216 Pa. 60, 64 Atl. 866. 
 
 2 Speier v. Opfer, 73 Mich. 35, 40 N. W. 909, 2 L. R. A. 345, 16 Am. St. 
 Rep. 556; Curtis v. Crowe, 74 Mich. 99, 41 N. W. 876. But see Dreutzer 
 
150 EIGHTS IN PEOPERTT AS AFFECTED BY COVERTURE (Ch. S 
 
 COMMUNITY PROPERTY 
 
 60. In some states, by statute, property acquired by husband and 
 wife, or by either of them, during coverture, otherwise 
 than in certain excepted ways specified in the statute, is de- 
 clared to be common property. These statutes create a 
 kind of partnership between husband and wife in regard 
 to property. The doctrine was adopted from the civil law, 
 and was unknown to the common law. 
 
 4 
 
 The community property doctrine was unknown to the common 
 law, and it seems was equally unknown to the Roman law. It 
 had its origin among Teutonic peoples,"^ and, becoming ingrafted 
 on the French and Spanish law, was carried to the colonies of 
 France and Spain in the New World. By adoption from the Codes- 
 of those countries it now prevails in Louisiana, Texas, California, 
 Washington, and a few other Western and Southwestern states. 
 The general scheme of these statutes is the same, but they vary 
 widely in details, and it is not possible to state general rules which 
 will be applicable in all the states. The statutes and decisions 
 must be consulted. In. most instances all the property acquired 
 during coverture by either the husband or the wife, or by both, is 
 declared to be common or community, property ;^^ but generally 
 
 V. Lawrence, 58 Wis. 594, 17 N. W. 423. And see Citizens' Sav. Bank & 
 Trust Co. V. Jenkins, 91 Vt. 13, 99 Atl. 250, holding that under P. S. 3040, 
 3041, the wife's interest in an estate by entirety is her separate property 
 and not subject to her husband's debts. 
 
 21 Cole V. Cole's Ex'rs, 7 Mart. N. S. (La.) 41, 18 Am. Dec. 241. 
 
 22 Otto V. Long, 144 Cal. 144, 77 Pac. 885; Pancoast v. Pancoast, 
 57 Cal. 320; Moody v. Southern Pac. Co., 167 Cal. 786, 141 Pac. 388; 
 Douglas V. Douglas, 22 Idaho, 336, 125 Pac. 796; In re Slocum's Estate, 
 83 Wash. 158, 145 Pac. 204; Knoblock & Kainold v. Posey, 126 La. 610, 52 
 South. 847; Wade v. Wade (Tex. Civ. App.) 106 S. w. 188;, Merrell v. 
 Moore, 47 Tex. Civ. App. 200, 104 g- W. 514; Edwards v. White (Tex. Civ. 
 App.) 120 S. W. 914; Newman v. Kewman (Tex. Civ. App.) 86 S. W. 635; 
 Sweeney v. Taylor Bros., 41 Tex. Oiv. App. 365, 92 S. W. 442; Crochet v. 
 McCamant, 116 La. 1, 40 South. 474, 114 Am. St. Rep. 538 ; Pior y. Giddens,. 
 50 La. Ann. 216, 23 South. 337. 
 
 Property to which title is acquired by adverse possession by husband and 
 wife is community property. Villescas v. Arizona Copper Co., 20 Ariz. ^68, 
 179 Pac. 963. A government homestead patented to a husband is community- 
 property under the law of Washington. Buchser v. Morss, 202 Fed. 854, 121 
 C. C. A. 212, affirming decree (D. O.) 196 Fed. 577, and decree affirmed 
 Buchser v. Buchser, 231 V. S. 157, 34 Sup. Ct. 46, 58 L. Ed. 166. But title 
 acquired by homestead entryman after the death of his wife does not re- 
 
§ 60) COMMUNITY PEOPERTT 151 
 
 property acquired by gift, bequest, devise, or descent is excepted, 
 and becomes the separate property of the spouse by whom it is 
 acquired." So, too, property held by either husband or wife at the 
 time of the marriage, and property acquired by means of the sepa- 
 rate property of either spouse, does not become community prop- 
 erty. =* 
 
 The general rule is that the character of the property as com- 
 munity or separate property is determined as of the time of its 
 
 late back to the community which formerly existed. Wadkins v. Producers' 
 Oil Co., 130 La. 308, 57 South. 937, judgment affirmed Same v. Producers' 
 Oil Co., 227 U. S. 368, 33 Sup. Ct. 380, 57 L. Ed. 551. And see, also. Baker 
 V. Saxon, 24 N. M. 531, 174 Pac. 991, where title to public lands was acquired 
 after divorce. 
 
 Money saved by a wife from a monthly household allowance is com- 
 munity property, in the absence of an agreement or understanding between 
 the spouses that it was to be the wife's separate property. McMijrray v. 
 Bodwell, 16 XDal. App. 574, 117 Pac. 627. In the absence of an understanding ' 
 or agreement at the time, money borrowed by either the husband or wife 
 is community property. Bmerson-Brantingham Implement Co. v. Brothers 
 (Tex. Civ. App.) 194 S. W. 608. The earnings of the wife are community 
 property, in the absence of an agreement that they shall be her separate 
 property. Moore v. Crandall, 205 Fed. 689, 124 C. C. A. 11 (under California 
 statute) ; Lilly v. Yeary (Tex. Civ. App.) 152 S. W. 823 ; Marsh v. Fisher, 69 
 Wash. 570, 125 Pac. 951. Eight of action for damages for personal injury to 
 wife is community property. Moody v. Southern Pac. Co., 167 Cal. 786, 141 
 Pac. 388; Schneider v. Biberger, 76 Wash. 504, 13,6 Pac. 701, 6 A. L. R. 
 1056; City of San Antonio v. Wildenstein, 49 Tex. Civ. App. 514, 109 S. W. 
 231. Crops grown on separate property become community property. Hanks 
 V. Leslie (Tex. Civ. App.) 159 S. W. 1056. Increase of cattle given to wife is 
 community property. Barr v. Simpson, 54 Tex. Civ. App. 105, 117 S. W. 1041. 
 Otherwise under Idaho Code. Bank of Nez Perce v. Pindel, 193 Fed. 917, 
 113 C. C. A. 545. Vernon's Sayles' Ann. Civ. St. 1914, arts. 4621, 4622, as 
 amended March 21, 1913 (Acts 33d Leg. c. 32), do not make the rents from 
 the separate real estate of the wife her separate proi)erty, but merely gives 
 her control thereof, and the rents received from such property are com- 
 munity property. Bmerson-Brantingham Implement Co. v. Brothers (Tex. 
 Civ. App.) 194 S. W. 608. Policies of life insurance issued to the husband 
 some time before his marriage form part of his separate estate, and the 
 proceeds were properly placed to the credit of his property. Succession 
 of Verneuille, 120 La. 605, 45 South. 520. To the same effect, Jones v. 
 Jones (Tex. Civ. App.) 146 S. W. 265. 
 
 23 Wade V. Wade (Tex. Civ. App.) 106 S. W. 188; Merrell v. Moore, 47 
 Tex. Civ. App. 200, 104 S. W. 514; Bollinger v. Wright, 143 Cal. 292, 76 
 Pac. 1108; Stockstill v. Bart (C. C.) 47 Fed. 231; Lake v. Bender, 18 Nev. 
 361, 4 Pac. 711, 7 Pac. 74 ; Allen v. Allen, 6 Rob. (La.) 104, 39 Am.' Dec. 
 553 ; Hurst v. W. B. Thompson & Co., 118 La. 57, 42 South. 645 ; Winters 
 V. Winters, 34 Nev. 323, 123 Pac. 17, 1135; Cotten v. Friedman (Tex. Civ. 
 App. 158 S. W. 786; Holly St. Land Co. v. Beyer, 48 Wash. 422, 93 Pac. 
 1065. The husband may give or convey to the wife community property, 
 
 2* See note 24 on following page. 
 
152 RIGHTS IN PROPERTY AS AFFECTED BY COVERTURE (Ch. 3 
 
 acquisition." So, too, the question whether personal property- 
 is community or separate is determined by the law of the matri- 
 monial domicile at the time of its acquisition,^* and where prop- 
 erty which, under the law of the domicile, is the separate property 
 of the husband or the wife, is removed into another state where the 
 
 and thereby make it her separate property, when it is not done in fraud of 
 creditors, and such a gift is good against subsequent creditors of the hus- 
 band. Amend v. Jahns (Tex. Civ. App.) 184 S. W. 729; Collett v. Houston 
 & T. C. R. Co. (Tex. Civ. App.) 186 S. W. 232; Printz v. Brown, 31 Idaha, 
 443, 174 Pac. 1012. 
 
 2* Oaks v. Oaks, 94 Cal. 66, 29 Pac. 330; Smith v. Smith, 12 Oal. 216, 73 
 Am. Dec. 533; In re Dargie's Estate, 179 Cal. 418, 177 Pac. 165; Booker 
 V. Booker (Tex. Civ. App.) 207 S. W. 675 ; Letot v. Peacock (Tex. Civ. App.) 
 94 S. W. 1121; Wade v. Wade (Tex. Civ. App.) 106 S. W. 188; Love v. Rob- 
 ertson, 7 Tex. 6, 56 Am. Dec. 41 ; Douglas v. Douglas, 22 Idaho, 336, 125 Pac. 
 796; Graves v. Columbia Underwriters, 93 Wash. 198, 160 Pac. 436; Free- 
 burger V. Gazzam, 5 Wash. 772, 32 Pac. 732. But in Louisiana such prop- 
 erty, as a rule, becomes community property, subject to a claim to the 
 amount of the separate property so used in favor of the spouse whose sep- 
 arate estate furnished the consideration. Moore v. Stancel, 36 La. Ann. 
 819 ; Le Blanc v. Le Blanc, 20 La. Ann. 206. 
 
 If the husband acquires lands with money belonging to him before his 
 marriage, such land is his "separate property," and other land purchased 
 with the proceeds thereof is also his "separate property." Worden v. Worden, 
 96 Wash. 592, 165 Pac. 501. To the same effect, see Dyment v. Nelson, 166 
 Cal. 38, 134 Pac. 988; O'Parrell v. O'Farrell, 56 Tex. Civ. App. 51, 119 S. 
 W. 899; Holly St. Land Co. v. Beyer, 48 Wash. 422, 93 Pac. 1065. Where 
 a husband, after marriage, conveyed to his wife land acquired by him before 
 marriage, and she reconveyed it to him, land which originally was his sep- 
 arate property again became his separate property, under Rem. Code 1915, 
 § 8766. Brown v. Davis, 98 Wash. 442, 167 Pac. 1095. Where plaintiff at 
 her marriage owned two lots, and one of the houses thereon was built by 
 her husband, employed by her and paid out of her separate funds, the hus- 
 band had no community interest in the improvement. Glaze v. Pullman 
 State Bank, 91 Wash. 187, 157 Pac. 488. Where wife takes conveyance of 
 property purchased in part with her separate estate and partly with com- 
 munity funds, deed having nothing to show property is conveyed to wife 
 as her separate estate, there being no agreement that it shall be her sepa- 
 rate property, the wife has a separate interest proportionate to amount her 
 separate estate contributed. Ochoa v. Edwards (Tex. Civ. App.) 189 S. W. 
 1022; In re Finn's Estate, 106 Wash. 137, 179 Pac. 103. An automobile, 
 bought by a wife out of her separate property on a separate property transac- 
 tion, was not community property, and was not subject to attachment in an 
 action against the husband. Rhoades v. Lyons, 34 Cal. App. 615, 168 Pac. 385. 
 
 .25 Folsom V. Folsom, 106 Wash. 315, 179 Pac. 847; Union Savings & Trust 
 Co. V. Manney, 101 Wash. 274, 172 Pac. 251; Stiles v. Hawkins (Tex. Com. 
 App.) 207 S. W. 89, reversing Hawkins v. Stiles (Tex. Civ. App.) 158 S. 
 W. 1011. Proceeds of life insurance payable to executors, administrators, or 
 assigns of assured are either community or separate property of the assured, 
 depending on whether he was married or single when the contract was made. 
 Succession of Le Blanc, 142 La. 27, 76 South. 223, L. R. A. 1917F, 1137. 
 
 20 Douglas V. Douglas, 22 Idaho, 336, 125 Pac. 796. 
 
§ 60) COMMUNITY PKOPERTT 153 
 
 law of community property exists, its character as separate prop- 
 erty will not be changed.^' 
 
 The central idea of the community system is that marriage cre- 
 ates a partnership in property between husband and wife, and 
 that all property resulting from the labor of either or both of them, 
 and all property vesting in either or both of them, except in the 
 ways expressly excepted by the statute, inures to the benefit of both 
 of them; and, though community property has not all the inci- 
 dents of partnership property, it^ has many of them, and is common- 
 ly called "partnership property." ^^ 
 
 The presumption of law is that property purchased during the 
 existence of the marriage relation, whether it is purchased in the 
 name of both spouses or in the name of one only, is community 
 property.^' 
 
 27 In re NiccoU's Estate, 164 Cal. 368, 129 Pac. 278; Douglas v. Douglas, 
 22 Idaho, 336, 125 Pac. 796 ; Brookman v. Durkee, 46 Wash. 578, 90 Pac. 914, 
 12 L. R. A. (N. S.) 921, 123 Am. St. Rep. 944, 13 Ann. Cas. 839. The sep- 
 arate personal property enjoyed under the law of the domicile by one of 
 the spouses when it was acquired is not lost by its investment in realty in 
 another jurisdiction where the law of community property is in force. In 
 re Warner's Estate, 167 Cal. 686, 140 Pac. 583 ; Meyers v. Albert, 76 Wash. 
 218, 135 Pac. 1003 ; Douglas v. Douglas, 22 Idaho, 336, 125 Pac. 796. In de- 
 termining whether land acquired under homestead laws of the United States 
 falls into a community already dissolved by the death of the wife, the 
 laws of the United States and not the laws of the state apply. Wadkins 
 V. Producers' Oil Co.. 130 La. 308, 57 South. 937, judgment affirmed Same 
 T. Producer Oil Co., 227 U. S. 368, 33 Sup. Ct. 380, 57 L. Ed. 551. 
 
 28 3 Am. & Eng. Enc. Law, 350, 354. See De Blane v. Lynch, 23 Tex. 25; 
 Meyer v. Klnzer, 12 Cal. 247, 73 Am. Dec. 538; Clark v. Norwood, 12 La. 
 Ann. 598 ; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626 ; Higgins v. John- 
 son's Heirs, 20 Tex. 389, 70 Am. Dec. 394. Community status, like partner- 
 ship, has elements of gains and losses based on presumed labors of each, 
 irrespective of real industry of either. Briggs v. McBride (Tex. Civ. App.) 
 190 S. W. 1123. Where there has been no lawful marriage, there can be 
 no community property. In re Sloan's Estate, 50 Wash'. 86, 96 Pac. 684, 17 
 L. R. A. (N. S.) 960. A divorce determines thje community estate, and there- 
 after the spouses are tenants in common rather than copartners. Johnson 
 V. Garner (D. C.) 233 Fed. 756. Where, when a man married, he had, as 
 at all times thereafter, a living and undivorced wife, property purchased by 
 him and the second putative wife with joint earnings, deeds naming both 
 as grantees, was not community property, but joint or partnership property 
 of the two. Little v. Nicholson (Tex. Civ. App.) 187 S. W. 506. 
 
 2 Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538; In re Pepper's Estate, 
 158 Cal. 619, 112 Pac. 62, 31 L. R. A. (N. S.) 1092 ; Latour v. GuIUory, 130 
 La. 570, 58 South. 341; Kin Kaid v. Lee, 54 Tex. Civ. App. 622, 119 S. W. 
 342; Love v. Robertson, 7 Tex. 6, 56 Am. Dec. 41; Morris v. Hastings, 
 70 Tex. 26, 7 S. W. 649, 8 Am. St. Rep. 570; Smalley v. Lawrence, 9 Rob. 
 (La.) 211 ; StaufCer v. Morgan, 39 La. Ann. 632, 2 South. 98 ; Lake v. Ben- 
 
154 BIGHTS IN PROPERTY AS AFFECTED BY COVBl^TUEE (Ch. 3 
 
 But the presumption may be rebutted. When property is pur- 
 chased in the wife's name she may rebut the presumption by show- 
 ing that the purchase was made by investment of her paraphernal 
 or separate property.^" And in like manner the husband may show 
 that he made a purchase with his separate funds. ^^ In either case 
 the proof, to rebut the presumption, must be clear.^^ It is not 
 necessary to prove that property is in fact the product of the joint 
 e'fforts of husband and wife to establish its character as commu- 
 nity property. If it is acquired after the marriage by either alone, 
 but not in a way excepted by the statute, it belongs to the com- 
 munity.' ' Community property is made liable for community 
 debts.'* Though the wife has as much interest in the community 
 
 der, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74 ; Tesler v. Hochstettler, 4 Wash. 349, 
 30 Pac. 398; Hoopes v. MatMs, 40 Tex. Civ. App. 121, 89 S. W. 36; Smith 
 V. Weed, 75 Wash. 452, 134 Pac. 1070; York v. Hilger (Tex. Civ. App.) 84 S. 
 W. 1117. 
 
 sostauffer v. Morgan, 39 La. Ann. 632, 2 South. 98; Booker v. Castillo, 
 154 Cal. 672, 98 Pac. 1067. 
 
 31 Estate of Higgins, 65 Cal. 407, 4 Pac. 389; York v. Hilger (Tex. Civ. 
 App.) 84 S. W. 1117; Douglas v. Douglas, 22 Idaho, 336, 125 Pac. 796. 
 
 32 Morris, v. Hastings, 70 Tex. 26, 7 S. W. 649, 8 Am. St. Rep. 570 ; Mor- 
 gan V. Lones, 78 Cal. 58, 20 Pac. 248; Brusle v. Dehon, 41 Iol. Asm. 244, 
 6 South. 31 ; Smith v. Weed, 75 Wash. 452, 134 Pac. 1070. 
 
 33 Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74. 
 
 34 Kerley's Succession, 18 La. Ann. 583 ; Shuey v. Adair, 24 Wash. 378, 64 
 Pac. 536; Moor v. Moor, 31 Tex. Civ. App. 137, 71 S. W. 794; Dever v. 
 
 ,Selz, 39 Tex. Civ. App. 558, 87 S. W. 891; Floding v. Denholm, 40 Washk 
 463, 82 Pac. 738; Williamson v. McElroy (Tex. Civ. App.) 155 S. W. 998; 
 McLean v. Burginger, 100 Wash. 570, 171 Pac. 518; Johnson v. Garner 
 
 '(D. C.) 233 Fed. 756; William v. Beebe, 79 Wash. 133, 139 Pac. 867. It 
 Is also generally liable for husband's debts. Schuyler v. Broughton, 70 Cal. 
 282, 11 Pac. 719; Davis v. Compton, 13 La. Ann. 396; Lee v. Henderson, 
 75 Tex. 190, 12 S. W. 981; Holt v. Bmpey, 32 "Idaho, 106, 178 Pac. 703; 
 Ohchoa V. Edwards (Tex. Civ. App.) 189 S. W. 1022. But in Washington 
 real estate is exempt, though personal property is liable. Gund v. Parke, 
 15 Wash. 393, 46 Pac. 408 ; Ross v. Howard, 31 Wash. 393, 72 Pac. 74 ; Levy 
 V. Brown (C. C.) 53 Fed. 568. But see Huyvaerts v. Roedtz, 105 Wash. 657, 
 178 Pac. 801. 
 
 A "community debt" Is a liability made by a husband during marriage. 
 Word V. CoUey (Tex. Civ. App.) 143 S. W. 257. A debt of the husband as 
 surety Is not a community debt. Ajrierican Surety Co. v. Sandberg (D. C.) 
 225 Fed. 150, affirmed 244 Fed. 701, 157 C. C. A. 149; J. I. Case Threshing 
 Mach. Co. V. Wiley, 89 Wash. 301, 154 Pac. 437. Community property is 
 not liable for a debt created by a tort of either spouse, or for a debt not 
 for benefit of community. Floding v. Denholm, 40 Wash. 463, 82 Pac. 738 ; 
 Milne v. Kane, 64 Wash. 254, 116 Pac. 659, 36 L. R. A. (N. S.) 88, Ann. 
 Cas. 1S13A, 318; Wilson v. Stone, 90 Wash. 365, 156 Pac. 12. Community 
 property is liable for the antenuptial debts of the wife. Dunlap v. Squires 
 (Tex. Civ. App.) 186 S. W. 843. Community property is not bound for the 
 
§ 60) COMMUNITY PEOPEBTT 155 
 
 property as the husband, and an equal right to its beneficial use," 
 during coverture the husband has the management and control 
 of it,''" and in some states he can assign or convey or incumber it 
 wfithout the consent of the wife.^' In other states, he cannot do so 
 unless she joins him.*' 
 
 payment of postnuptial debts contracted by the wife for the benefit of her 
 separate property. Hall v. Johns, 17 Idaho, 224, 105 Pac. 71. 
 
 30 Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 1139, affirming judg- 
 ment (Tex. Civ. App.) 147 S. W. 330; Davis v. Davis (Tex. Civ. App.) 186 
 S. W. 775; Ewald v. Hufton, 31 Idaho, 373, 173 Pac. 247. 
 
 36Warburton v. White, 176 U. S. 484, 20 Sup. Ct. 404, 44 L. Ed. 555; 
 Schaadt v. Mutual Life Ins. Co., 2 Cal. App. 715, 84 Pac. 249 ; Spreckels v. 
 Spreckels, 116 Cal. 339, 48 Pac. 228, 36 L. K. A. 497, 58 Am. St. Eep. 170; 
 Newman v. Newman (Tex. Civ. App.) 86 S. W. 635; Merriam v. Patrick, 103 
 Wash. 442, 174 rac. 641; Briggs v. McBride (Tex. Civ. App.) 190 S. W. 
 1123; Bowers v. Good, 52 Wash. 384, 100 Pac. 848. Where community 
 property of husband and wife became a valid homestead, it thereupon ceased 
 to be community property, and the husband's right of absolute control 
 over the same, as authorized by Civ. Code, § 172, immediately ceased. Yard- 
 ley V. San Joaquin Valley Bank, 3 Cal. App. 65i, 86 Pac. 978. 
 
 3 7 Spreckels v. Spreckels, 116 Cal. 339, 48 Pac. 228, 36 L. B. A. 497, 58 
 Am. St. Rep. 170; Strauss v. Canty, 169 Cal. 101, 145 Pac. 1012; Wits- 
 Keets-Poo v. Kowton, 28 Idaho, 193, 152 Pac. 1064; First Nat. Bank v, 
 Meyers, 39 Nev. 235, 150 Pac. 308, 40 Nev. 284, 161 Pac. 929 ; Watts v. 
 Snodgrass (Tex. Civ. App.) 152 S. W. 1149; Simon v. Meaux, 143 La. 760, 
 79 South. 330; Wilson v. Wilson, 6 Idaho, 597, 57 Pac. 708; Cotton, v. 
 Cotton, 34 La. Ann. 858; Schaadt v. Mutual Life Ins. Co. of New Toi<k, 
 2 Cal. App. 715, 84 Pac. 249; Zuckerman v. Munz, 48 Tex. Civ. App. 337, 
 107 S. W. 78; Sweeney v. Taylor Bros., 41 Tex. Civ. App. 365, 92 S. W. 
 442. Under Civ. Code, § 172, a husband's deed of community property, made 
 without consideration is not binding upon his wife. Winchester v. WiOr 
 Chester, 175 Cal. 391, 165 Pac. 965. Although by statute the husband is 
 made manager with power to sell and dispose of community personalty, 
 he cannot waste it or give it away, especially to evil associates. Marston 
 V. Rue, 92 Wash. 129, 159 Pac. Ill, 129. 
 
 A wife, with the authority and consent of her husband, may make a valid 
 conveyance of community property, though the husband does not join there- 
 in. Roos V. Basham, 41 Tex. Civ, App. 551, 91 S. vV^. 656. The husband 
 being by statute the managing head of the family appointed to make con- 
 veyances of community property, a deed by the wife alone Is void, unless 
 the facts exist which create an exception in extreme cases. L/asater v. 
 Jamison (Tex. Civ. App.) 203 S. W. 1151; McAlpine v. Kohler & Chase, 96 
 Wash. 146, 164 Pac. 755. Where a husband abandoned his wife and she 
 and children of the marriage are in necessitous circumstances, she may, 
 without the husband's joinder or consent, convey community property pass- 
 ing good title. Hadnot v. Hidks (Tex. Civ. App.) 198 S. W. 359. A wife may, 
 if reasonable prudence require, sell perishable personalty of the commu- 
 nity in case of husband's absence. Marston v. Rue, 92 Wash. 129, 159 
 Pac. 111. 
 
 38 Kimble v. Kimble, 17 Wash. 75, 49 Pac. 216; Olson y. Springer, 60 Wash. 
 77, 110 Pac. 807. 
 
156 CONTKACTS, CONVEYANCES, AND QUASI CONTKACTS (Ch. 4 
 
 CHAPTER IV 
 
 CONTRACTS, CONVEYANCES, ETC., AND QUASI CONTRACTUAT. OBLI- 
 GATIONS 
 
 61. Contracts of Wife. 
 
 62, 63. Wife as a Sole Trader. 
 
 64r-67. Conveyances, Sales, and Gifts by Wife. 
 
 68. Contracts of Husband. 
 
 69, 70. Contracts by Wife as Husband's Agent. 
 
 71. Husband's Liability for Wife's Funeral Expenses. 
 
 72. Husband's Liability for Wife's Antenuptial Debts. 
 
 CONTRACTS OF WIFE 
 
 61. Except in the following cases, a married woman has no power 
 or capacity to contract. Her attempted contracts are not 
 voidable merely, but are absolutely. void. 
 EXCEPTIONS — (a) She can contract and sue and be sued as a 
 feme sole, even at common law> when her husband has 
 been banished, has abjured the realm, is a nonresident 
 alien, or has been transported. 
 
 (b) In equity, with the consent of lier husband, she may carry on 
 
 a separate trade or business, and contract with reference 
 thereto. 
 
 (c) In equity she may contract with reference to her separate 
 
 estate,' so as to bind it, but not so as to bind herself per- 
 sonally. 
 
 (d) Under modern statutes, her disability to contract has been 
 
 removed to a greater or less extent in the different states. 
 
 As a result of the common-law principle that the legal existence 
 of a woman is lost during coverture, the attempted contracts of a 
 married woman are, with few exceptions, absolutely void. She 
 cannot, during coverture, enter into a contract that will bind her 
 personally, either during coverture or after her coverture has been 
 determined by death or divorce ; and the rule is the same at law and 
 in equity.^ In a Delaware case a married woman sold certain lands 
 
 12 Kent, Comm. 350; Sockett v. Wray, 4 Brown, Cb. 483, 487; Kenge v. 
 Delavall, 1 Veru. 326; Ross v. Singleton, 1 Del. Cb. 149, 12 Am. Dec. 86; 
 Marshall v. Rutton, 8 Term R. 547 ; Fairliurst v. Liverpool Adelpbi Loan 
 Ass'n, 23 I^aw J. Excb. 163 ; Pittam v. Foster, 1 Barn. & C. 248 ; Lowell v. 
 
§ 61) CONTBACTS OF WIPE 157 
 
 to another, both she and the purchaser erroneously believing that 
 her husband was dead, the probability being that such was the case. 
 After the husband's death the purchaser brought a suit in equity to 
 compel the woman to make him a deed to the land, and to restrain 
 her from enforcing a judgment in ejectment which she had' ob- 
 tained against him. It was held that he was not entitled to relief, 
 even though the purchase was in good faith, and though he had 
 made valuable improvements on the land. The contract, being by a 
 married woman, it was said, was absolutely void, and a court of 
 equity could not give validity to a contract void at law.' She can- 
 not be rendered liable on her attempted contracts, either directly or 
 indirectly. She cannot, therefore, be estopped to attack their valid- 
 ity by reason of her conduct in entering into them, or by her acts or 
 admissions in relation to them. To hold her thus estopped would 
 be to indirectly enforce her contracts.^ 
 
 New Promise after Death of Husband or Divorce 
 
 Since the contracts of a married woman during coverture are ab- 
 solutely void, on principle they should have no effect whatever. By 
 the weight of authority, therefore, a promise by a married woman, 
 after her coverture has been determined either by death or divorce, 
 to perform a promise given by her during coverture, is void for want 
 of consideration. In other words, she cannot, after the death of her 
 husband or a divorce, ratify a contract entered into by her during 
 coverture, and thereby render it binding upon her.* Some of the 
 
 Daniels, 2 Gray (Mass.) 161, 61 Am. Dec. 448 ; Bemis v. Call, 10 Allen (Mass.) 
 512; Pierce v. Chace, 108 Mass. 254, 259; Butler v. Buckingham, 5 Day 
 (Conn.) 492, 5 Am. Dec. 174 ; Kelso v. Tabor, 52 Barb. (N. Y.) 125 ; Hollis v. 
 Francois, 5 Tex. 195, 51 Am. Dee. 760 ; Norris v. Lantz, 18 Md. 260 ; Glidden 
 V. Strupler, 52 Pa. 400; Love v. Love (Pa.) 12 Atl. 498; Tracy v. Keith, 11 
 Allen (Mass.) 214; Far rar v. Bessey, 24 Vt. 89, Cooley Gas. Persons and 
 Domestic Relations, 79; Rodemeyer v. Rodman, 5 lov/a, 426; Forsyth v. 
 Barnes, 228 111. 326, 81 N. E. 1028, 10 Ann. Gas. 710; Hall v. Johns, 17 Idaho, 
 224, 105 Pac. 71 ; French v. Slack, 89 Vt. 514, 96 Atl. 6 ; Pond v. Carpenter, 
 12 Minn. 430 (Gil. 315). See, also, Burns v. Cooper, 140 Fed. 273, 72 C. C. A. 
 25. 
 
 2 Ross V. Singleton, 1 Del. Ch. 149, 12 Am. Dec. 86. 
 
 3 See the cases above cited. And see Pierce v. Chace, 108 Mass. 254, 259 : 
 Miles V. Lingerman, 24 Ind. 385; Drury v. I'oster, 2 Wall. 24, IT L. Ed. 780; 
 Merriam v. Boston, C. & F. Railroad Co., 117 Mass. 241. 
 
 * Meyer v. Haworth, 8 Adol. & El. 467 ; Lloyd v. Lee, 1 Strange, 94 ; Len- 
 nox V. Eldred, 1 Thomp. & C. (N. Y.) 140; Hayward v. Barker, 52 Vt. 429, 
 36 Am. Rep. 762; Hubbard v. Bugbee, 58 Vt. 172, 2 Atl. 594; Putnam v. 
 Tennyson, 50 Ind. 456 ; Candy v. Coppock, So Ind. 594 ; Porterfleld v. But- 
 ler, 47 Miss. 165, 12 Am. Rep. 329 ; Clark, Cont. 203, and cases there cited. 
 
158 CONTRACTS, CONVBYANCBS, AND QUASI CONTRACTS (Ch. 4 
 
 courts have sustained such a ratification on the ground that she is 
 under a moral o'bligation to perform the contract, and that this ob- 
 ligation is a sufficient consideration to support her promise after 
 coverture.^ This, however, is directly contrary to the well-settled 
 rule of the law of contract that a mere moral obligation is no con- 
 sideration for a promise.' 
 
 Kxceptions to the Rule of Common Law 
 
 1 here were exceptions to the rule at common law in regard to 
 contracts of married women in cases where the husband had been 
 banished, or had abjured the realm, or was a nonresident alien, or 
 was under sentence of transportation or of penal servitude for a 
 term of years or for life. In these cases he was regarded as civilly 
 dead, and the wife had the power to contract, and could sue and be 
 sued, as a feme sole.'' These doctrines have been adopted with 
 some modifications in this country.* It has been very generally 
 held that a married woman has power to contract, and to sue and be 
 sued in relation to her contracts, where her husband has abandoned 
 her and the country ; and residence in another state, with intention 
 to abandon her, has been regarded as equivalent to residence in a 
 foreign country." The rule has even been applied in cases where 
 the husband has abandoned his wife, without leaving the state. ^'' 
 To give rise to the exception, the husband must have renounced 
 ^11 his marital rights and relations.^^ 
 
 s Lee V. Muggeridge, 5 Taunt. 36 ; Brown v. Bennett, 75 Pa. 420 ; Sharp- 
 less' Appeal, 140 Pa. 6a, 21 Atl. 239 ; Goulding v. Davidson, 26 N. Y. 604 ; 
 Hubbard v. Bugbee, 55 Vt. 506, 45 Am. Rep. 63T. 
 
 8 Clark, Cent. 180, 203. 
 
 ^ 1 Bl. Comm. 443 ; 2 Kent, Comm. 154 (where the question Is considered 
 at length, and the English cases are collected and discussed) ; Carrol v. Blen- 
 cow, 4 Esp. 27; Belknap v. Lady Weyland, Oo. Litt. 132b, 183a; Derry v. 
 Doichess of Mazarine, 1 Ld. Eaym. 147. 
 
 8 Gregory v. Paul, 15 Mass. 31 ; Khea v. Ehenner, 1 Pet. 105, 7 L. Ed. 72; 
 Robinson v. Reynolds, 1 Aikens (Vt.) 174, 15 Am. Dec. 673, and cases here- 
 after cited. 
 
 » Gregory v. Paul, 15 Mass. 31 ; Abbot v. Baylpy, 6 Pick. (Mass.) 89 ; Os- 
 born V. Nelson, 59 Barb. (N. Y.) 375 ; Rhea v. Rhenner, 1 Pet. 105, 7 L. Ed. 
 72 ; Arthur v. Broadnax, 3 Ala. 557, 37 Am. Dec. 707 ; Krebs v. O'Grady, 23 
 Ala. 727, 58 Am. Dec. 312 ; Smith v. Silence, 4 Iowa, 321, 66 Am. Dec. 137 ; 
 Rose V. Bates, 12 Mo. 30 ; Rosenthal v. Mayhugh, 33 Ohio St. 155 ; Starrett 
 V. Wynn, 17 Serg. & R. (Pa.) 130, 17 Am. Dec. 654; Bean v. M'organ 4 AIo- 
 Cord (S. C.) 148. 
 
 10 Love V. Moynehan, 36 111. 277, 63 Am. Dec. 306. 
 
 iiAyer v. Warren, 47 Me. 217; Gregory v. Pierce, 4 Mete. (Mass.) 473; 
 Beckman v. Stanley, 8 Nev, 257. 
 
§ 61) CONTKACTS OF WIFE 159 
 
 Exceptions in Equity i 
 
 Courts of equity recognize certain exceptions to the rule that a 
 married woman cannot enter into a contract. Thus in equity, as 
 will be seen in a subsequent section, a wife may, with the consent 
 of her husband, carry on business as a sole trader, and may contract 
 with reference to her separate trade or business.^' 
 
 As was stated in a preceding chapter, in equity a married woman 
 may acquire and hold an estate to her sole and separate use. In re- 
 lation to this estate, she may to some extent make contracts which 
 a court of equity will enforce against the separate property. She ■ 
 cannot, however, even in equity, much less at law, make a contract 
 in relation to such separate estate which will be binding upon her 
 personally. The extent to which a married woman may contract 
 so as to bind her equitable separate estate will be shown at some 
 length in a subsequent chapter.^^ 
 Under Modern Statutes 
 
 In recent years the Legislatures of the different states have en- 
 acted laws removing to a greater or less extent the common-law dis- 
 ability of a married woman to contract.^* In some states the dis- 
 ability has been wholly removed, so that she can now contract and 
 sue and be sued as a feme sole; while in others the disability has 
 been only partially removed, and she can contract onlj'- to a limited 
 extent. ^° In most states she can contract with her husband,^" but 
 
 12 Post, p. 162. 13 Post, p. 189. 
 
 J * Such statutes have no retroactiTe efEect and do not validate contracts 
 made before their enactment. In re Scully's Estate, 199 Mich. 181, 165 N. W. 
 688; Akin v. Thompson (Tex. CHv. App.) 196 S. W. 625. 
 
 15 Code Ala. 1907, §§ 4492, 4493 (but she may not coiitract as surety, sec- 
 tion 4497) ; Kurd's Rev. St. 111. 1908, c. 86, § 6 ; Code Pub. Gen. Laws, Md. 
 1904, art. 45, § 5 ; Kev. St. Mo. 1899, § 4.335 (Ann. St. 1906, p. 2378) ; Bates' 
 Ann. St. Ohio 1906, § 3112; B. & C. Comp. Or. § 5249; Pierce's Code Wash. 
 § 3873 (Balllnger's Ann. Codes & St. § 4504) ; Major v. Holmes, 124 Mass. 108 ; 
 Caldwell v. Blanchard, 191 Mass. 489, 77 N. E. 1036; Young v. Hart, 101 
 Va. 480, 44 S. E. 703; Dempsey v. Wells, 109 Mp. App. 470, 84 S. W. 1015. 
 In a few states It seems to be the rule that the common-law disability to 
 contract remains except as removed by statute. Meier & Frank Co. v. 
 Bruce, 30 Idaho, 732, 168 Pac. 5; Fadden v. Fadden, 92 Vt. 350, 103 Atl. 
 1020. But the better rule seems to be that her capacity to contract is the 
 rule, except as restricted by statute. Bartholomew v. Allentown Nat. Bank, 
 260 Pa. 509, 103 Atl. 954; Townsend v. Huntzinger, 41 Ind. App. 223, 83 
 N. E. 619 ; Bogie v. Nelson, 151 Ky. 443, 152 S. W. 250. A married woman 
 has the same status as her husband as to the right to contract. Farmers' 
 State Bank of Ada v. Keen (Old.) 167 Pac. 207. She may contract for her 
 
 16 See note 16 on following page. 
 
1 60 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS ' (Ch. i 
 
 in some she cannot.^^ In some states she is prohibited from enter- 
 ing into contracts of suretyship,^" or to convey land.^* In all the 
 
 ■/ 
 services. Gerdes v. Niemeyer, 193 111. App. 574; Elliott v. Atltinson, 45 Ind. 
 App. 290, 90 N. 10. 779 ; Garver v. Tlioman, 15 Ariz. 38, 135 Pac. 724. And 
 for necessaries. Adair v. Arendt, 126 Ark. 246, 190 .S. W. 445; Wilder v. 
 Brokaw, 141 App. Div. 811, 126 N. Y. Supp. 932. See ante, p. 126. She may 
 appoint an agent. Barber v. Keeling (Tex. Civ. App.) 204 S. W. 139; Baker 
 V. Thompson, 214 Mo. 500. 114 S. W. 497. In Minniesota she can make all 
 contracts as if sole, except contracts to convey her homestead. Rev. Laws 
 1905, § 3607.- The capacity of a married v?oman to contract does not depend 
 on her holding separate property. Barrows v. Dugan's Estate, 88 Vt. 441, 
 92 Atl. 927. A wife's coverture is no defense to a note executed by her as 
 maker. McDaniel v. Jonesboro Trust Co., 127 Ark. 61, 191 S. W. 916. Under 
 Pub. St. N. H. 1901, c. 176, | 2, a married woman is liable on a contract 
 made with third persons for the benefit of a partnership composed of herself 
 and her husband. Orr & Rolfe Co. v. Merrill, 78 N. H. 175, 98 Atl. 303. 
 See, also, Preret v. Taylor, 119 La. 307, 44 South. 26, 121 Am. St. Rep. 522, 
 holding that where a: married woman is authorized under the law of her 
 domicile to enter into a contract as a feme sole, and to sue and be sued with- 
 out her husband being .ioined as a party, her status as to contracting and as 
 to suing and being sued accompanies her to this state unless controlled by 
 considerations of public policy. 
 
 i« Crowley v. Crowley, 167 Mo. App. 414, 151 S. W. 512 ; Leimgruber v. 
 Leimgruber, 172 Ind. 870, 86 N. E. 73, 88 N. E. 593 ; Perkins v. Blethen, 107 
 Me. 443, 78 Atl. 574, 31 L. R. A. (N. S.) 1148 ; Tuttle v. Shutts, 43 Colo. 534, 
 96 Pac. 260 ; Krousei v. Krouse, 48 Ind. App. 3, 95 N. E. 262 ; ' Ctoleman v. 
 Coleman, 142 Ky. 36, 133 S. W. 1003 ; Potter v. Mobley (Tex. Civ. App.) 194 
 S. W. 205i But such contracts will be carefully scrutinized. Koopman v. 
 Mansolf, 51 Mont. 48, 149 Pac. 491; Leimgruber v. Leimgruber, 72 Ind. 370, 
 86 N. E. 73, 88 N. E. 593. It was held in Appeal of Spitz, 56 Conn. 184, 14 
 Atl. 776, 7 Am. St. Rep. .303, that the provision of the Connecticut statute 
 (Gen. St. 1902, § 4545) declaring that a married woman may contract with 
 third persons does not prohibit contracts with her husband. The wife had 
 the right in equity to contract with her husband, and as the statute is silent 
 on the subject the right is not taken away. She may enter into a partnership 
 contract with her husband. Butler v. Frank, 7 Ga. App. 655, 67 S. E. 884; 
 Jones V. Joues, 99 Miss. 600, 55 South. 361. Wife, loaning proceeds of her 
 separate property to her husband, becomes one of his creditors, and her rights 
 are the same as those of any other creditor. Bates v. Papesh, 30 Idaho, 
 529, 166 Pac. 270. 
 
 A wife after marriage has the same capacity to contract with her husband 
 that she had before, and may enforce such contract by an action at law. Mc- 
 Dowell V. McDowell, 37 N. D. 367, 164 N. W. 23 ; Hendrickson v. Hendrickson, 
 198 111. App. 442 ; Regal Realty & Investment Co. v. Gallagher (Mo.) 188 S w' 
 151. 
 
 17 Rev. Laws Mass. 1902, c. 153, § 2; Pub. St. N. H. 1901, c. 176, § 2; 
 Bpurlock V. Spurlock, 80 Ark. 37, 96 S. W. 753; Crosby v. Clem, 209 Mass'. 
 193, 95 N. E. 297. The right of a married woman to enter into a partnership 
 contract with her husband is denied in some cases. See Haggett v Hurley 
 91 Me. 542, 40 Atl. 561, 41 L. K. A. 362 ; Voss v. Sylvester, 203 Mass. 233, 89 
 
 i» See notes 18 and 19 on following page. 
 
§ 61) CONTBACTS OF WIFE 161 
 
 States statutes have been enacted allowing a married woman to ac- 
 quire and hold property as her separate estate, and under these 
 statutes she has more or less general power to contract in relation 
 to her separate estate. The effect of these statutes will be con- 
 sidered in a separate chapter."" It is, however, generally held that 
 such statutes do not, of themselves, give married women unlimited 
 capacity to contract.^ ^ 
 
 N. B. 241 ; People's Trust Co. v. Merrill, 78 N. H. 329, 99 Atl. 650. Except as 
 modified by Act No. 94 of 1916, law of Louisiana prohibits all contracts be- 
 tween husband and wife, including those entered into while they are tem- 
 porarily in another jurisdiction. Marks v. Loewcnberg, 143 La. 196, 78 South. 
 444. 
 
 IS Code Ala. 1907, § 4497; Code Ga. 1895, §§ 2488, 2492; Burns' Ann. St. 
 Ind. 1914, §§ 7851, 7855 ; Ky. St. 1903, § 2127 ; Pub. St. fT. H. 1901, c. 176, | 
 2; P. & L. Dig. Pa. p. 2890, par. 2. See, also. Bank of Commerce v. Baldwin, 
 14 Idaho, 75, 93 Pac. 504, 17 L. R. A. (N. S.) 676; Indianapolis Brewing Co. 
 V. Bellnke, 41 Ind. App. 288, 81 N. E. 119; Goldsmith Bros. Smelting & 
 Eeflning Co. v. Moore, 108 Ark. 362, 157 S. W. 733 ; Thompson v. Wilkinson, 
 9 Ga. App. 367, 71 S. E. 67S; Baker v. Owensboro Savings Bank & Trust 
 Co.'s Receiver, 140 Ky. 121, 130 S. "W. 969; Keystone Brewing Co. v. Var- 
 zaly, 39 Pa. Super. Ct. 155; Wilson v. Dearborn (Tex. Civ. App.) 179 S. W. 
 1102, denying rehearing 174 S. W. 296; Bryant v. Jones, 183 Ky. 298, 209 
 S. W. 30; Milton v. Setze, 146 Ga. 26, 90 S. E. 469. In Indiana the statute 
 confers on married women power to contract as if sole, except that she can- 
 not bind herself as surety or convey her real estate, unless her husband joins 
 in the conveyance. Townsend v. Huntzinger, 41 Ind. App. 223, 83 N. E. 619; 
 Kennedy v. Swisher, 34 Ind. App. 676, 73 N. E. 724 ; Anderson v. Citizens' 
 Nat. Bank, 38 Ind. App. 190, 76 N. B. 811 ; Isphording v. Wolfe, 36 Ind. App. 
 250, 75 N. E. 598; Ft. Wayne Trust Co. v. Sihler, 84 Ind. App. 140, 72 N. E. 
 494 ; Field v. Campbell, 164 Ind. 389, 72 N. E. 260, 108 Am. St. Rep. 301. But the 
 statute prohibiting a married woman to bind herself as surety does not ren- 
 der the enforcement, in the courts of Indiana, of an Illinois contract of sure- 
 tyship entered into by a married woman residing in that state, which is 
 valid by the laws thereof,' against public policy. Garrigue v. Keller, 164 
 Ind. 676, 74 N. E. 523, 69 L. R. A. 870, 108 Am. St. Rep. 324. She may not 
 become surety for her husband. Grosman v. Union Trust Co., 228 Fed. 610, 
 143 C. C. A. 132, Ann. Oas. 1917B, 613, affirmed 245 U. S. 412, 38 Sup. Ct. 
 147, 62 L. Ed. 868 (construing Texas statute) ; Elkins v. Bank of Henry, 180 
 Ala. 18, 60 South. 96; First Nat. Bank v. Bertoli, 87 Vt. 297, 89 Atl. 859, 
 Ann. Cas. 1917B, 590. But see Royal v. Southerland, 168 N. C. 405, 84 S. E. 
 708, Ann. Cas. 1917B, 623, and Duty v. Sprinkle, 64 W. Va. 39, 60 S. E. 882, 
 holding that a wife may bind herself for her husband's debt. Under Rev. 
 Laws Okl. 1910, § 3353, a married woman may become surety on an appearance 
 bond under the same conditions as a feme sole. Temple v. State (Okl.) 178 
 Pac. 113. 
 
 19 Rev. Laws Minn. 1905, § 3607. And see post, p. ■202. 
 
 20 Post, p. 203. 
 
 21 Yale V. Dederer, 22 N. Y. 450, 78 Am. Dec. 216; Conway v. Smith, 13 
 Wis. 140 ; Carpenter v. Mitchell, 50 111. 470 ; Bank of Commerce v. Baldwin, 
 14 Idaho, 75, 93 Pac. 504, 17 L. R. A. (N. S.) 676; Union State Bank of Har- 
 
 TIFF.P.& D.Eei,.(3d Ed.)— 11 
 
162 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Ch. 4 
 
 WIFE AS A SOLE TRADER 
 
 62. In equity, by agreement with her husband, a wife may carry 
 
 on a separate trade or business, and contract with refer- 
 ence thereto, and the stock in trade and profits will be 
 treated as her separate property. 
 
 (a) As against the husband, though the agreement was volun- 
 
 tary, t 
 
 (b) As against the husband's creditors, if the agreement was bas- 
 
 ed on a valuable consideration. 
 
 (c) The husband will be liable for the debts of his wife's sepa- 
 
 rate business, when it is conducted with his express con- 
 sent, or where his consent may be implied; as where he 
 takes part in its management, or shares in its profits. But 
 he is not liable if it is conducted without his consent, ex- 
 press or implied. 
 
 63. In most states the right of married, women to engage in busi- 
 
 ness is controlled by statute. 
 
 While at common law a wife could make no contracts, and her 
 husband was entitled to her separate earnings, she was nevertheless, 
 by the aid of equity, enabled to carry on a separate trade or busi- 
 ness. When a husband has agreed with his wife that she may carry 
 on a separate trade for her own use and benefit, equity will protect 
 the wife's interests, and treat the husband, when no trustees have 
 been appointed, as trustee for the wife as to her stock in trade and 
 the profits of the business. ^^ Where the agreement is supported by 
 a valuable consideration, it will be supported in favor of the wife 
 even against her husband's creditors. ^^ 1\ the agreement is entered 
 into before marriage, and in consideration thereof, the marriage is 
 
 vard V. McKelvie, 91 Neb. 728, 136 N. W. 1021; Williams v. Hugunln, 69 III. 
 214, 18 Am. Eep. 607 ; Palliser v. Gurney, L. B. 19 Q. B. Dlv. 519 ; Tliompson 
 V. Minnich, 227 Til. 430, 81 N. E. 336 (holding that a married woman could 
 not by virtue of the statute contract to adopt a child and provide for it 
 out of her estate). See, also, post, p. 203. 
 
 22 JIacq. Husb. & W. 328 ; Story, Eq, Jur. § 1387 ; Ashworth v. Outram, 
 5 Ch. Div. 923; Partridge v. Stocker, 36 Vt. 108, 84 Am. Dec. 664; James v. 
 Taylor, 43 Barb. (N. Y.) 530 ; Penn v. Whitehead, 17 Grat. (Va.) 503, 94 Am. 
 Dec. 478. By the "custom of London" a wife could trade as a feme sole. 2 
 Roper, Husb. & W. 124. 
 
 23 Story, Eq. Jur. §§ ISSS-l.^ST ; 2 Roper, Husb. & W. 171 ; Penn v. White- 
 head, 17 Grat. (Va.) 503, 94 Am. Dec. 478. 
 
§§ 62-63) WIFE AS A SOLE TRADER 163 
 
 a valuable consideration. If it is not entered into until after mar- 
 riage, there must be some other consideration. The husband's 
 agreement may be either in express words or may be established 
 from his acquiescence in his wife's acts.-* He may, however, with- 
 draw his consent at any time, unless supported by a valuable con- 
 sideration, and assert his common-law rights.^' Where, under such 
 agreement, the property is vested in a trustee, it will be supported 
 in law as well as in equity. ^° 
 
 While the wife may conduct a separate business under an agree- 
 ment with her husband which would be supported in equity as 
 against her husband, nevertheless the debts incurred in such busi- 
 ness, although contracted in the name of the wife, are his debts, 
 and he is liable for them ; " and where there is ho agreement, if he 
 participates in the benefits of the business,^' or assists her in the 
 management of it, he thereby ratifies her authority to incur debts, 
 and renders himself liable for them.^' But wheri he has no con- 
 nection with the business, and there is no evidence that he ever 
 assented to it, he is not liable for debts contracted by the wife in 
 its management.'" 
 
 Under Modern Statutes 
 
 The wife's right to conduct a separate business is generally con- 
 firmed and regulated by statute in the various states.*^ In some 
 instances married women are permitted to trade as if unmarried,'^ 
 while in others her capacity to act as sole trader is limited and 
 
 2* Ashworth v. Outram, 5 Cli. Div. 923 ; Partridge v. Stocker, 36 Vt. 108, 
 84 Am. Dec. 664; Tillman v. Shackleton, 15 Mich. 447, 93 Am. Dec. 198; 
 Jones V. Wocher, 90 Ky. 230, 13 S. W. 911. 
 
 25 Cropsey v. McKlnney, 30 Barb. (N. Y.) 47; Oonkling v. Doul, 67 III. 355. 
 
 26 Story, Ea. Jur: §§ 1385, 1386. 
 
 27 Oropsey v. McKlnney, 30 Barb. (N. Y.) 47 ; Ix>vett v. Robinsoii, 7 How. 
 Prac. (N. Y.) 105. 
 
 28 Macq. Husb. & W. 333 ; Petty v. Anderson,^ 3 Bing. 170. 
 2 9 Ourtis V. Bngel, 4 N. Y. Super. Ct.. 287. 
 
 30 2 Roper, Husb. & W. c. 18, § 4 ; Tuttle v. Hoag, 46 Mo. 38, 2 Am. Rep. 
 481; Jenkins v. Flinn, 37 Ind. 349. 
 
 31 The Legislature may declare when and how a married woman may be- 
 come a free trader. Scott-Sparger Co. v. Ferguson, 152 N. O. 346, 67 S. E. 
 750. 
 
 32Trieber v. Stover, 30 Ark. 727; Taliman v. Jones, 13 Kan. 438; Wayne 
 V. Lewis (Pa.) 16 Atl. 862; Norwood v. Francis, 25 App. D. C. 463, 4 Ann. 
 Oas. 865; Elliott v. Hawley, 34 Wash. 585, 76 Pac. 93, 101 Am. St. Rep. 1016; 
 Scott V. Gotten, 91 Ala. 623, 8 South. 783. A married woman has the same 
 status as her husband as to the right to engage in business. Farmers' State 
 Bank of Ada t. Keen (Okl.) 167 Pac. 207. 
 
164 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Ch. 4 
 
 conditions imposed requii'ing the consent of the husband, judicial 
 permission, or the like.^' The general property acts do not as a rule 
 authorize her to engage in trade or business on her own account, 
 except in so far as she is allowed to contract in relation to her sepa- 
 rate property.^* 
 
 When a married wonian is by statute authorized to carry on a 
 trade or business, she may purchase goods on credit,*^ execute 
 notes,^° appoint agents,^^ form partnerships ^^ and corporations,^" 
 and generally perform such acts as are necessarily incident to the 
 business. 
 
 CONVEYANCES, SALES, AND GIFTS BY WIFE 
 
 64. AT COMMON LAW — At common law, a married woman 
 
 could not, by a conveyance, either transfer her own real 
 property, or bar her right of dower in the real property of 
 her husband. 
 
 65. IN EQUITY — In equity, in most jurisdictions, it is held that a 
 
 married woman has the power to convey or otherwise dis- 
 pose of her equitable separate estate, real or personal, un- 
 less prohibited by the instrument creating it. In all juris- 
 dictions she has the power if conferred by the instrument 
 creating it. 
 
 66. BY STATUTE — Under modern statutes married women gen- 
 
 erally have the power to dispose of their separate property, 
 real or personal. 
 
 83 Snow V. Sheldon, 126 Mass. 332, 30 Am. Rep. 684 ; I^ckwood v. Corey, 
 150 Mass. 82, 22 N. E. 440 ; Cruzen v. McKalg, 57 Md. 454 ; Azbill v. Azbill, 
 92 Ky. 154, 17 S. W. 284; Horton v. Hill, 138 Ala. 625, 36 South. 465; Wil- 
 liams V. Walker, 111 N. C. 604, 16 S. E. 706 ; McDonald v. Bozen, 8 Idaho, 
 352, 69 Pac. 125 ; In re Coles, 230 Pa. 162, 79 Atl. 254 ; Council v. Pridgen, 
 153 N. O. 443, 69 S. B. 404; Taylor v. Mlnigus, 66 111. App. 70. See, also, the 
 statutes of the various states. 
 
 s4Kuster v. Dickson (C. O.) 45 Fed. 91; Hitchcock v. Richold, 5 Mackey 
 (D. C.) 414; Glover v. Alcott, 11 Mich. 470; Taylor v. Wands, 55 N. J. Eq. 
 491, 37 Atl. 315, 62 Am. St. Rep. 818. 
 
 36 Tallman v. Jones, 13 Kan. 438. 
 
 3 8 Barton v. Beer, 35 Barb. (N. Y.) 78. See, also, Bovard v. Kettering, 101 
 Pa. 181 ; Frecking v, Rolland, 53 N. Y. 422. 
 
 37 Taylor v. Wands, 55 N. J. Eq. 491, 37 Atl. 315, 62 Am. St. Rep. 818. 
 
 88 Norvi'ood V. Francis, 25 App. D. C. 463 ; Butler v. Frank, 7 Ga. App. 655, 
 67 S. E. 884; Elliott v. Hawley, 34 Wash. 585, 76 Pac. 93, 101 Am. St. Rep. 
 1016. Sefe, also. Code Pub. Gen. Laws Md. 1904, art. 45, § 20. 
 
 30 Good Land Co. v. Cole, 131 Wis. 467, 110 N. W. 895, 120 Am. St. Rep. 
 1056, 11 Ann. Cas. 806. 
 
§ 67) CONVEYANCES, SALES, AND GIFTS BY WIFE IfiS 
 
 67. Statutes have very generally given them the power to convey 
 their owii real estate, and to bar their right to dower in 
 the real estate of their husbands by joining with them in 
 conveyances. Certain formalities in the execution of the 
 conveyance are required, and these must be strictly ob- 
 served. 
 
 Neither a conveyance of land, nor a sale and transfer of personal 
 property, without covenants or warranties, nor a gift, is a contract, 
 for, while there is an agreement, the agreement transfers rights in 
 rem only, without contemplating,- or even for a moment creating, a 
 right in personam.*" Conveyances and transfers must, therefore, 
 be dealt with separately from contracts, and not as contracts. 
 
 At Common Low 
 
 At common law a married woman could- not, either by her own 
 conveyance or by uniting with her husband in a conveyance, bar 
 herself or her heirs of any estate of which she was seised in her own 
 right, or of her right of dower in the real estate of her husband.*'^ 
 A conveyance of her land by a married woman was absolutely void 
 as to her.*^ A conveyance by her jointly with her husband, wheth- 
 er of her own or of her husband's land, was considered as the act 
 of the husband only, and the law restrained its operation to the 
 husband's interest, just as if he alone had executed it.*' "This dis- 
 ability is supposed to be founded on the principle that the separate 
 legal existence of the wife is\ suspended during the marriage, and is 
 strengthened by the consideration that, from the nature of the 
 connection, there is danger that the influence of the husband may 
 be improperly exerted for the purpose of forcing the wife to part 
 with her rights in his favor." ** The only mode in which a feme 
 covert could convey her real estate at common law was by uniting 
 with her husband in levying a fine, which was a solemn proceeding 
 of record, in the face of the court, in which the judges were sup- 
 
 40 Anson, Cont. p. 3; Clark, Cont. p. 12. 
 
 41 Martin v.'Dwelly, 6 Wend. (N. Y.) 9, 21' Am. Dee. 245; Hollingsworth v. 
 McDonald, 2 Har. & J. (Md.) 230, 3 Am. Dec. 545. 
 
 42Hoyt V. Swar, 53 III. 134; Fowler v. Shearer, 7 Mass. 14; Concord 
 Bank v. Bellis, 10 Cush. (Mass.) 276 ; Wing v. Deans, 214 Mass. 546, 102 N. 
 E. 313 ; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9. 
 
 43 Albany Fire Ins. Co. v. Bay, 4 N. Y. 9 ; Martin v. Dwelly, 6 Wend. (N. 
 Y.) 9, 21 Am. Dec. 245. 
 
 44 Per Sutherland, J., in Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. Deo. 
 245. 
 
166 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Ch. 4 
 
 posed to watch over and protect .the rights of the wife, and to as- 
 certain by a private examination that her joining in the act was 
 volvintary.*^ Such was the doctrine of the common law. 
 
 At a very early date, and long before any statute on the subject, 
 the custom arose in some states for*married women to convey their 
 real estate by deed in which the husband joined,*" and the subse- 
 quent statutes as a rule really enacted what had long been recog- 
 nized as the customary law.*^ 
 
 Since a wife's personal property in possession vested in her hus- 
 ba;nd at common law, no question as to her power to transfer it 
 could well arise.** So, too, she could not assign her choses in ac- 
 tion so as to defeat his right to reduce them to his possession.*' 
 
 In Equity 
 
 A court of equity has no more power than a court of law to rec- 
 ognize a conveyance by a ma!rried woman as binding upon her, 
 unless it conveys her equitable separate estate. In the latter case 
 the conveyance may be upheld. The doctrine of the wife's equitable 
 separate estate will be fully considered in a separate chapter. It 
 is sufficient to say here that in most jurisdictions it is held that a 
 married woman has, as an incident to her separate estate, the power 
 to dispose of it by conveyance or otherwise, even though this power 
 is not expressly conferred by the instrument creating the estate, 
 provided it is not expressly excluded by the instrument. In some 
 jurisdictions it is held that the power must be conferred in the 
 creation of the estate. In none d'oes the power exist if excluded in 
 the creation of the estate.^" 
 
 Under Modern, Statutes 
 
 In all of the states the cornmon-law rules prohibiting conveyanc- 
 es by a married woman, and those giving her personal property 
 .to her husband, have been greatly modified by statute. In some 
 states she now has almost as much power as a feme sole in respect 
 to her real and personal property. In all states she has more or 
 less power to dispose of it. The extent of this power will be shOwn 
 in a subsequent chapter.'''- 
 
 45 2 Inst. 515; 1 Vent. 121a; Martin v. Dwelly, 6 Wend. (N! T.) 9, 21 Am. 
 Dec. 245. 
 
 *8 Shaw V. Knss, 14 Me. 432 ; Fowler v. Shearer, 7 Mass. 14 ; Gordon v. 
 Haywood, 2 N. H. 402; Durant v. Ritchie, 4 Mason, 45, Fed. Cas. No. 4,190. 
 
 47 Bressler v. Kent, 61 111. 426, 14 Am. Kep. 67; Althen v. Tarbox, 48 
 Minn. 18, 50 N. W. 1018, 31 Am. St. Kep. 616. 
 
 48 Ante, p. 1128. 40 Ante, p. 131. oopost, p. 137. sipost, p. 202. 
 
§ 67) OONVETANCES, SALES, AND GIFTS BY WIPE 167 
 
 Mode of Conveyance Where the Power Bxists 
 
 Assuming that she has the power to make a conveyance, the 
 question next arises as to the mode in which she must, exercise, it. 
 In all of the states statutes have been enacted changing the com- 
 mon law in so far as it prevented a married woman from making a 
 valid conveyance, and allowing her to convey her own real estate, 
 or to bar her right of dower in her husband's real estate by unit- 
 ing with him in a conveyance thereof."^ These statutes, while they 
 .vury to some extent in the diflferent states, very generally require 
 the wife to acknowledge the conveyance with certain formalities, 
 separate and apart from her husband. In this, as in all other re- 
 spects, the directions of the statute must be strictly complied with, 
 or the conveyance will be ineffectual as against the wife. A deed 
 not acknowledged by the wife according to the directions of the 
 statute is, as to her, absolutely void, and will not even be forced 
 against her in equity as an agreement to convey. °* 
 
 52 Under Code 1906, c. 73, § 6, a duly acknowledged deed in which both 
 husband and wife join conveys all right and title which she then has. Weth- 
 ered v. Conrad, 73 W. Va. 551, 80 S. E. 953. Under Code Tenn. 1858, § 2076, 
 authorizing a married woman to convey real estate by deed in which her 
 husband joins, a deed by a married woman conveying to her husband lands 
 which she holds in trust for him, is not void because he does not join there- 
 in. Insurance Co. of Tennessee v. Waller, 116 Tenn. 1, 95 S, W. 811, 115 
 Am. St. Rep. 763, 7 Ann. Cas. 1078. See, also, Jordan v. Jackson, 76 Neb. 
 15, 106 N. W. 999, rehearing denied 107 N. W. 1047; Hensley v. Blankin- 
 ship, 174 N. C. 759, 94 S. E. 519 ; Farmers' Bank of Hardinsburg v. Richard- 
 son, 171 Ky. 340,' 188 S. W. 406. Under Married Woman's Act, § 8304, wife, 
 as to control and conveyance of her separate property, is sui juris, and as 
 such is clothed with the right to Sell her land and make a deed thereto Inde- 
 pendent of husband. Riggs v. Price (Mo.) 210 S. W. 420. Under Code W, 
 Va. 1913, c. 66, § 3 (sec. 3671) and chapter 73, § 6 (sec. 3809), married woman 
 in good faith living apart from her husband may, in the form prescribed by 
 statute, make a valid disposition of her separate real and personal estate, 
 without joining her husband whatever the cause of the separation. Spangler 
 v. A'ermillloh, 80 W. Va. 75, 92 S. E. 449. 
 
 = 3 Martin v. DweUy, 6 Wend. (N. Y.) 9, 21 Am. Dec. 245; Butler v. Buck- 
 ingham, 5 Day (Conn.) 492, 5 Am. Dec. 174 ; Grove v. Todd, 41 Md. .6133, 20 
 Am. Rep. 76; HoUingsworth v. McDonald, 2 Har. & J. (Mid.) 230, 3 Am. Dec. 
 545 ; Townsley v. Chapin, 12 Allen (Mass.) 476 ; Bressler v. Kent, 61 111. 426, 
 14 Am. Rep. 67 ; Rust v. GofC, 94 Mo. 5ll, 7 S. W. 418 ; Laidley v. Central 
 Land Co., 30 W. Va. 505, 4 S. B. 705 ; Kimmey v. Abney (Tex. Oiv. App.) 107 
 S. W. 885; Simpson v. Belcher, 61 W. Va. 157, 56 S. E. 211; Shumate v, 
 Shumate, 78 W. Va. 576, 90 S. E. 824 ; Deese v. Deese, 176 N. C. 527, 97 S. E. 
 475; Kilpatrick v. Kilpatrick, 176 N. C. 182, 96 S. E. 988; Tillery v.. Land, 
 136 N. C. 537, 48 S. B. 824. As to the effect of immaterial departures from 
 statutory formalities, see Homer v. Schonfeld, 84 Ala. 313, 4 South. 105; 
 HoUingsworth v. McDonald, 2 Har. & J. (Md.) 230, 3 Am. Dec. 545. A con- 
 
168 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Ch. 4 
 
 CONTRACTS OF HUSBAND 
 
 68. A man's power to contract is not affected by his marriage, ex- 
 
 cept that he cannot by his contract deprive the vriie of 
 rights which she acquires in his property by virtue of the 
 marriage. ^ 
 
 It is the legal existence of the woman only that is affected by 
 marriage. The man's legal capacity remains virtually unimpaired. 
 He has substantially the same power to enter into contracts as 
 before marriage. The only restrictions on his power to contract 
 which are imposed by marriage result, not from any incapacity in 
 himself, but from the fact that by law the marriage confers upon 
 the wife, as has been seen, certain rights in her husband's property. 
 He cannot defeat these rights by any contract entered into by 
 himself alone. Thus he cannot, by a sale of his land, defeat her 
 right to dower therein if she survives him. 
 
 CONTRACTS BY WIFE AS HUSBAND'S AGENT 
 
 69. IN GENERAL — The wife may, when expressly or impliedly 
 
 authorized by the husband, act as his agent in the making 
 of contracts for him ; and she may become his agent by es- 
 toppel or by ratification, as in other cases of agency. 
 
 (a) If they are living together, the fact of cohabitation raises a 
 
 presumption of authority in fact; but this presumption 
 may be rebutted. 
 
 (b) If they are living apart, the presumption is against her au- 
 
 thority to bind him, and the burden is on the person deal- 
 ing with her to show such authority. 
 
 70. AGENCY OF NECESSITY— As a rule, where a husband fails 
 
 to provide for his wife, she becomes his agent of necessity 
 to purchase necessaries on his credit. But the rule is sub- 
 ject to qualification: 
 
 veyance by a married woman living apart from her husband for a valuable 
 consideration, though void as a conveyance vfhen the acknovi'ledginent does 
 not follow Code 1913, c. 73, § 6 (sec. 3809), is valid as a contract of sale, en- 
 forceable against her and her heirs. Shumate v. Shumate, 78 W. Va. 576, 
 90 S. E. 824. 
 
§§ 69-70) CONTKACTS BY WIFE AS HUSBAND'S AGENT 109 
 
 (a) He is liable, under siich circumstances, 
 
 (1) Where he lives with his wife. 
 
 (2) Where th^ live apart, either through his fault or by 
 
 agreement, and without fault on her part, 
 
 (b) He is not liable 
 
 (1) Where she leaves him without cause, unless she offers 
 
 to return, and he refuses to receive her. 
 
 (2) Where the credit is given to her, and not to him. 
 
 (3) Where she has a sufficient separate income. 
 
 (4) Where she has agreed to accept a certain amount from 
 
 him, and he pays it. 
 
 The rule of the common law as to the power of the wife to con- 
 tract is so far modified as to enable a wife to enter into a contract 
 as the agent of her husband when he has given her express author- 
 ity to bind him, or has impliedly held her out as having such au- 
 thority.^* Her agency is, like that of any other agent, a question 
 of fact, and may be inferred from the ostensible authority with 
 which the husband has cl-^t^pfl ^"^ °° Not only is the wife general 
 agent tor the husband with reference to those household matters 
 that are usually under the wife's control,'"' but if the husband ab- 
 sents himself from home, keeping his whereabouts unknown and 
 leaving his property in the care of his wife, she is his agent to do 
 those things customarily delegated to wives having charge of 
 property.^' The most important class of cases in which the wife 
 
 54 Add. Cont. 135; Proctor v. Woodruff (Sup.) 119 N. Y. Supp. 232; JJames 
 McCreery & Co. v. Martin, 84 N. J. Law, 626, 87 Atl. 433, 4T L. E, A. (N. S.) 
 279. Where a husband authorized his wife to hire necessary board and lodg- 
 ing for herself and family, the husband is bound as if he personally made 
 the contract. Stevens v. Hush (Sup.) 172 N. Y. Supp. 258. Where a husband 
 authorized his wife as his agent to purchase household furniture on credit, 
 and in doing so it was necessary that she contract with mortgagee to in- 
 sure the property, the making of such agreement was within the scope' of 
 her authority. Mosley v. Stratton (Tex. Oiv. App.) 203 S. W. 397. 
 
 5 5 JVTcGeorge v. Egan, 7 Scott, 112; Mackinley v. McGregor, 3 Whart. (Pa.) 
 369, 31 Am. Dec. 522; BBRGH v. WARNER, 47 Minn. 250, 50 N. W- 77, 28 Am. 
 St. Rep. 362, Gooley Gas. Persons and Domestic Relatioas, 85 ; Cox v. Hoff- 
 man, 20 N. O. 319 ; Gray v. Otis, 11 Vt. 628. 
 
 6 6 Freestone v. Butcher, 9 Car. & P. 643; Ruddock v. Marsh, 1 Hurl. & 
 N. 601. 
 
 5 7 Evans v. Crawford County Farmers' Mut. Fire Ins. Co., 130 Wis. 189, 
 109 N. W. 952, 9 L. R. A. (N. S.) 485, 118 Am. St. Rep. 1009. In this case it 
 was, however, held further that the authority of a wife as agent for her 
 husband by implication of law does not, under any circumstances, extend to 
 selling and conveying his realty. 
 
, 170 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (.Ch. 4' 
 
 may render her husband liable on the theory of agency is cases in 
 which she purchases necessaries, and pledges his credit therefor. 
 In these cases the power of the wife and' the liability of the hus- 
 band will vary according to the circumstances. Where he supports 
 her, she has no power to pledge his credit, even for necessaries, 
 unless there is authority in fact. If he fails to support her, she 
 has the absolute right to pledge his credit for necessaries, whether 
 she has authority in fact or not.^^ The law, as applied to cases in 
 which the wife is supported by the husband, will first be explained, 
 and then cases in which he neglects to provide for her will be con- 
 sidered. Finally we shall ascertain what things are to be regarded 
 as necessaries. 
 
 Agency by Bstoppel 
 
 Marriage and cohabitation do not, as a matter of law, regardless 
 of the facts, imply authority in the wife to pledge her husband's 
 credit.'*' The husband may, however, so act as to estop himsel f 
 from denying his wife's agency. If she is generally allowed to deal 
 with a tradesman, the husband will be considered to have held her 
 out as his agent, and will be liable for her purchases. This doctrin e 
 .is not lim ite d to purchases o f necessaries by th e'wife . The extent 
 of the estoppel will depend upon the extent (pt the dealings which 
 the husband has thus authorized.^" "If a tradesman has had deal- 
 ings with the wife lipon the credit of the husband, and the hus- 
 band has paid him without demurrer in respect to such dealings, the 
 tradesman has the right to assume, in the absence of notice to the 
 contrary, that the authority of the wife which the husband has 
 recognized continues. The husband's quiescence is in such cases 
 tantamount to acquiescence, and forbids his denying an authority 
 which his own conduct has invited the tradesman to assume." °^ 
 
 5 8 Duty to support wife and family, see ante, p. 80. 
 
 9 McNemar v. Cohn, 115 111. App. 31. 
 
 eo Debenham v. Mellon, 6 App. Gas. 24, 5 Q. B. Div. 403 ; Fenner v. Lewis, 
 10 Johns. (N. Y.) 38; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; 
 Gates V. Brower, 9 N. Y. 205, 59 Am. Dec. 530 ; Keller v. Phillips, 39 N. Y. 
 351 ; Snell v. Stone, 23 Or. 327, 31 Pac. 663. A husband Is liable for house- 
 hold expenses incurred by tlie wife where he had clothed her with apparent 
 authority by paying bills previously incurred. Meier & Frank Co. v Mit- 
 lehner, 75 Or. 331, 146 Pac. 796. 
 
 01 Debenham v. Mellon, 6 App. Cas. 24, 5 Q. B. Div. 403; Bonwit, Teller 
 & Co. V. Lovett (Sup.) 102 N. Y. Supp. 800. If a husband, whose wife had 
 pledged his credit to dressmakers, desired to repudiate her act as unauthor- 
 ized, he was bound to act with reasonable promptness when he became aware 
 of what had been done and that the dressmakers in good faith were acting 
 
§§ 69-70) CONTRACTS BY WIPE AS HUSBAND'S AGENT ' 171 
 
 Agency bv Ratificatio n 
 
 The husband may, under the doctrine of agency by ratification, 
 become liable on contracts made by his wife as his agent, by ratify- 
 ing them. If, for instance, he ratifies a purchase made by his wife 
 on his credit, he is just as liable as if he had previously authorized 
 her to pledge his credit."^ And this necessarily applies not only 
 where the contract was for the purchase of necessaries for the 
 household, but extends to other contracts as well."^ Knowledge 
 that his 1 wife has purchased goods, and failure to disapprove of 
 the purchase, is a ratification. °* He cannot repudiate a purchase 
 by the wife, and at the same time retain the property purchased; 
 but must return it if it is in existence."^ 
 
 Where the Wife is Supported by the Husband — Agency in Fact 
 
 The husband's liability for goods furnished his wife, where he 
 supports her, rests entirely upon the theory of agency in fact. 
 If h e supports her, she has no power to pledge his credit, even f or 
 necessaries, unless there is authority in fact ."" The principal ques- 
 
 on Ms wife's representations. Auringer v. Cochrane, 225 Mass. 273, 114 
 N. E. 355. The wife will be regarded as having authority to pledge her hus- 
 band's credit for provisions where, for 12 years, he paid the accounts, not- 
 withstanding he also advanced her large sums for household expenses. Mett- 
 ler V. Snow, 90 Conn. 690, 98 Atl. 322, Ann. Cas. 1917C, 578. 
 
 62Landgraf v. Tanner, 152 Ala. 511, 44 South. 397. And see Shuman v. 
 Steinel, 129 Wis. 422, 109 N. W. 74, 7 L. R. A. (N. S.) 1048, 116 Am. St. Rep. 
 961, 9 Ann. Cas. 1064, holding that where a wife, assuming to act as her 
 husband's agent, ordered certain books from plaintiff, and received them, and 
 the husband subsequently, with knowledge of the facts, adopted her act by 
 promising to pay for the property or by accepting the benefit of the transac- 
 tion, he became individually liable for payment of the debt. But where a 
 wife makes a contract in her own name for improvements on her husband's 
 home, not as his agent, he is not bound as principal by ratification, because 
 he paid for part of the work. Thompson v. Brown, 121 Ga. 814, 49 S. E. 
 740. 
 
 63 Conrad v. Abbott, 132 Mass. 330; Day v. Burnham, 36 Vt. 37; Harde^- 
 brook v. Harrison, 11 Cftlo. 9, 17 Pac. 72. ' ' 
 
 64 Seaton v. Benedict, 5 Bing. 28; Lane v. Ironmonger, 13 Mess. & W. 368; 
 Cothran v. Lee, 24 Ala. 380; Woodward v. Barnes, 43 Vt. 330; Ogden v. 
 Prentice, 33 Barb. (N. Y.) 160. Where a wife contracts, assuming to act for 
 her husband, and the benefit comes to his hands, and he does not disavow 
 within a reasonable time, he is bound thereby ; but the rule does not apply to 
 acts of the wife where the benefit comes to her. Evans v. Crawford County 
 Farmers' Mut. Mre Ins. Co., 130 Wis. 189, 109 N.' W. 952, 9 L. B. A. (N. S.) 
 485, 118 Am, St. Rep. 1009. 
 
 65 Oilman v. Andrus, 28 Vt. 241, 67 Am. Dec. 713. 
 
 6 6 Jolly V. Rees, 15 C. B. (N. S.) 628; Johnston v. Sumner, 3 Hurl. & N. 
 261; STBINFIELD v. GIRRARD, 108 Me. 151, 68 Atl. 630, Cooley Cas. Per- 
 
172 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Gl). i 
 
 tion in these cases is as t6 the presumption of authority. In other 
 respects, the law is the same as in the case of any other contract 
 entered into by the wife as agent of her husband. 
 
 Same — Where They are Living Together 
 
 Where the husband and wife are living together, a presumption 
 arises, from the fact of cohabitation, that the husband has in fact 
 given the wife authority to purchase goods on his credit.*^ The 
 wife is general agent of the husband with reference to those mat- 
 ters which are usually under control of the wife, such as the pur- 
 chase of clothes for herself, groceries and provisions for the family, 
 and the engaging of household servants. °* In other words, where 
 ^tradesman brings an action against the husband for articles fur- 
 b ished the wife on the husband's credit, he makes nut a prima facie 
 case by showing that the wife was livin g with her husband, and that 
 the articles were in kind, quality , anH quantity c nitahlp tn the hus- 
 
 sons and Domestic Relations, 89; Weingreen v. Beckton (Sup.) 102 N. T. 
 Supp. 520; Wilson v. Thomass (Sup.) 127 N. T. Supp. 474; Keller v. Phillips, 
 39 N. Y. 351 ; James McCreery & Co. v. Martin, 84 N. J. Law, 626, 87 Atl. 433, 
 47 L. R. A. (N. S.) 279 ; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384 ; 
 Debentam v. Mellon, 6 App. Oas. 24, 5 Q. B. Div. 403. A husband is liable 
 for goods sold his wife upon his credit and by his authority or assent, ex- 
 press or implied. Noel v. O'Neill, 128 Md. 202, 97 Atl. 513. 
 
 67 Nathan v. Morgenthau (Sup.) 114 N. T. Supp. 796; French v. Bmiingame, 
 155 Mo. App. 548, 134 S. W. 1100; Valois v. Gardner, 122 App. Div. 245, 106 
 N. Y. Supp. 808; Howell v. Blesh, 19 Okl. 260, 91 Pac. 893; McCreery v. 
 Scully, 67 Pa. Super. Ot. 524. See, also, Mettler v. Snow, 90 Conn. 690, 98 
 Atl. 322, Ann. Cas. 1917C, 578. Where there has been no open separa- 
 tion the presumption arises that the husband and wife are living together. 
 BALL V. LOVETl' (Sup.) 98 N. Y. Supp. 815, Cooley Cas. Persons and Do- 
 mestic Relations, 85; Stoutenborough v. Kammel, 123 lU. App. 487. 
 
 The husband will not be liable if the goods are sold on. the credit of 
 the wife alone. Mattar v. Wathen, 99 Ark. 329, 138 S. W. 455 ; H. Leonard 
 & Sons V. Stovre, 166 Mich. 681, 132 N. W. 454 ; Kichburg v. Sherwood (Tex. 
 Civ. App.) 105 S. W. 524; Noel v. O'Neill, 128 Md. 202, 97 Atl. 513; Wick- 
 strom V. Peck, 179 App. Div. 855, 167 N. Y.- Supp. 408. One who has sold 
 clothing and other dry goods to a wife and charged to her account can- 
 not collect therefor from the husband without proving that the husband 
 had neglected to make adequate provision for the support of the wife, in 
 view of Civ. Code, § 174. Coulter Dry Goods Co. v. Munford, 38 Cal. App. 
 231, 175 Pac. 900. 
 
 lis Freestone v. Butcher, 9 Car. & P. 643; Ruddock v. Marsh, 1 Hurl. & N. 
 601; Wagner v. Nagel, 33 Minn. 348, 23 N. W. 308; May v. Josias (Sup.) 159 
 N. Y. Supp. 820. Duty to support wife and family, see ante, p. so. The 
 language of Code Pub. Gen. Laws 1904, art. 45, § 5, that the husband isnot 
 liable "upon any contract made by his wife in her own name and upon her 
 own responsibility" does not apply to contracts made by a wife as agent, 
 or on his credit for necessaries. Noel v. O'Neill, 128 Md. 202, 97 Atl. 513. 
 
§§ 69-70) CONTRACTS BY WIFE AS HUSBAND'S AGENT 173 
 
 band 's fortune and station in life.°° This pre sumption, however, as 
 aTready stated, is one of fact, a nd not of law . ■ Ootiabitation does 
 not necessarily, but only prima facie, empower the wife to render 
 her husband liable, even for necessaries. He may rebut this pre- 
 sumption by showing that she was forbidden to pledge his credit.'" 
 And, since his liability, where he suitably maintains her, is based on 
 the theory of an agency in fact, the tradesman's ignorance of the 
 fact that the wife had been forbidden to pledge his credit is alto- 
 gether immaterial, provided, of course, as heretofore explained, the 
 husband has not so held out his wife 'as authorized to pledge his 
 credit as to be estopped to deny her agency.''- It is contended, it 
 was said in a leading English case, "that there is a presumption that 
 a wife living with her husband is authorized to pledge her hus- 
 band's credit for necessaries ; that the goods supplied by the plain- 
 tiffs were, as it is admitted they were, necessaries ; and that, as 
 a consequence, an implied authority is established. ' This contention 
 is founded upon an erroneous view of what is meant by the term 
 
 «»Debenham v. Mellon, 6 App. Cas. 24, 5 Q. B. Div. 403; Woodward v. 
 Rarnes, 43 Vt. 330 ; Keller v. Phillips, 39 N. T. 351 : - Alley v. Winn, 134 
 Mass. 77, 45 Am. Rep. 297 ; FEINEK v. BOYNTON, 73 N. J. Law, 136, 62 Atl. 
 420, Cooley Cas. Persons and Domestic Relations, 84; Hays v. Cox (Mo. 
 App.) 185 S. W. 1164; BALL v. LOVETT (Sup.) 98 N. Y. Supp. 815, Cooley 
 Cas. Persons and Domestic Relations, 85 ; B. Attman & Co. v. Durland, 185 
 App. Div. 114, 173 N. Y. Supp. 62 ; Edminston v. Smith, 18 Idaho, 645, 92 Pac. 
 842, 14 L. R. A. (N. S.) 871, 121 Am. St. Rep. 294; Stoutenborough v. Rammel, 
 123 111. App. 487. The statute authorizing married women to contract does 
 not abrogate the common-law liability of the husband for necessary com- 
 forts and supplies furnished the wife, suitable to their condition and degree 
 in life. Ponder v. D. W. Morris & Bro., 152 Ala. 531, 44 South. 651. To 
 the same effect, see Ruhl v. Heintze, 97 App. IMv. 442, 89 N. Y. Supp. 1031. 
 
 70 Jolly V. Rees, 15 C. B. (N. S.) 628; Debenham v. Mellon, 6 App. Cas. 
 24, 5 Q. B. Div. 403 ; Woodward v. Barnes, 43 Vt. 330 ; Keller v. Phillips, 39 
 N. Y. 3511 ; Mattar v. Wathen, 99 Ark. 329, 138 S. W. 455 ; Meuschke v. Riley, 
 159 Mo. App. 381, 140 S. W. 639; Wickstrom v. Peck, 155 App. Div. 523, 
 140 N. Y. Supp. 570. A shopkeeper, who has notice that husband claimed 
 to be providing for his wife, and had forbidden credit, sells to the wife on 
 the credit of the husband at the risk of being able to show that the hus- 
 band failed to perform his duty, and that the goods furnished were actual- 
 ly necessary for the then present or immediate future use of the wife. B. 
 Altman & Co. v. Durland, 185 App. Div. 114, 173 N. Y. Supp. 62. 
 
 71 Ante, p. 170. As was pointed out in Debenham v. Mellon, 6 App. Cas. 
 24, 5 Q. B. Div. 408, the statement in Johnson v. Sumner, 27 Law J. Exch. 
 341, that, "if a man and his wife live together, it matters not what private 
 arrangement they make, the wife has all the usual authorities of wife," ap- 
 plied only to the case where an appearance of authority has been created 
 by the husband's acts, or by his assent to the acts of his wife. 
 
174 CONTEACTS, CONVEYANCES, AND QUASI CONTKACT; (Cll. 4 
 
 'presumption' in cases where it has befen used with reference to 
 a wife's authority to pledge her husband's credit for necessaries. 
 There is a presumption that she has such authority in the sense 
 that a tradesman supplying her with necessaries upon her hus- 
 band's credit, and suing him, makes out a prima facie case against 
 him upon proof of that fact, and of the cohabitation. But this is 
 a ^mere presumption of fact, founded upon the supposition that 
 wives cohabiting with their husbands ordinarily have authority 
 to manage in their own way certain departments of the household 
 expenditure, and to pledge their husbands' credit in respect of mat- 
 ters coming within those departments. Such a presumption or 
 prima facie case is rebuttable, and is rebutted when it is proved 
 in the particular case, as here, that the wife has not that authority. 
 If this were not so, the principles of agency,.upon which, ex hypoth- 
 esi, the liability of the husband is founded, would be practically 
 of no eiJect." ''' ' ~ 
 
 Same^Where They are Living Apart 
 
 Where a wife is living apart from her husband, there is no pre- 
 sumption that she has any authority in fact to pledge his credit 
 even for necessaries.'"' On the contrary, the presumption is that 
 she has not. The person who sells to her under such circumstances 
 either sells to her' as a feme sole, or, if he knows that she is married, 
 he is given reason to suspect, from- the fact of her living apart from 
 her husband, that her relations with him are such that she has 
 not been authorized to pledge his credit.''* Under these circum- 
 stances it is incumbent upon the tradesman, in order to hold the 
 husband liable, to rebut the presumption by showing authority 
 in fact, or else to bring the case within the rule to be presently 
 explained, giving a wife absolute power to bind her husband where 
 he neglects to provide for her.''° 
 
 7 2 Per Thesiger, L. J., in Debenham y. Mellon, 6 App. Cas. 24 5 Q B 
 Div. 403. 
 
 "Real V. Durkee, 25 111. 503; Cany v. Patton, 2 Ashm. (Pa.) 140; Hass v. 
 Brady, 49 Misc. Kep. 235, 96 N. Y. Supp. 449; Maiden Hospital v. Murdock 
 218 Mass. 73, 109 N. E. 457. 
 
 7 4Quinlan v. Westervelt, 65 Misc. Eep. 547, 120 N. Y. Supp. 879, hold- 
 ing that one who sells necessaries to a married woman, whom he knows 
 is living apart from her husband, cannot hold the husband therefor, on 
 the theory that she was authorized to make the purchases on his credit, 
 or that the provision made for her by him was inadequate. 
 
 7 5 Johnson v. Sumner, 27 Law J. Exch. 341; Walker v. Simpson 7 Watts 
 & S. (Pa.) S3, 42 Am. Dec. 216; Mitchell v. Treanor, 11 Ga, 324, 56 Am. Dec. 
 
§§ 69-70) COifTEACTS BY WIFE AS HUSBAND'S AGENT 175 
 
 Where the Husband Neglects to Support the Wife — Agency of Ne- 
 cessity 
 Where a husband neglects to' provide for or support his wi fe. 
 even if they are cohabiting, the wife has an absolute right to pledg e 
 hi s credit for necessaries.'" She has this right even though 
 there is no agency in fact, tor the agency is implied in law with- 
 out regard to the fact/' The husband's liabil-ity is based on the 
 theory of agency, but the agency is implied as a matter of law be- 
 cause of the husband's legal duty to support his wife. The husband 
 will not be liable for necessaries purchased by his wife if he shows 
 that credit was given to the wife herself,'* or that she had a sufH- 
 cient separate income,'" or that he made her a sufficient allow- 
 
 421 ; Rea v. Durkee, 25 111. 503 ; Stevens v. Story, 43 Vt. 327 ; Sturtevant v. 
 Starin, 19 Wis. 268 ; Benjamin v. Dockham, 132 Mass. 181 ; Inhabitants of 
 Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669 ; Harttmann v. Tegart, 
 12 K^n. 177; Vusler v. Cox, 53 N. J. Law, 5il6, 22 Atl. 347. Where husband 
 and wife are living separate and apart, it devolves upon a physician giv- 
 ing credit to the wife for medical services to show that the wife was not at 
 fault, or that the husband autliorized or assented to the performance of 
 the services. Steele v. Leyhan, 210 111. App. 201. 
 
 '6 Duty to support wife and family, see ante, p. 80. 
 
 "Eastland v. Burchell, 3 Q. B. Div. 436; Seybold V.- Morgan, 43 111. App. 
 39; W. & J. Sloane v. Boyer (Sup.) 95 N. Y. Supp. 531; Pierpont v, Wilson, 
 49 Conn. 450; Dexter v. Booth, 2 Allen (Mass.) 559;, Raynes v. Bennett, 114 
 Mass. 424 ; Benjamin v. Dockham, 134 Mass. 418 ; Watkins v. De Armond, 89 
 Ind. 553; Eiler v. CruU, 99 Ind. 375; Walker v. Laighton, 31 N. H. Ill; 
 Ferren v. Moore, 59 N. H. 106; Keller v. Phillips, 39 JST. T. 351; Cromwell 
 V. Benjamin, 41 Barb. (N. Y.) 558; Woodward v. Barnes, 43 Vt. 330; Barr 
 v. Armstrong, 56 Mo. 577 ; Eames v. Sweetser, 101 Mass. 78 ; BBRGH v. WAR- 
 NER, 47 Minn. 250, 50 N. W. 77, 28 Am. St. Rep. 362, Cooley Cas^ Persons 
 and Domestic Relations, 85; Dorrance v. Dorrance, 257 Mo. 317, 165 S. W. 
 783; Devendorf v. Emerson, 66 Iowa, 698, 24 N. W. 515. The implied pow- 
 er of a wife to bind her husband for necessaries, where it exists, is for her 
 own benefit, and not for the benefit of those with whom she may deal. Zent 
 V. Sullivan, 47 Wash. 315, 91 Pac. 1088, 13 L. R. A. (N.' S.) 244, 15 Ann. 
 Cas. 19. 
 
 7 8 Jewsbury v. Newbold, 26 Law -I. Exch. 247; Pearson v. Darrington, 32 
 Ala. 227; Stammers v. Macomb, 2 Wend. (N. Y.) 454; Moses v: Fogartie, 2 
 Hill (S. C.) 335 ; Carter v. Howard, 39 Vt. 106 ; Goodson v. Powell, 9 6a. App. 
 497, 71 S. E. 765; Skinner v. Tirrell, 15S Mass. 474, 34 N. E. 692, 21 L. R. 
 A. 673, 38 Am. St. Rep. 447. 
 
 7 9 Freestone v. Butcher, 9 bar. & P. 643; Swett v. Penrice, 24 Miss. 416; 
 Weisker v. Lowenthal, 31 Md. 413. 
 
 soAtkyns v. Pearce, 26 Law J. C. P. 252; Oatman v. Watrous, 120 App. 
 Div. 66, 105 N. Y. Supp. 174 ; Nathan v. Morgenthau (Sup.) 114 N. Y. Supp. 
 796; B. Altman & Co. v. Durland, 185 App. Div. 114, 173 N. Y. Supp. 62; 
 Harshaw v. Merryman, 18 Mo. 106. A husbanU is liable for necessaries fur- 
 
176 CONTRACTS, CONVEYANCES, AND QUASI CONTEACTS (Ch. 4 
 
 The rule applies all the more forcibly, if possible, where the 
 husband unlawfully separates from his wife without making suit- 
 able provision for her, or if he, by his conduct, causes her to leave 
 him.'^ A husband is bound to support his wife, and if he leaves 
 her without the means of subsistence she becomes "an agent of ne- 
 cessity to supply her wants upon his credit." ^^ This right arises 
 where the husband" has driven the wife away, or where she has 
 left him in consequence of ill treatment and reasonable and well- 
 grounded apprehension of further violence,*^ or because her hus- 
 band has rendered his home an unfit place for her to live, as by 
 introducing wonjen of profligate habits,** or in consequence of the 
 commission by him of such acts as would entitle her to a divorce 
 from bed and board.*'' If the wife leaves her husband without jus- 
 tifiable cause, she forfeits the right to obtain her necessaries at 
 his expense.*" In case she returns, and is received by her hus- 
 
 nished his wife on Ms credit, unless it appears by way of defense that the 
 wife was amply supplied with similar articles, or that she had been fur- 
 nished with ready money to pay therefor. Frank v. Carter, 219 N. Y. 35, ll.S 
 N. E. 549, L. R. A. 1917B, 1288, modifying judgment 164 App. Div. 913, 149 
 N. Y. Supp. 268. 
 
 SI 2 Kent, Comm. 146; Bolton v. Prentice, 2 Strange, 1214; Mayhew v. 
 Thayer, 8 Gray (Mass.) 172; Sultan v. Misrahi, 47 Misc. Eep. 655i, 94 N. 
 Y. Supp. 519; State v. Newman, 91 Conn. 6, 98 Atl. 346, 3 A. L. E. 103; 
 Wolf V. Schulman, 45 Misc. Rep. 418, 90 N. T. Supp. 368 ; CLOTHIER v. SI- 
 GLE, 73 N. J. Law, 419, 63 Atl. 865, Cooley Cas. Persons and Domestic Rela- 
 tions, 88; Eiler v. Crull, 99 Ind. 375; Snover v. Blair, 25 N. J. Law, 94; 
 Walter v. Laighton, 31 N. H. 111. As to the effect of an offer to return, see 
 note 86, infra. 
 
 82 Eastland v. Burchell, 3 Q. B. Div. 436. And see Sultan v Misrahi, 47 
 Misc. Rep. 655, 94 N. Y. Supp. 519; Charles M. Decker & Bros. v. Moyer 
 (Sup.) 121 N. Y. Supp. 630; In re Rudowsky's Estate, 181 111 App. 318; Har- 
 rigan v. Cahill, 100 Misc. Rep. 48, 164 N. Y. Supp. 1005. 
 
 '83 Houliston V. Smyth, 2 .Car. & P. 22 ; Baker v. Oughton, 130 Iowa, 35, 
 106 N. W. 272 ; Beaudette v. Martin, 113 Me. 310, 93 Atl. 758 ; In re New- 
 man's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145; Reynolds v. 
 Sweetser, 15 Gray (Mass.) 78. 
 
 '8 4 Houliston V. Smyth, 2 Car. & P. 22; Descelles v. Kadmus, 8 Iowa, 51; 
 Kemp V. Downham, 5 Har. (Del.) 417. 
 
 8 5 Hancock v. Merrick, 10 Cush. (Mass.) 41; Rea v. Durkee, 25 111. 503; 
 Barker v. Dayton, 28 Wis. 367, 383 ; Thorpe v. Shapleigh, 67 Me. 235. 
 
 8 6Manby v. Scott, 1 Mod. 124; Etherington v. Parrott, 2 Ld. Raym. 1006; 
 Kossler v. Kessler, 2 Cnl. App. 509, 83 Pac. 257 ; Morgenroth v. Spencer, 124 
 Wis. 564, 102 N. W. 1086; Bevier v. Galloway, 71 111. 517; McCutchen v. Mc- 
 Gahay, 11 Johns. (N. Y.) 281, 6 Am. Dec. 373 ; HaTttmann v. Tegart, 12 Kan. 
 177; Collins v. Mitchell, 5 Har. (Del.) 369; Oinson v. Heritage, 45 Ind. 73, 
 15 Am. Rep. 258; Denver Dry Goods Co. v. Jester, 60 Colo. 290, 152 Pac. 903, 
 L. R. A. 1917A, 957; Johnson v. Coleman, 13 Ala. App. 520, 69 South. 318; 
 
§§ 69-70) CONTRACTS BY WIFE AS HUSBAND'S AGENT 177 
 
 band, the right revives, but only as to future necessaries.'^ This 
 is true where she offers to return, and he refuses to receive her.** 
 It follows from this doctrine that, where a wife elopes, and com- 
 mits adultery, she loses the right to pledge her husband's credit 
 for necessaries;*" and this has been held to be true even where 
 the husband committed adultery first, and turned her away.°" 
 Where, however, he has connived at her adultery, it is no defense 
 as against his liability."^ One living in adultery with a wife who 
 has left her husband, even for justifiable reasons, cannot make the 
 husband liable for necessaries furnished, by him.°^ 
 
 Sanger Bros. v. Trammpll (Tex. Civ. App.) 198 S. W. 13.75; State v. Newman, 
 91 Conn. 6, 98 Atl. 346, 3 A. L. R. 103; Thome v. Kathan, 51 Vt. 520; Belk- 
 nap V. Stewart, 38 Neb. 304, 56 N. W. 881, 41 Am. St. Eep. 729; "Walker v. 
 Laighton, 31- N. H. Ill ; STEINFIELD v. GIRRARD, 103 Me. 151, 68 Atl. 630, 
 Cooley Cas. Persons and Domestic Relations, 89 ; holding, also, that the trades- 
 man's ignorance of the separation did not affect the rule. In Walker v. 
 Laighton, 31 N. H. Ill, it wag said: "The husband who has causelessly 
 deserted his wife may in good faith seek a reconciliation, and if the wife, 
 under such circumstances, refuses to live with him again, without good cause, 
 she becomes from that time the party in the wrong, and has no longer any 
 authority to pledge his credit, even for necessaries, more than she would 
 have had if she had herself originally left him without cause. * * * And 
 it makes ho difference that he desires her to change her resiaencc, and to 
 go to live with him at some other place, not unsuitable for her residence, 
 since he has the right to choose his own residence, and it is the duty of th& 
 wife and children to conform to his wishes in this respect." See, also, Rum- 
 ney v. Keyes, 7 N. H. 571; Kimball v. Keyes, 11 Wend. (N. Y.) 33. A hus- 
 band was liable for necessary medical attention rendered to his wife during 
 childbirth, and tc his minor children, though, at time such services, were 
 rendered, the wife In the nervous state incident to pregnancy had tempo- 
 rarily left the husband and had gone to her mother ; such temporary sepa- 
 ration not constituting abandonment. Bryant v. Lane (Ala. App.) 81 South. 
 364. 
 
 8 7 Oinson v. Heritage, 45 Ind. 73, 15 Am. Rep. 258; Williams v. Prince, 
 3 Strob. (S. C.) 490 ; Reese v. Chilton, 26 Mo. 598. There is authority to the 
 effect that the husband will also be liable for debts contracted during sepa- 
 ration. Robison v. Gosnold, 6 Mod. 171. 
 
 fis Manby v. Scott, 1 Mod. 124, 131 ; McGahay v. Williams, 12 Johns. (N. Y.) 
 293; McCutchen v. McGahay, 11 Johns. (N. Y.) 281, 6 Am. Dec. 373; Cunning- 
 ham V. Irwjln, 7 Serg. & R. (Pa.) 247, 10 Am. Dec. 458; Henderson v. String- 
 er, 2 Dana (Ky.) 291 ; Clement v. Mattison. 3 Rich. (S. C.) 03. 
 
 89 Ham V. Toovey, Selw. N. P. 271; Morris v. Martin, 1 Strange, 647; Em- 
 mett v. Norton, 8 Car. & P. 506 ; Hardie v. Grant, Id. 512 ; Cooper v. Lloyd, 
 6 C. B. (N. S.) 519. 
 
 »o Govier v. Hancock, 6 Term R. 603. But see Needham v. Bremner, L. 
 B. 1 C. P. 583. 
 
 01 Norton v. Fazan, 1 Bos. & P. 226; Wilson v. Glossop, 19 Q. B. Diy. 379;. 
 Ferren v. Moore, 59 N. H. 106. 
 
 »2Almy v. Wilcox, 110 Mass, 443. 
 TIFF.P.& D.Ebl.(3d Ed.)— 12 
 
178 CONTRACTS, CONVEYANCES, AND QUASI c6nTEACTS (Ch. 4 
 
 Where husband and wife live apart by mutual agreement, the 
 husband's liability for necessaries furnished her continues in the 
 absence of any provision for her support."^ It also continues where 
 he has agreed to make her an allowance, if he does not pay it.°* 
 When, however, he furnishes her a sufficient allowance, she can- 
 not bind him ; °= and the fact that the person who furnishes her 
 with goods has no knowledge of the allowance is altogether im- 
 material, for in supplying her hd acts at his peril. ^^ The allowance 
 must be sufficient for the wife's necessaries, and whether it is so 
 or not is a question of fact for the jury,"^ except where she agrees 
 to accept a stipulated allowance, and not to apply to her husband 
 for more. In that case the question of the sufficiency of the al- 
 lowance is not for the jury, since it is excluded by the express terms 
 of the settlement.^^ 
 
 93 Hodgkinson v. Fletcher, 4 Camp. 70 ; Koss v. Eoss, 69 111. 569 ; Kim- 
 ball V. Keyes, 11 Wend. (N. Y.) 33 ; Lockwood v. Thomas, 12 Johns. (N. T.) 
 248; Walker v. Laighton, 31 N. H. Ill; Dixon v. Hurrell, 8 Car. & P. 
 717 ; Fredd v. Eves, 4 Har. (Del.) 3S5 ; McCarter v. McCarter, 10 Ga. App. 
 754, 74 S. E. 308; In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L.. 
 E. A. 1916C, 1145; Inhabitants of Alna v. Plummer, 4 Greenl. (Me.) 258. 
 But see McKee v. Cimningham, 2 Cal. App. 684, 84 Pac. 260. 
 
 94 Beale v. Arabin, 36 Law T. (N. S.) 249 ; Nurse v. Craig, 2 Bos. & P. 
 {N. E.) 148. Husband, to defeat liability for necessaries furnished wife for 
 support of herself and children, on ground of agreement with wife, where- 
 by such necessaries were to be purchased with amount given wife weekly, 
 is required to show that wife has been furnished with sufficient money to 
 pay cash for all such necessaries. Best & Co. v. Cohen (Sup.) 174 N. Y. 
 Supp. 639. 
 
 9s Todd V. Stoakes, 1 Salk. 116; Dixon v. Hurrell, 8 Car. & P. 717; Mizen 
 V. Pick, 3 Mees. & W. 481; Kemp v. Downham, 5 Har. (Del.) 417; Baker 
 V. Barney, 8 Johns. (N. Y.) 72, 5 Am. Dec. 326; Kimball v. Keyes, 11 Wend. 
 (N. Y.),33. 
 
 98 Mizen v. Pick, 3 Mees. & W. 481; Baker v. Barney, 8 Johns. (N. Y.) 72, 
 5 Am. Dec. 326; Kemp v. Downham, 5 Har. (Del.) 417. 
 
 9 7 Hodgkinson v. Fletcher, 4 Camp. 70; Emmett v. Norton, 8 Car. & P. 
 506; Pearson v. Darrington, 32 Ala. 227. 
 
 98 Eastland v. Burchell, 3 Q. B, Div. 432. In this case it was said: "The 
 authority of a wife to pledge the credit of her husband is a delegated, not 
 an inherent, authority. If she binds him, she binds him only as his agent. 
 This is a well-established doctrine. If she leaves him without cause and 
 without consent, she carries no implied authority with her to maintain 
 herself at his expense. But if he wrongfully compels her to leave his home, 
 he is bound to maintain her elsewhere, and if he makes no adequate pro- 
 vision for this purpose she becomes an agent of necessity to supply her 
 wants upon his credit. In such a case, inasmuch as she Is entitled to a 
 provision suitable to her husband's means and position, the sufficiency of 
 any allowance which he makes under these circumstances is necessarily a 
 
§§ 69-70) CONTRACTS BY WIPE AS HUSBAND's AGENT 179 
 
 Where the husband and wife are living apart, the husband can- 
 not, any more than when they are living together,"" deprive his 
 wife of the right to pledge his credit, where he neglects to make 
 suitable provision for her, by giving notice that he will not be 
 responsible for her necessaries.^ As has already been stated, a 
 husband is not liable for necessaries furnished his wife where cred- 
 it was given to her, and not to him,^ nor where she has a separate 
 and sufficient income.' 
 
 What are Necessaries for the Wife ' 
 
 The necessaries for which a wife may ple dge her husband's rred- 
 it under the r ules which have just been explained are those thing s 
 which are essent ial to her health and comfort, according to th e 
 rank and fortune of her hus band. Necessaries, as applied to a wife, 
 are not qpnfined to those-articles of food and^clothing which are 
 required to sustain life and preserve deceiicy, but include such ar- 
 ticles of utility as- are suitable to maintain her according to the 
 estate and degree of her husband.* Wearing apparel,' medical 
 
 s 
 
 question for the jury. Where, however, the parties separate by mutual 
 consent, they may make their own terms; and so long as they continue the 
 separation these terms are binding upon both. Where the terms are, as in 
 this case, that the wife shall receive a specified income for her maintenance 
 and shall not apply to the husband for anything more, how can any au- 
 thority to claim more be implied? It is excluded by the express terms of 
 the arrangement." And see Johnson v. Sumner, 27 Law J. Exch. 341 ; Alley 
 V. Winn, 134 Mass. 77, 45 Am. Rep. 297. 
 
 9 9 Ante, p. 172. 
 
 1 Harris v. Morris, 4 Bsp; 41 ; Bolton v. Prentice, 2 Strange, 1214 ; W. 
 & J. Sloane v. Boyer (Sup.) 95 N. Y. Supp. 531; Pierpont v. Wilson, 49 
 Conn. 450; Black v. Bryan, IS Tex. 453; Watkins v. De Armond, 89 Ind. 553. 
 - 2 Skinner v. Tirrell, 159 Mass. 474, 34 N. E. 692, 21 I>. JR. A. 673, 38 Am. 
 St. Rep. 447; Jewsbury v. Newbold, 26 Law, J. Exch. 247; Pearson v. Dar- 
 rington, 32 Ala. 227; Stammers v. Macomb, 2 Wend. (N. Y.) 454; Moses v. 
 Fogartie, 2 Hill (S. C.) 335 ; Carter v. Howard, 39 Vt. 106. 
 
 3 Freestone v. Butcher, 9 Car. & P. 643; Swett v. Penrice, 24 Miss. 416; 
 Weisker v. Lowenthal, 31 Md. 413. 
 
 * Raynes v. Bennett, 114 Mass. 424 ; Gately Outfitting Co. v. Vinson (Mo. 
 App.) 182 S. W. 133 ; Wilder v! Brokaw, 141 App. Div. 811, 126 N. X. Supp. 
 98S; Wickstrom v. Peck, 163 App. Div. 608, 148 N. Y. Supp. 596; Brown 
 V. Moudy, 199 111. App. 85. See, also, Ross v. Johnson," 125 111. App. 65, 
 holding that the test is not wholly whether the article is necessary and 
 useful. A set of "Stoddard's Lectures," purchased by a wife, was not neces- 
 saries for which the husband was liable by virtue of the marital relation. 
 Shuman v. Steinel, 129 Wis. 422, 109 N. W. 74, 7 L. B. A. (N. S.) 1048, 116 
 Am. St. Rep. 961, 9 Ann. Cas. 1064. 
 
 5 Hardenbrook v. Harrison, 11 Colo. 9, 17 Pac. 72 ; Fitzmaurice v. Buck, 
 77 Conn. 390, 59 Atl. 415 ; FBINBR v. BOYNTON, 73 N. J. Law, 136, 62 Atl. 
 
180 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Ch. 4 
 
 attendance," reasonable dentistry,' household supplies,' furniture,* 
 a gold watch and certain jewelry,^" have been held to be neces- 
 saries. Legal expenses incident to a suit for restitution of con- 
 jugal rights,^^ or, incident to a suit for divorce, where there is 
 reasonable cause for instituting suit,^^ have also been held to be 
 necessaries. By the weight of authority in this country, however, 
 legal expenses in suits for divorce are not necessaries.^^ As was 
 said by the Connecticut court : "The duty of providing necessaries 
 for the wife is strictly .marital, and is imposed by the common law 
 in reference only to a state of coverture, and not of divorce. By 
 that law a valid contract of marriage was and is indissoluble, and 
 therefore by it the husband could never have been placed under 
 obligation to provide for the expenses of its dissolution." ^* Legal 
 
 420, Cooley Cas. Persons and Domestic Relations, 84; Boss v. Johnson, 125 
 111. App. 65. 
 
 6 Harris v. Lee, 1 P. Wms. 482 ; Mayhew v. Thayer, 8 Gray (Mass.) 172 ; 
 Cothran v. Lee, 24 Ala. 380; Johnson v. Coleman, 13 Ala. App. 520, 69 South. 
 318; Ketterer v. Nelson, 146 Ky. 7, 141 S. W. 409, 37 L. B. A. (N. S.) 754; 
 Thrall Hospital v. Caren, 140 App. Div. 171, 124 N. Y. Supp. 1038 ; Schneider 
 V. Hosenbaum, 52 Misc. Rep. 143, 101 N. Y. Supp. 529 (services of nurse). Web- 
 ber V. Spannhake, 2 Redf. Sur. (N. Y.) 258. 
 
 7 Freeman v. Holmes, 62 Ga. 556 ; Gilman v. Andrus, 28 Vt. 241, 67 Am. 
 Dec. 713 ; Clark v. Tenneson, 146 Wis. 65, 130 N. W. 895, 33 L. R. A. (N. S.) 
 426, Ann. Cas. 1912C, 141. 
 
 8 Hall V. Weir, 1 Allen (Mass.) 261 ; Fischer v. Brady, 47 Misc. Rep. 401, 
 94 N. Y. Supp. 25 ; Perkins v. Morgan, 36 Colo. 360, 85 Pac. 640. 
 
 Hunt V. De Blactuiere, 5 Bing.. 550. But see Caldwell v. Blanchard, 191 
 Mass. 489, 77 N. E. 1036, as to purchase by wife on her own credit 
 
 10 Raynes v. Bennett, 114 Mass. 424; Cooper v. Haseltine, 50 Ind. App. 
 400, 98 N. E. 437. 
 
 11 Wilson V. Ford, L. B. 3 Exch. 63. 
 
 12 Brown V. Ackroyd, 25 Law J. Q. B. 193 ; Ottaway v. Hamilton, 3 0. P. 
 Div. 393; Porter v. Briggs, 38 Iowa, 166, 18 Am. Rep. 27. In the latter 
 case it was held that it must be shown that the services were necessary 
 for the protection of the wife's person, liberty, or reputation, distinguishing 
 Johnson v. Williams, 3 G. Greene (Iowa) 97, 54 Am. Dec. 491, where legal 
 services in divorce proceedings were held not to be necessaries. 
 
 13 Pearson v. Darrington, 32 Ala. 227; Zent v. Sullivan, 47 Wash. 315, 91 
 Pac. 1088, 13 L. R. A. (N. S.) 244, 15 Ann. Cas. 19; Clarke v. Burke, 65 
 Wis. 359, 27 N. W. 22, 56 Am. Rep. 631 ; Morrison v. Holt, 42 N. H. 478, 
 SO Am. Dec. 120; Johnson v. Williams, 3 G. Greene (Iowa) 97, 54 Am. 
 Dec. 491 ; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695 ; Dorsey v. Goode- 
 now, Wright (Ohio) 120; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Dow 
 v. Eyster,' 79 111. 254; Shelton v. Pendleton, 18 Conn. 423; Meaher v. 
 Mitchell, 112 Me. 416, 92 Atl. 492, L. R. A. 1915C, 467, Ann. Cas. 1917A, 
 688; Coffin V. Dunham, 8 Cush. (Mass.) 404, 54 Am. Dec. 769. 
 
 14 Shelton v. Pendleton, 18 Conn. 423. 
 
§§ 69-70) CONTRACTS BY WIFE AS HUSBAND'S AGENT 181 
 
 services rendered in successfully defending a married woman 
 against a criminal prosecution are clearly necessaries.^' 
 
 Money is not to be regarded as necessaries. "At law it is entirely 
 clear that a married woman has no right to borrow money on her 
 husband's credit, even for the purchase of necessaries." ^'', There 
 are a number of cases which hold that where a person has lent 
 money to a wife deserted by her husband for the purchase of neces- 
 saries (even, it seems, where the loan is to the wife, and not on the 
 husband's credit), and the money has been so used, he can recover 
 it from the husband in equity.^' This doctrine, however, is not 
 clear on principle ; and it has lately been expressly repudiated in 
 Massachusetts, on the ground that there is no principle upon which 
 it can be sustained.^' As far as precedent is concerned, the rule is 
 amply sustained, but the reasoning of the Massachusetts court in 
 the case referred to renders it very doubtful. 
 
 1= Conant v. Burnham, 133 Mass. 503, 43 Am. Rep. 532. And see dictum 
 in Porter v. Briggs, 38 Iowa, 166, 18 Am. Kep. 27. Protection of a wife's 
 character in a suit against her by employing counsel is as much a necessary 
 as food, etc., within the rule requiring one to provide his wife with nec- 
 essaries suitable to their station in life. Hamilton v. Salisbury, 133 Mo. 
 App. 718, 114 g. W. 563. 
 
 16 Skinner v. Tirrell, 159 Mass. 474, 34 N. E. 692, 21 L. R. A. 673, 38 
 Am. St. Rep. 447. A husband is not liable for money loaned to his wife with 
 which to pay for a dress ordered by her ; she not being abandoned, and he 
 not having promised to repay the loan. Beitman v. Scheyer (Sup.) 165 N. 
 Y. Supp. 452. 
 
 17 Harris v. Lee, 1 P. Wms. 482; Marlow v. Pitfeild, Id., 559; Deare v. 
 Soutten, L. "R. 9 Eq. 151 ; Jenner v. Morris, 3 De Gex, F. cfe J. 43 ; Kenyon 
 V. Farrls, 47 Conn. 510, 36 Am. Rep. 86; Walker v. Simpson, 7 Watts & S. 
 (Pa.) 83, 42 Am. Dec. 216; Leuppie v. Osborn's Ex'rs, 52 N. T. Eq. 637, 29 
 Atl. 433 ; De Brauwere v. De Brauwere, 203 N. T. 460, 96 N. E. 722, 38 L. R. 
 A. (N. S.) 508, affirming 144 App. Div. 521, 129 N. T. Supp. 587. Before 
 plaintiff can recover from defendant for money advanced to defendant's wife, 
 after notice that defendant would not be responsible for his wife's debts, 
 he must show defendant's financial condition, his failure to provide for his 
 wife, and that the money was advanced for necessaries. Klopfer v. Mitten- 
 thal (Sup.) 117 N. Y. Supp. 93. 
 
 1* Skinner v. Tirrell, 159 Mass. 474, 34 N. E. 692, 21 L. R. A. 673, 38 Am. 
 St. Rep. 447. 
 
182 CONTKAOTS, CONVEYANCES, AND QUASI CONTEACTS (Ch. 4 
 
 HUSBAND'S LIABILITY FOR WIFE'S FUNERAL EX- 
 PENSES 
 
 71. It is the husband's duty to give his wife burial, and, where he 
 neglects it, he will be liable for the necessary funeral ex- 
 penses to any one who pays them. 
 
 Analogous to the husband's -liability for necessaries purchased by 
 his wife on his credit, where he neglects to provide for her, is the 
 liability imposed upon him by law to pay her necessary funeral 
 expenses. The common law imposes upon the husband the duty of 
 giving his wife a proper burial; and if he neglects to perform 
 this duty, and some other person performs it, and pays the neces- 
 sary funeral expenses, he may recover the money paid from the 
 husband, by an action quasi ex contractu, as for money paid to 
 the use of the husband; or if he furnishes the coffin and other 
 things necessary for the burial, he may recover their value. ^° In 
 the case of necessaries purchased by the wife on the credit of her 
 husband, the latter's liability is based on the theory of agency; 
 but it is agency in law only, or quasi agency, for ther^ is no agency 
 in fact. In the case of funeral expenses of the wife, the husband's 
 liability is not necessarily based on any theory of agency. In both 
 cases the real ground of his liability is the same, resting, as it does, 
 on the duty of the husband which he has neglected, and which an- 
 other has performed for him. In both cases the law imposes a lia- 
 bility quasi ex contractu. 
 
 Since the husband is liable for his wife's funeral expenses, it 
 would seem to follow necessarily that when he pays them he pays 
 his own debt, and, in the absence of any agreement, is not entitled 
 to reimbursement out of the wife's separate estate; and it has 
 ^een so held.^° Some of the courts, however, have taken the con- 
 trary view.^^ 
 
 isAmbrose v. Kerrison, 20 Law J. C. P. 135; Bradshaw v. Beard, 12 C. 
 B. (N. S.) 344; Jenkins v. Tucker, 1 H. Bl. 90; Cunningham^ v. Reardon, 
 98 Mass. 538, 96 Am. Dec. 670 ; Sears v. Giddey, 41 Mich. 590, 2 N. W. 917, 
 32 Am. Rep. 168; Ketterer v. Nelson, 146 Ky. 7, 141 g. W. 409, 37 L. R. 
 A. (N. S.) 754; Stone v. Tyack, 164 Mich. 550, 129 N. W. 694; Gustin v 
 Bryden, 205 111. App. 204. 
 
 2 Smyley v. Reese, 53 Ala. 89, 25 Am. Rep. 598; Staples' Appeal, 52 Conn. 
 425 ; In re Werlnger's Estate, 100 Cal. 345, 34 Pac. 825. 
 
 21 Gregory v. Lockyer, 6 Madd. 90; In re McMyn, 33 Ch. Div. 575; McCue 
 
§ 72) husband's liability fob wipe's ANTENUPTLiL DEBTS 183 
 
 The husband's liability is not affected by the fact that the wife 
 left ptoperty by a will to another person, and that the latter as- 
 sisted in the arrangements and direction of the funeral.'^ And the 
 fact that the wife is living apart from her husiband, through her 
 own fault, though it would relieve him, as has been shown, from 
 liability for her necessaries, will not relieve him from liability for 
 her funeral expenses.^' 
 
 HUSBAND'S LIABILITY FOR WIFE'S ANTENUPTIAL 
 
 DEBTS 
 
 72. The husband becomes liable on marriage for his wife's ante- 
 nuptial debts. But his liability lasts only during the cov- 
 erture, after which the liability of the wife revives. This 
 liability has been very generally abolished by statute. 
 
 The husband is liable during coverture for the debts contra cted 
 b y his wife while sole.^* His liability, however, continues only 
 during coverture, and debts not put in judgment during that time 
 cannot thereafter be enforced against him^° Although he may 
 have received a large fortune in acquiring his wife^-pefsofial prop- 
 erty by the marriage, yet he retains the same, on her death, free 
 
 V. Garvey, 14 Hun (N. Y.) 562; McClellan v. Filson, 44 Ohio St. 184, 5 N. 
 E. 861, 58 Am. Kep. 814 (in this case, however, the funeral expenses were 
 paid out of the wife's estate by her exfecutor, not the husband). In this 
 connection see, also, Schneider v. Breier's Estate, 129 Wis. 446, 109 N. W. 
 ■99, 6 L. K. A. (N. S.) 917, where it was held that the statute (St. 1898, §§ 
 2341, 2342) exempting the separate estate oiC a married woman from lia- 
 bility for the husband's debts does not exempt her estate from liability 
 for her funeral expenses, though the materials and labor were ordered by 
 the husband and he would be liable at common law. St. 1898, § 3852, pro- 
 vides that funeral expenses shall be paid from the estate of the decedent, and 
 does not except from the operation thereof the estate of a married woman 
 decedent. ' 
 
 22 Sears v. Giddey, 41 Mich. 590, 2 N. W. 917, 32 Am. Rep. 168. 
 
 23 Seybold v. Morgan, 48 111. App. 39. . 
 
 24 1 Bl. Comm. 443; 2 Kent, Comm. 143; Thomond v. Suffolk, 1 P. Wms. 
 462, 469 ; Heard v. Stamford, 3 P. Wms. 409 ; Barnes v. Underwood, 47 IST. 
 Y. 351 ; Cole v. ShurtlefC, 41 Vt. 311, 98 Am. Dec. 587 ; Platner v. Patchin, 
 19 Wis. 333; Howes v. Bigelow, 13 Mass. 384; Bryan v. Doolittle, 38 Ga. 
 255; Hetrick v. Hetrick, 13 Ind. 44; Morrow v. Whitesides' Ex'r, 10 B. 
 Mon. (Ky.) 411; Heyman v. Heyman, 19 Ga. App. 634, 92 S. E. 25; Haw- 
 thorne v. Beckwith, 89 Va. 786, 17 S. E. 241, 
 
 25 See the cases cited above. 
 
184 CONTRACTS, CONVEYANCES, AND QUASI CONTRACTS (Ch. 4 
 
 from any liability to answer for her antenuptial debts.^° And even 
 a court of equity will not help creditors in subjecting what the hus- 
 band has received to their claims.^^ The husband is equally liable 
 for his wife's debts contracted dum sola where she brings him no 
 fortune.^* Her choses in action, not reduced to possession by the 
 husband during coverture, however, may be reached by the w;ife's 
 creditors after her death.^' On the theory that the husband's li- 
 ability for his wife's debts rests on the fact that marriage vests 
 in the husband all his wife's chattels, and the right to reduce her 
 choses in action to possession, whether the husband is an infant 
 or not, it is held that an infant husband is liable for his wife's ' 
 debts.'" The husband's liability is limited to the obligations that 
 were legally binding on his wife ; and hence, if his wife was an 
 infant, he is only liable for her necessaries.^^ If the wife survives 
 her husband, she again becomes liable for her debts contracted dum 
 sola, although she may have brought her husband a fortune from 
 which he has neglected to pay them.'^ In an action to enforce the 
 husband's liability, the husband and wife must be sued jointly. '' 
 In most states by statute the common-law liability of the husband 
 for his wife's antenuptial debts has been abolished.'* 
 
 2 Heard v. Stamford, 3 P. Wms. 409; Thomond v. Suffolk, 1 P. Wms. 469; 
 Barnes v. Underwood, 47 N. T. 351-; Cureton v. Moore, 55 N. C. 204. 
 
 2 7 Heard v. Stamford, 3 P. Wms. 409; Morrow v. WMtesides' Ex'r, 10 B. 
 Mon. (Ky.) 411; Cureton v. Moore, 55 N. C. 204. 
 
 2 8 Thomond v. Suffolk, 1 P. Wms. 469. 
 
 2 9 Heard v. Stamford, 3 P. Wms. 409; ante, p. 131. 
 
 3 Reeves, Dom. Rel. 234; Roach v. Quick, 9 Wend. (N. Y.) 238; Butler v. 
 Breck, Y Mete. (Mass.) 164, 39 Am. Dec. 768; Cole v. Seeley, 25 Vt. 220, 60 
 Am. Dec. 258. 
 
 31 Anderson v. Smith, 33 Md. 465; Bonney v. Reardin, 6 Bush (Ky.) 34. 
 
 82 Woodman v. Chapman, 1 Camp. 189; Parker v. Steed, 1 Lea (Tenn.) 206. 
 
 33 MitchinsOn v. Hewson, 7 Term R. 348 ; Gage v. Reed, 15 Johns. (N. Y.) 
 403; Cole v. Shurtleff, 41 Vt. 311, 98 Am. Dec. 587; Platner v. Patchin, 19 
 Wis. 333. 
 
 3* See the statutes of the various states ; Smith v. Martin, 124 Mich. 34, 
 82 N. W. 662 ; Taylor v. Rountree, 15 Lea (Tenn.) 725 ; Baker v. Lukens, 35 
 Pa. 146; Johnson v. Griffiths & Co. (Tex. Civ. App.) 135 S. W. 683; Zaeh- 
 ary v. Cadenhead, 40 Ala. 236. See, als6, Clark v. Miller, 88 Ky. 108, 10 
 S. W. 277, holding that under the Kentucky statute the hushand is not 
 liable except to the amount he may have received from the wife. But see 
 Kies v. Young, 64 Ark. 381, 42 S. W. 669, 62 Am. St. Rep. 198; Ferguson 
 V. Williams, 65 Ark. 631, 44 S. W. 1126; McMurtry v. Webster, 48 111. 123; 
 Connor v. Berry, 46 III. 370, 95 Am. Dec. 417; Alexander v. Morgan 31 
 Ohio St. 546. . i 
 
§ 73) wipb's equitable and statutory sepaeate estate 185 
 
 CHAPTER V 
 
 WIFE'S EQUITABLE AND STATUTORY SEPARATE ESTATE 
 
 73. Equitable Separate Estate. 
 
 74. Jus Disponendi. 
 
 75-77. Power to Charge by Contract 
 
 78. Statutory Separate Estate. 
 
 79. Jus Disponendi. 
 
 80-82. Power to Charge by Contract. 
 
 The extent to which property rights are affected by coverture 
 at common law, and the power of a married woman, at common 
 law, to dispose of her property, and to enter into contracts, have 
 been explained. Attention was also called to the fact that the 
 common-law doctrine does not apply to the full extent in equity, 
 nor under modern statutes. In this chapter the doctrine of courts 
 of equity in relation to property settled to the separate use of 
 the wife, called her "equitable separate estate," including her power 
 to dispose of the same, and contract in relation to it, will be ex- 
 plained. The law governing the separate statutory estate of a mar- 
 ried woman, and her powers in relation thereto, will then be con- 
 sidered. 
 
 EQUITABLE SEPARATE ESTATE 
 
 73. In equity, a married woman may hold as a feme sole, and free 
 from the control of her husband, property, real or personal, 
 settled to her sole and separate use. To create an equi- 
 table separate estate in the wife, there must be an intention 
 that the wife shall take, and that the husband shall not. 
 
 To mitigate the hardships arising from the rules of the common 
 law giving to the husband rights in his wife's property, equity has 
 recognized, or rather created, a dottrine by which a married woman 
 may acquire and hold a separate estate, both real and personal, 
 independently of her husband, and free from his control.^ For this 
 purpose equity treats married women, in relation to their separate 
 
 1 A married woman's separate estate is a creation of equity, devised for 
 Her protection to evade the harsh and unjust dogmas of the law with re- 
 spect to the rights of her husDand over her property, which exist only during 
 coverture, is suspended by diseoverture, and revives upon remarriage, unless 
 
186 wife's equitable and statutory separate estate (Ch. 5- 
 
 property, as If sole.^ This doctrine is a creature of equity only, 
 and was unknown to the common law. The doctrine applies only 
 to property held to the wife's separate use by the terms of some 
 agreement or conveyance, as under antenuptial or postnt;ptial 
 agreements with her husband, gifts from her husband or strangers, 
 or convej^ances, devises, or bequests.' Trust estates, not lim- 
 ited to her separate use, are not equitable separate estates falling 
 within this rule.* 
 
 It is well settled that to create an equitable separate estate the 
 intention to create it must clearly appear. As has often been said 
 in the cases, the words used in the grant or other instrument must 
 clearly show that it is intended that the wife shall take, and the 
 husband shall not. If this definitely appears, the form of the words 
 is immaterial.' No trustee need be named for the wife. If no 
 
 defeated during the intermediate period. Littleton v. Sain, 126 Tenn. 461, 
 150 S. W. 423, 41 L. R. A. (N, S.) 1118. 
 
 2 Hulme V. Tenant, 1 Brown, Oh. 16, 1 Wghite & T. Lead. Gas. Eq. 679, and 
 authorities there cited; Ja<iues v. Methodist Episcopal Church, 17 Johns. 
 (N. T.) 549, 8 Am. Dec. 447. And see authorities, hereinafter referred to. 
 
 3 3 Pom. Eq. Jur. § 1101; Holliday v. Hively, 19S Pa. 335, 47 Atl. 988; 
 Wallace v. Wallace, 82 111. 530 ; Musson v. Trigg, 51 Miss. 172 ; Harris v. 
 McElroy, 45 Pa. 216 ; Lovewell v. Schoolfield, 217 Fed. 689, 133 C. C. A. 449, 
 certiorari denied Hill v. Lovewell, 239 U. S. 644, 36 Sup. Ct. 165, 60 L. Ed. 
 483; Neville v. Cheshire, 163 Ala. 300, 50 South. 1005; Rutledge v. Rutledge, 
 177 Mo. App. 469, 119 S. W. 489; Stark v. Kirchgraber, 186 MSo. 633, 85 
 S. W. 868, 105 Am. St. Rep. 629. While the quality of a wife's separate es- 
 tate as such ceasesi when she becomes discovert, yet, upon her remarriage, 
 property which, during the lifetime of her first husband, belonged to her as 
 part of her separate estate, again partakes of that equity. Hughey v. W^arn- 
 er, 124 Tenn. 725, 140 S. W. 1058, 37 L. R. A. (N. S.) 582. Where in 1859, a 
 married woman received a gift of money, donor intending thsit it should- 
 be for her separate use, and after receiving it woman delivered money to her 
 husband, who by investment in other property mingled it with his individual 
 estate, such property became separate estate for use of wife; husband holding 
 as implied trust. Gamer v. Lankford, 147 Ga. 235, 93 S. E. 411. 
 
 4 3 Pom. Eq. Jur. § 1098; Taylor v. Meads, 4 De Gex, J. & S. 597. 
 
 5 Buck V. Wroten, 24 Grat. (Va.) 250 ; Travis v. Sitz, 135 Tenn. 156, 185 
 S. W. 1075, L. R. A. 1917A, 671; Rixey's Adm'r v. Deitrick, 85 Va. 42, 6 
 S. E. 617. The word "separate" has acquired a technical meaning, and 
 where it is used in this connection, it is sufficient to create a separate 
 estate. But the word "sole" has not necessarily this effect. Massy v. Row- 
 en, L. R. 4 H. L. 288. The courts have held sufficient the words "for her 
 sole and separate use," Goodrum v. Goodrum, 43 N. C. 313 ; Parker v. 
 Brooke, 9 Ves. 583, 587; "as her separate estate," Fox v. Hawkes, 13 Ch.> 
 Div. 822; Swain v. Duane, 48 Cal. 358; "for her own use, independent of 
 her husband," Wagstaff v. Smith, 9 Ves. 520; "for her own use and bene- 
 fit, independent of any other person," Margetts v. Barringer, 7 Sim. 4S2;. 
 
§ 74) POWER TO DISPOSE OF EQUITABLE SEPARATE ESTATE 187 
 
 one is named as trustee, equity will nevertheless treat the property 
 as her separate estate, and hold the husband as trustee.' 
 
 The property settled to a wife's separate use may be real or per- 
 sonal or any interest therein, as well as the rents and income 
 therefrom,^ and investments made from the savings of such rents 
 or income ' or from the proceeds of sales." Personal property in 
 possession, settled to the separate use of the wife, and not dis'-- 
 posed of by her) passes to the husband on her death jure mariti, 
 and not to her personal representatives, for a wife's separate es- 
 tate lasts only during coverture.^" 
 
 POWER TO DISPOSE OF EQUITABLE SEPARATE ES- 
 TATE 
 
 74. In most jurisdictions a married woman has the power to dis- 
 pose of her equitable separate estate, real or personal, 
 though no power to do so is expressly conferred by the in- 
 strument creating it, provided the power is not expressly 
 excluded. In some jurisdictions it is held that the power 
 must be expressly conferred. 
 
 Whether or not a married woman has the power to dispose of 
 her equitable separate estate is a question upon which the author- 
 ities are in direct conflict. It has been established by the court of 
 chancery in England, and the doctrine is recognized in some of our 
 
 "that she shall receive and enjoy the Issues arid profits," Tyrrell v. Hope, 
 2 Atk. 561. The courts have passed on the sufficiency of innumerable phras- 
 es. For a collection of the cases, see the notes to 3 Pom. Eq. Jur. § 1102, 
 and Stew. Husb. & W. § 200. The principle is well settled that, as held in 
 Ee Peacock's Trusts, 10 Ch. Div. 490, an intention must appear that the 
 wife shall take, and that the husband shall not ; but there are many in- 
 consistencies in the eases in applying this principle to particular words. 
 
 8 Story, Eq. Jur. § 1380, 3 Pom. Eq. Jur. § 1100 ; Bennet v. Davis, 2 P. 
 Wms. 316; Newlands v. Paynter, 4 Mylne & G. 408; Jones v. Clifton, 101 
 U. S. 225, 25 L. Ed. 908 ; Porter v. Bank of Rutland, 19 Vt. 410 ; Firemen's 
 Ins. Co. of Albany v. Bay, 4 Barb. (N. Y.) 407 ; Varner's Appeal, 80 Pa.- 140. 
 
 7 3 Pom. Eq. Jur. § 1103 ; Cheever v. Wilson, 9 Wall. 108, 19 L. Ed. 604 ; 
 Vizonneau v. Pegram, 2 I^eigh (Va.) 1S3. 
 
 3 Barrack v. McCuUoch, 3 Kay & J. 110 ; Gore v. Knight, 2 Vern. 535. 
 But see, contra, Ordway v. Bright, 7 Heisk. (Tenn.) 681. 
 
 9 Justis V. English, 30 Grat. (Va.) 565 ; City Nat. Bank of Providence, 
 R I., V. Hamilton, 34 N. J. Eq. 15S. 
 
 1 2 Macq. Husb. & W. 28S ; Molony v. Kennedy, 10 Sim. 254 ; Brown's 
 Adm'rs ' v. Brown's Adm'rs, 6 Humph. (Tenn.) 127. 
 
188 wife's equitable and statutory separate estate (Ch. 5 
 
 states, that, even though no power to dispose of her separate equi- 
 table estate is expressly conferred by the instrument creating it, she 
 -has such power, on the theary that the power is a necessary incident 
 of the estate.^^ According to this doctrine, she may dispose of her 
 equitable separate estate, whether it is real or personal, either by 
 will, or by gifts, transfers, or conveyances, provided the instru- 
 ment creating the estate does not expressly or by clear implication 
 restrain her from doing so. And she may do so without the con- 
 sent or concurrence of her husband or her trustee, in the absence 
 of express restraint in' the instrument.^" In some states the courts 
 have refused to recognize this doctrine, and have held that a wife 
 has no power to dispose of her equitable separate estate, unless the 
 power has been expressly conferred.^^ 
 
 Where the wife has the unrestricted power to dispose of her equi- 
 table separate estate, she may dispose of it in any way she may see 
 fit, and she may therefore give or convey it to her husband as well 
 as to any other person ; but the disposition in such a case "must be 
 free, — neither the result of flattery, nor of force, nor harsh and cruel 
 treatment." ^* 
 
 11 Fettiplace v. Gorges, 1 Ves. Jr. 46; Rich v. Cockell, 9 Ves. 369; Lech- 
 mere V. Brotheridge, 32 Beav. 353; Farington v. Parker, L. R. 4 Eq. 116; 
 Radford 'v. Carwile, 13 W. Va. 572; Frary v. Booth, 37 Vt. 78; Imlay v. 
 Huntington, 20 Conn. 146 ; Jaques v. Methodist Episcopal Church, 17 Johns. 
 (N, Y.) 548, 8 Am. Dec. 447 ; Leaycraft v. Hedden, 4 N. J. Eq. 551 ; Buchan- 
 an V. Turner, 26 Md. 1; Penn v. Whitehead, 17 Grat. (Va.) 503, 94 Am. 
 Dec. 478; Bank of Greensboro v. Chambers, 30 Grat. (Va.) 202, .32 Am. Rep. 
 661 ; Bain v. Bufe's Adm'r, 76 Va. 371 ; . Collins v. Wassell, 34 Ark. 17 ; Mill- 
 er V. Voss, 62 Ala. 122; Dallas v. Heard, 32 Ga. 604; Smith v. Thompson, 
 2 MacArthur (D. C.) 291; Miller v. Newton, 23 Cal. 554; Pond v. Carpen- 
 ter, 12 Minn. 430 (Gil. 315) ; Burch v. Breckinridge, 16 B. Mon. (Ky.) 482. 
 OS Am. Dec. 553; Metropolitan Bank of St. Louis v. Taylor, 53 Mo. 444. 
 The jus dispbnendl extcaids to her lands in fee in England. Taylor v. Meads, 
 4 De Gex, .J. & S. 597, 604. But in this country it has been held otherwise. 
 Radford v. Carssile, 13 W;. Va. 572; Bank of Greensboro v. Chambers, 30 
 Grat. (Va.) 202, 32 Am. Rep. 661 ; Annstroug v.. Ross, 20 N. J. Eq. 109. 
 
 12 Jaques v. Methodist Episcopal Church, 17 Johns. (N. Y.) 548, 8 Am. Dec. 
 447, and other cases cited above. 
 
 i3Ewing V. Smith, 3 Desaus. (S. C.) 417, 5 Am. Dec. 557; Hardy v. Hol- 
 ly, 84 N. C. 661; HoUiday v. Hively, 198 Pa. 335, 47 Atl. 988; Maurer's Ap- 
 peal, 86 Pa. 380; Metcalf v. Cook, 2 R. I. 355 (criticised In Ives v. Harris, 
 7 R. I. 413) ; Doty v. Mitchell, 9 Smedes & M. (Miss.) 435 ; Bressler v. Kent, 
 61 in. 426, 14 Am. Rep. 67 ; His v. Gosling, 1 Lea (Tenn.) 560. 
 
 1* Jaques v, Methodist Episcopal Church, 17 Johns. (N. Y.) 549, 8 Am. 
 Dec. 447. 
 
§§ 75-77) POWER TO CHARGE EQUITABLE ESTATE BY CONTRACT 189 
 
 POWER TO CHARGE EQUITABLE SEPARATE ESTATE 
 
 BY CONTRACT 
 
 75. In England, and in most of our states, a married woman has the 
 
 power, as an. incident to her separate estate, to charge it by 
 contract, unless the power is excluded in the creation of the 
 estate. In some states the power must be expressly con- 
 ferred. 
 
 76. In England, and in some of the states, this power is not limited 
 
 to contracts for the benefit of the estate, or even for the 
 benefit of the wife generally. In some states it is so limit- 
 ed. In others it is limited to contracts for the benefit of 
 the estate itself. 
 
 77. In England, and in all of the states, the contract must be made 
 
 upon the faith of the estate. In England, and in some 
 states, whether it was so made is to be ascertained from all 
 the surrounding circumstances. In other states it must 
 expressly purport to charge the estate. 
 
 The Court in Chancery in England having established the doc- 
 trine of the wife's separate property, it was held to follow that a 
 married woman could not claim the protection of equity in the en- 
 joyment and disposition of her property without being subject to 
 the burdens incident to ownership. While her contracts were void 
 at law, equity introduced the innovation that, if she entered into an 
 obligation which, if she were sole, would constitute a personal obli- 
 gation against her, and purported to contract on the faith and cred- 
 it of her separate estate, though she did not render herself personal- 
 ly liable, yet her separate estate was thereby charged; and it was 
 considered to be immaterial whether the contract was for the bene- 
 fit of the separate estate or not, or even whether it was for her bene- 
 fit or not.^^ "The separate property of a married woman," it was 
 said, "being a creature of equity, it follows that, if she has a power 
 to deal with it, she has the other power incident to property in gen- 
 eral, namely, the power of contracting debts to be paid out of it; 
 and, inasmucn as her creditors have not the means at law of com- 
 pelling payment of those debts, a court of equity takes upon itself 
 
 15 Matthewman's Case, L. R. 3 Bq. 781, 787; Johnson v. Gallagher, 3 De 
 Gex, F. & J. 494, 509; Hnlme v. Tenant, 1 Brown, Oh. 16, 1 White & T. 
 'Lead. Cas. Eq. 679, and authorities there collated. 
 
190 wife's equitable and statutory separate estate (Ch. 5 
 
 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." " 
 
 Some of the American courts have recognized and followed the 
 doctrine of the English court, and hold that the power to charge the 
 estate with debts is incident to the ownership of the estate; that 
 it need not be expressly conferred by the instrument creating the 
 'estate; and, further than this, that the debt need not be for the 
 benefit of the estate, or even for the benefit of the wife. Thus it has 
 been held that separate property of a married woman, conferred 
 upon her by marriage settlement (and the rule would apply to sepa- 
 rate property conferred in any other way), which provides that 
 she shall have the complete control of it as though the marriage 
 had never taken place, and contains no restraint upon alienation, 
 causes her to be regarded in a court of equity, with regard to such 
 property, as a feme sole, and she may, by her agreement, freely en- 
 tered into, charge it even for the payment of her husband's debts.^^ 
 
 In some states it is held that the contract must be for the benefit 
 of the estate. In these states a married woman has no power to 
 bind her separate estate at all, even by expressly charging it, unless 
 the contract is for the benefit of the estate itself. '^^ In other states 
 it seems to be the rule that the contract must be either for the 
 benefit of the separate estate or for the benefit of the wife gen- 
 erally.^' 
 
 In some states, as has been, seen, it is held that a married woman 
 has no power to dispose of her separate estate, unless that power 
 is expressly conferred by the instrument creating the estate. So, on 
 the same reasoning, it is there held that she cannot charge her sepa- 
 rate estate by contracts in relation thereto unless the power has 
 been expressly conferred upon her in the creation of the estate.^" In 
 
 10 Owens v. Dickenson, Craig & P. 48. 
 . 17 Bradford v. Green way, 17 Ala. 79t, 52 Am. Dec. 203. And see Bain v. 
 Buff's Adm'r, T6 Va. 371. 
 
 18'Willard v. Eastliam, 15 Gray (Mass.) 328, 77 Am. Dec. 366; Heburn v. 
 Warner, 112 Mass. 271, 17 Am. Rep. 86 ; Musson v. Trigg, 51 Miss. 172 ; 
 Owens V. Johnson, 8 Baxt. (Tenn.) 265. 
 
 18 Yale V. Dederer, 18 N. Y. 265, 72 Am. Dec. 503 ; ICantrowitz v. Pi-atli- 
 er, 31 Ind. 92, 99 Am. Dec. 587 ; Wilson v. Jones, 46 Md. 349; Homeopathic 
 Mut. Life Ins. Co. v. Marshall, 32 N. J. Eq. 103; Eliott v. Gower, 12 R. I. 
 79, 34 Am. Rep. 600 ; Dale v. Robinson, 51 Vt. 20, 31 Am. Rep. 669 ; Lillard 
 V. Turner, 16 B. Mon. (Ky.) 374. 
 
 20 Wlllard y. Eastham, 15 Gray (Mass.) 328, 77 Am. Dec. 366 ; Heburn v.* 
 
§§ 75-77) POWER TO CHARGE EQUITABLE ESTATE BY CONTRACT 191, 
 
 no case can a married woman charge her separate estate by contract 
 if she is restrained from doing so by the instrument creating it. 
 
 It must be borne in mind that under this doctrine a married wo- 
 man has no more power in, equity than she has at law to bind her- 
 self personally by her contracts, even where they are made in rela- 
 tion to, and for the benefit of, her equitable separate estate. Equity 
 merely lays hold of the estate' to satisfy the debt, and does not un- 
 dertake to hold her personally liable. She binds the estate only, 
 and not herself. 
 
 It is not every contract of a married woman that is binding upon 
 her equitable separate estate, even if it is for the benefit of the es- 
 tate. In all jurisdictions it is held that the contract must have been 
 made on the faith of that estate. ^^ If a man, for instance, should 
 stU a married woman goods, not knowing she had a separate estate, 
 but trusting her personally, he could not afterwards hold the estate 
 liable. 
 
 As to the sufficiency of the circumstances to show that the con- 
 tract sought to be enforced was made on the faith of the separate 
 estate, so as to constitute a charge upon it, the ^courts are not 
 agreed, and the rules are different in the different jurisdictions. 
 According to the English doctrine the contract need not show by 
 express terms that it was made on the credit of the estate ; but it 
 is sufficient if it appears from all the surrounding cii-cumstances 
 that it was made with intent to charge the estate. ^^ And this rule 
 has been substantially adopted by the courts of some of our states.^* 
 It was said in an English case : "In order to bind her separate es- 
 tate by a general engagement, it should appear that the engagement 
 was made with reference to, and upon the faith and credit of, that 
 estate; and the question whether -it was so or not is to be judged of 
 by the court upon all the circumstarxes of the case." ^* In some of 
 
 Warner, 112 Mass. 271, 17 Ain. Rep. 86; Adams v. Mactey, 6 Rich. Eq. 
 (S. 0.) 75; Musson v. Trigg, 51 Miss. 172; Owens v. Johnson, 8 Baxt. (Tenn.) 
 265. 
 
 21 Johnson v. Gallagher, 3 De Gex, F. & J. 494 ; Jaques v. New York M. E. 
 Church, 17 Johns. (N. Y.) 548, 8 Am. Dec. 447; Johnson v. Cummins, 16 N. 
 J. Eq. 97, 84 Am. Dec. 142. 
 
 22 Lewin, Trusts, 767 ; Perry, Trusts, § 659 ; Johnson v. Gallagher, 3 De 
 Gex, F. & J. 494; Matthewman's CaSe, h. R. 3 Eq. 781; Shattock v. Shat- 
 tock, L. R. 2 Eq. 182. 
 
 23 Sprague v. Tyson, 44 Ala. 338: De Baun v. Van Wagoner, 56 Mo. 347; 
 Avery v. Vansickle, 35 Ohio St. 270 ; Harshberger's Adra'r v. Alger, 31 Grat. 
 (Va.) 52; Radford v. Carwile, 13 W. Va. 572. 
 
 24 Johnson v. Gallagher, 3 De Gex, P. & J. 494. 
 
192 wife's equitable and statutory separate estate (Ch. 5 
 
 the states it is held that the contract must expressly purport to 
 charge the separate estate.^" And in still other states it is held that 
 the contract must expressly purport to charge the estate if it is 
 not for the benefit of the estate itself, but for the benefit of the wife 
 generally.^ ° 
 
 STATUTORY SEPARATE ESTATE 
 
 78. The common law, in so far as it affects the property of the wife, 
 has been greatly modified by modern statutes. The result 
 of these statutes may be stated thus : 
 
 (a) Perhaps in all the states the real estate owned by a woman 
 
 at tlie time of her marriage remains her separate property 
 after marriage. 
 
 (b) In most states real estate acquired by her after marriage, by 
 
 devise, descent, or purchase, becomes and remains her 
 separate property. 
 
 (c) In some states real estate acquired in any way becomes and 
 
 remains her separate property. 
 
 (d) In most states the personal property owned by a woman at 
 
 the time o^her marriage remains her separate property 
 after mai^B^ 
 
 (e) In most state^Bersonal property acquired by her after mar- 
 
 riage, by bequest, descent, or purchase, becomes and re- 
 mains her separate property. 
 
 It has been seen in another chapter that at common law the hus- 
 band acquires certain rights in his wife's real estate, and acquires 
 the absolute right to all her personalty in possession, and the right 
 to reduce her choses in action to possession. As already stated, the 
 legislatures have in modern times enacted laws changing the com- 
 mon law to a greater or less extent in the different states. In no 
 state is the common law now in force to its full extent. The stat- 
 utes vary so much in the different states that we can only refer 
 to them in a general way. 
 
 asWillard v. Eastham, 15 Gray (Mass.) 328, 77 Am. Dec. 366; Heburn 
 V. "Warner, 112 Mass. 271, 17 Am. Rep: 86; Wilson v. Jpnes, 46 Md. 849; 
 Miisson V. Trigg, 51 Miss. 172; Owens v. Johnson, 8 Baxt. (Tenn.) 265. 
 
 2i Yale V. Dedever, IS N. Y. 265, 72 Am. Dec. 503; Wilson v. Jones, 46 Md. 
 349; Homeopathic Mut. Life Ins. Co. v. Marshall, 32 N. J. Bq. 103; Eliott 
 V. Gower, 12 R. I. 79, 34 Am. Rep. 600; Dale v. Robinson, 51 Vt. 20, 31 Am. 
 Rep. 669; Lillard v. Turner, 16 B. Mon. (Ky.) 374, 
 
§ 78) STATUTORY SEPARATE ESTATE 193 
 
 Statutes have been passed in all the states of this country, per- 
 haps, declaring that the real and personal property owned by a wo- 
 man remains her separate property on her marriage, and that all 
 property, real or personal, acquired by her after marriage, by devise 
 or descent, purchase or gift, becomes her sole and separate prop- 
 erty. ^^ 
 
 In some states there are constitutional provisions intended to se- 
 cure the property rights of married women,''' and statutes passed in 
 accordance therewith are not objectionable, in that they give great- 
 er protection to married women, than the Constitution requires.^' 
 
 The statutes are, as a rule, so clearly worded that there is no diffi- 
 culty in determining their effect in so far as they give the wife cer- 
 tain property owned or acquired by her as her separate estate. The 
 chief difficulty has been in determining the powers and liabilities of 
 the wife in respect of such property. 
 
 2T See the statutes of tlie various states. In some instances it Is provided 
 that the statute shall not apply to property acquired by gift from the hus- 
 band. See Comp. St. Neb. 1905, c. 53, § 4290—1 ; P. S. Vt. § 3040. For Eng- 
 lish statute, see Married "Women's Property Act (St. 45 & 46 Vict. c. 75 [1882]). 
 " Under the Vermont statute (P. S. §§ 3037, 3040) the instrument or decree by 
 which a married woman attains the property must specify that it is to be 
 her separate property. Ainger v. White's Adm'x, 85 Vt. 446, 82 Atl. 666 ; 
 Seaver v. Lang, 92 Vt. 501, 104 Atl. 877. 
 
 A married woman has the same status as her husband as to the right to 
 acquire property. Farmers' State Bank of Ada v. Keen (Okl.) 167 Pac. 207; 
 Caylor Lumber^Co. v. Mays (Okl.) 174 Pac. 521. Under the New Jersey act 
 of March 25, 1852 (P. Jj. p. 407), a married woman took the legal title to 
 property conveyed or devised to her, and not simply the equitable title. De 
 Baun's Ex'x v. De Baun, 119 Va. 85, 89 S. B. 239. Under the Emancipation 
 Act of 1913, a husband had no interest in a lot owned by the wife at time 
 of her marriage, and the entire title thereto remained in the wife and might 
 be levied upon and sold by her creditor as her property. Henderson Groceiy 
 Co. V. Johnson, 141 Tenn. 127, 207 S. W. 723. Under the Constitution and 
 ^aws of South Carolina, the real and personal property of a 'married woman, 
 whether held by her at the time of her marriage or accruing to her there- 
 after by inheritance or otherwise, becomes her separate property, and she 
 may dispose of it to the same extent as if she were unmarried ; the husband 
 having no marital rights such as existed at common law, but being under the 
 same obligation as at common law to support and maintain the wife and 
 family. In re Carpenter (D. C.) 179 Fed. 743. 
 
 28Ck)nst. Ark. 1874, art. 9, §§ 7, 8; Const. S. O. 1895, art. 17, § 9j Const. 
 W. Va. art. 6, § 49. 
 
 29 Pelzer v. Campbell, 15 S. C. 581, 40 Am. Kep. 705. 
 
 TIFF.P.& D.Eel.(3d Ed.)— 13 
 
194 wife's equitable and statutory separate estate (Ch. 5 
 
 Construction — Effect in General 
 
 The general rule for the construction of these statutes is that they 
 are to be so construed as to gwe full eflfect to their terms ; ^° but, 
 since they are in derog-ation of the common law, they are not to be 
 extended further. They do not impliedly abrogate the common 
 law beyond their terms." Thus, where a statute provided that the 
 wife should hold her separate estate to her sole and separate use, 
 and that it should not be subject to the disposal of her husband, nor 
 be liable for his debts, it was held that the husband was neverthe- 
 less entitled to an estate by the curtesy, as the statute could have 
 full effect without impairing his right thereto.'^ Nor will, such an 
 enactment deprive the husband of the right to administer on his 
 wife's estate. ^^ 
 
 The general effect of the statutes is to abrogate the husband's ti- 
 tle to the wife's property, secured to him by the common law, and 
 to vest in her both the legal and the equitable title,^* and to secure , 
 to her the same control and power of management she would have 
 if sole, except in so far as her right to charge the property for debts 
 is restricted.^^ 
 
 Statutory and Equitable Separate Estate Distinguished 
 
 Statutes creating a statutory separate estate do not necessarily 
 destroy the wife's right to a separate estate in equity; but an 
 equitable separate estate may be created and may exist at the same 
 time as the statutory separate estate.^* The two estates are, how- 
 
 so Kriz V. Peege, 119 Wis. 105, 95 N. W. 108. 
 
 31 Host, p. 197. 
 
 32Jolmson V. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Cole v. Van 
 Riper, 44 111. 58. Contra, Billings v. Baker, 28 Barb. (N. T.) 348. And see 
 King V. Davis (C. C.) 137 Fed. 222. 
 
 33 Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; Shumway v. 
 Cooper, 16 Barb. (N. Y.) 556; Vallance v. Bausch, 28 Barb. (N. Y.) 633; Ran- 
 som V. Nichols, 22 N. Y. 110. 
 
 3 4 Gunn V. Hardy, 107 Ala. 609, 18 South. 284. So long as the wife keeps 
 her property separate from that of her husband, it is her separate property. 
 In re Hill (D. C.) 190 Fed. 390. The common-law rights of the husband are 
 during the life of the wife abrogated. McGuire v. Cook, 98 Ark. 118, 135 S. 
 W. 840, Ann. Cas. 1912D, 776. And the wife holds her lands as free from 
 the common-law rights of the husband as if she were unmarried. Deutsch 
 V. Rohlfing, 22 Colo. App. 543, 126 Pac. 1123. Since a married woman may 
 hold real estate in her own right, if the real estate be a home place in which 
 she resides, the presence of her husband does not detract from her full pos- 
 session and ownership. Graham v. Graham, 202 Ala. 56, 79 South 450 
 
 3 5 Wood V. Wood, 83 N. Y. 575. See post, p. 201. 
 
 86 Richardson v. Stodder, 100 Mass. 528 ; Musson v. Trigg, 51 Miss. 172 ; 
 
§ 78) STATUTORY SEPARATE ESTATE 195 
 
 ever, essentially different. Under the statute a married woman 
 takes the legal title to both real and personal property, wholly ex- 
 empt from the marital rights of the husband, and free from his con- 
 trol or interference. The estate so derived is no longer a mere crea- 
 ture of equity, dependent on its power alone for protection and its 
 principles for the rights of enjoyment; but, in all cases where by 
 the nature of the conveyance, gift, devise, or bequest an absolute 
 legal title would be vested in a feme sole, the same title will, by 
 virtue of the statute, be vested in a feme covert, and the property 
 will be held, owned, possessed, and enjoyed by her the same as 
 though she were unmarried. Her rights and the remedies incident 
 thereto are legal, as distinguished from the equitable rights and 
 remedies incident to the equitable separate estate.' ' 
 Constitutionality of Statutes — Retrospective Construction 
 
 In most states there are constitutional provisions pirohibiting the 
 Legislature from passing retrospective laws. "Every statute which 
 takes away or impairs vested rights acquired under existing laws, 
 or creates a new obligation, or imposes a new duty, or attaches a 
 new disability in relation to transactions or considerations already 
 past, must be deemed retrospective," and therefore in violation of 
 
 HoUiday v. Hively, 198 Pa. 335, 47 Atl. 988. The Virginia statute (Code 1904, 
 § 2294) provides specifically that separate equitable estates are not abolished. 
 Acts 1913, c. 26, removing the disabilities of coverture in respect of married 
 women, does not affect the creation or operation of equitable separate es- 
 tates. Travis v. Sitz, 135 Tenn. 156, 185 S. W. 1075, L. R. A. 1917A, 671. A 
 husband executed a deed of land to the wife, who on the same day con- 
 veyed the land to a trustee for the husband's heirs. The husband died prior 
 to the Married "VToman's Act of February 28, 1887 (Acts 1886-87, p. 80). HeW, 
 that the wife acquired only the equitable title, and the legal title descended 
 to the husband's heirs at his death, and the Married Woman's Act did not de- 
 vest the heirs of such title, and a will subsequently made by the wife was 
 ineffectual. Neville v. Cheshire, 163 Ala. 390, 50 South. 1005. 
 
 37 Cookson V. Toole, 59 111. 515 ; Williams v. Hugunin, 69 111. 214, 18 Am. 
 Rep. 607; Conway v. Smith, 13 Wis. 140; Musson v. Trigg, 51 Miss. 172; 
 Frierson v. Williams, 57 Miss. 451. Compare Colvin v. Currier, 22 Barb. (N. 
 T.) 371, and Wood v. Wood, 83 N. Y. 575. Whether a separate estate is an 
 equitable separate 'estate or a statutory separate estate must be determined 
 from the language and provisions of the instrument creating it. If the in- 
 strument grants powers or imposes restrictions not granted or imposed by 
 the statute, but which are yet consistent with the rules and principles of 
 equity, the estate will be construed to be an equitable, and not a statutory, 
 separate estate. Jones v. Jones' Ex'r, 96 Va. 749, 32 S. E. 463. See, also, 
 Short v. Battle, 52 Ala. 456, holding that if the intent is ambiguous, as when 
 there is a mere conveyance, the statute steps in and makes the estate a stat- 
 utory separate estate. 
 
196 wife's equitable and statdtoey separate estate (Ch. 5 
 
 such constitutional provisions.^' Under such a provision, or one 
 having a similar prohibitory effect, the Legislature cannot take 
 away or impair rights which have already vested in the husband by 
 virtue of the marriage. If a husband has already acquired by virtue 
 of the marriage and the existing law a vested right in property 
 owned by his wife either at the time of the marriage or afterwards, 
 whether it be real or personal, such right cannot constitutionally 
 be taken from hirn by legislative enactment.*" But there is noth- 
 ing in such constitutional prohibitions to prevent the Legislature 
 from defeating mere expectancies where no rights have vested in 
 him. There is nothing unconstitutional in a statute giving married 
 women the sole right to property that may afterwards be acquired 
 by them, whether real or personal, or to the future income or profits 
 of land owned by them at the time the statute is enacted. Such a 
 statute neither defeats nor impairs any vested right either of the 
 husband or of his creditors.*" 
 
 38 Society for the Propagation of the Gospel v. Wheeler, 2 Gall. 105, Fed. 
 Oas. No. 13,156; Leete v. State Bank of St. Louis, 115 Mo. 184, 21 S. W. 
 788. 
 
 39 Cranston v. Cranston, 24 R. I. 297, 53 Atl. 44 ; Vanata v. Johnson, 170 
 Mo. 269, 70 S. W. 687 ; Mayo v. Bank of Gleason, 140 Tenn. 423, 205 S. W. 
 125; Bennett v. Hntchens, 133 Tenn. 65, 179 S. W. 629; Tucker v. Tucker's 
 Adm'r, 165 Ky. 306, 176 S. W;. 1173; Farrell v. Patterson, 43 111. 52; Du- 
 bois V. Jackson, 49 III. 49 ; Almond v. Bonnell, 76 111. 537 ; McNeer v. Mc- 
 Neer, 142 111. 388, 32 N. E. 681, 19 L. R. A. 256 ; Arnold v. Limeburger, 122 
 Ga. 72, 49 S. E. 812; Hetzel v. Idncoln, 216 Pa. 60, 64 Atl. 866; Coombs v. 
 Bead, 16 Gray (Mass.) 271 ; Dunn v. Sargent, 101 Mass. 336 ; Carter v. Car- 
 ter, 14 Smedes & ML (Miss.) 59; Eldridge v. Preble, 34 Me. 148; Erwin v. 
 Puryear, 50 Ark. 356, 7 S. W. 449; wythe v. Smith, 4 Sawy. 17, Fed. Cas. 
 No. 18,122. And see Appeal of Freeman, 68 Conn. 533, 37 Atl. 420, 37 L. R. 
 A. 452, 57 Am. St. Rep. 112. 
 
 *» See Baker's Bx'rs v. Kilgore, 145 U. S. 487, 12 Sup. Ct. 943, 36 TJ. Ed. 
 786 ; Allen v. Hanks, 136 TJ. S. 300, 10 Slip. Ct. 961, 34 D. Ed. 414; Holliday 
 V. McMillan, 79 N. C. 315, 318; Rutledge v. Rutledge, 177 Mo. App. 469, 119 
 S. W. 489 ; Rezabek v. Rezabek, 196 Mo. App. 673, 192 S. W. 107 ; Quigley 
 V. Graham, 18 Ohio St. 42; McNeer v. McNeer, 142 111. 388, 32 N. E. 681, 19 
 L. R, A. 256; Buchanan v. Lee, 69 Ind. 117; Sperry v. Haslam, 57 Ga. 412; 
 Niles V. Hall, 64 Vt. 453, 25 Atl. 479. It has been held that a husband's in- 
 terest as tenant by the curtesy initiate, at common law, in land owned by 
 his wife, is not a vested right, and may be interrupted by legislation before 
 it becomes consummate by the death of the wife. Alexander v. Alexander, 85 
 Va. 353, 7 S. W. 335, 1 L. R. A. 125. See HUl v. Chambers, 30 Mich. 422. But 
 the better opinion is to the contrary. See McNeer v. McNeer, 142 111. 388, 
 32 N. E. 681, 19 L. B. A. 256; Jackson v^ Jackson, 144 111. 274, 33 N. E. 51, 36 
 Am. St. Rep. 427; Rose v. Sanderson,' 38 111. 247. See, as to the eftect of the 
 separate property acts on the husband's interest in his wife's lands. Prall v. 
 Smith, 31 N. J. Law, 244 ; Dayton v. Dusenbury, 25 N. J. Eq. 110 ; Eldridge 
 
§ 78) STATUTOBY SEPARATE ESTATE 197 
 
 Statutes taking from the husband rights which are given him at 
 common law in his wife's property will not be construed as having 
 a retroactive effect, even where retroactive laws are not prohibited 
 by the Constitution of the particular state, unless th* intention of 
 the Legislature that they shall have such effect is clearly expressed, 
 and the language employed admits of no other construction. That 
 intention is not to be assumed by the mere fact that the language of 
 the statute is general, and might include past as well as future 
 transactions.*^ 
 
 Constitutional prohibitions against laws impairing the obligation 
 of contracts prevent the Legislatures from passing laws impairing 
 the obligation of contracts made by a husband concerning property 
 of his wife, which he had a right to make by virtue of the marriage 
 and under existing laws ; but marriage is not a contract within the 
 
 V. Preble, 34 Me. 148; Burson's Appeal, 22 Pa. 164; Bouknight v. Epting, 
 11 S. C. 71. The Legislature, however, may clearly defeat, by a statute, any 
 right to curtesy which he would otherwise have in land which may be ac- 
 quired by the wife after the adoption of the statute. Baker's Ex'rs v. Kil- 
 gore, supra ; Allen v. Hanks, supra. And it may defeat a husband's expect- 
 ancy of a tenancy by the curtesy ; that is, It may abolish curtesy, or modify 
 the existing law, before the husband's interest becomes initiate. Oooley, 
 Const. Lam. 440; Wyatt v. Smith, 25 W. Va. 813; McNeer v. McNeer, 142 
 111. 388, 32 N. E. 681, 19 L. B. A. 256. See Hill v. Chambers, 30 Mich. 422. 
 It cannot defeat a vested estate by the entirety. Almond v. Bonnell, 76 111. 
 536. It has also been held by some courts that a husband's right to reduce 
 his wife's choses In action to possession is not a vested right, even as to ex- 
 isting choses in action not reduced, and that it may be interrupted by leg- 
 islation. Alexander v. Alexander, 85 Va. 353, 7 S. E. 335, 1 L. R. A. 125; 
 Clarke v. McCreary, 12 Smedes & M. (Miss.) 347; Percy v. Oockrill, 53 Fed. 
 872, 881, 4 O. C. A. 73; Goodyear v. Rumbaugh, 13 Pa. 480; Mellinger's 
 Adm'r v. Bausman's Trustee, 45 Pa. 522, 529; Dilley v. Henry's Ex'r, 25 N. 
 J. Law, 302. But the better opinion is to the contrary. Dunn v. Sargent, 
 101 Mass. 336; Westervelt v. Gregg, 12 N. T. 202, 62 Am. Dec. 160; NorrTs 
 V. Beyea, 13 N. X. 273, 288; Ryder v. Hulse, 24 N. Y. 372; Leete v. Sitate 
 Bank, 115 Mo. 184, 21 S. W. 788; Sterns v. Weathers, 30 Ala. 712; Kidd v. 
 Montague, 19 Ala. 619; Anderson v. Anderson, 1 Ala. Sel. Cas. 612. Acts 
 34th Leg. e. 54, § 1 (Vernon's Sayles' Ann. Civ. St. Supp. 1918, art. 4621a), 
 providing that all property or moneys received as compensation for personal 
 injuries sustained by wife shall be her separate property, does not afCect 
 actions filed prior to passage thereof. Houston Belt & Terminal Ry. Co. v. 
 Scheppelman (Tex. Civ. App.) 203 S. W. 167. 
 
 41 See Stilphen v. Stilphen, 65 N. H. 126, 23 Atl. 79 ; Leete v. State Bank 
 of St. Louis, 115 Mo. 184, 21 S. W. 788, and authorities there cited. See, 
 also, the cases cited in note 40, supra. 
 
198 wife's equitable and statutory separate estate (Ch. 5 
 
 meaning of such provisions, and they cannot be set up to defeat 
 legislation taking from a husband rights in his wife's property.*^ 
 What Law Governs 
 
 If' the husband, by virtue of his marital right under the common 
 law, becomes vested with title to his wife's personalty, the subse- 
 quent removal of the parties to a state in which the law declares 
 that property owned or acquired by a married woman is her sepa- 
 rate property will not divest him of his title.*^ Conversely, if a 
 married woman acquires a separate property in personalty under 
 the statute of the state of residence, the subsequent removal of. the 
 parties to a state where the common law prevails will not divest her 
 of her title and vest it in the husband by virtue of his marital 
 rights.** 
 
 What Constitutes Wife's Separate Property 
 
 As was stated above, the statutes generally provide that the 
 property owned by a woman at the time of her marriage, or there- 
 after acquired by her in any legal manner is her separate proper- 
 ty.*° Under these statutes it has been held that a married woman 
 has a separate estate in property acquired by gift,** purchased on 
 
 *i MAYNARD v. HILL, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654, Cooley 
 Cas. Persons and Domestic Relations, 1; ante, p. 3, and cases there citert. 
 
 * 3 Ellington v. Harris, 127 Ga. 85, 56 S. E. 134, 119 Am. St. Rep. 320; 
 Meyer v. KcCabe, 73 Mo. 236; Birmingham Waterworks Co. v. Hume, 121 
 Ala. 168, 25 South. 806, 77 Am. St. Rep. 43. 
 
 44 Rice V. Shipley, 159 Mo. 399, 60 S. "W. 740. 
 
 4B See ante, p. 193. 
 
 4 6 Salisbury v. Spofford, 22 Idaho, 393, 126 Pac. 400; Chom v. Chorn's 
 Adm'r, 98 Ky. 627, 33 S. W. 1107 ; Hess t. Brown, 111 Pa. 124, 2 Atl. 416 ; 
 Cropper v. Bowles, 150 Ky. 393, 150 S. W. 380 ; Kinkaid v. Lee, 54 Tex. Civ. 
 App. 622, 119 S. W. 342 ; O'Brien v. McSherry, 222 Mass. 147, 109 N. E. 904. 
 Where a wife conveyed property received as a gift to a holding corporation 
 formed by members of the family, the stock received in exchange therefor 
 was acquired by gift and was her separate property. Smith v. Weed, 75 
 Wash. 452, 134 Pac. 1070. A husband, who executed a note to his wife for 
 money received by her as heir of her mother, thereby made the note the wife's 
 separate property, and thereby deprived himself of any right to, or interest 
 In, either the money or the note, though it did not in terms recite that it was 
 for the wife's separate use. Bennett v. Bennett's Adm'r, 134 Ky. 444, 120 S. 
 W. 372. In view of Rem. Code 1915, §g 5919, 5925, 8766, 8771, where a hus- 
 band procures a deed In wife's name, and so conducts himself with reference 
 thereto, as to evidence no claim or interest therein, the property will consti- 
 tute separate estate of wife. Lanigan v. Miles, 102 Wash. 82, 172 Pac. 894. 
 Prior to the enactment of the Married Woman's Act (Acts 1866, p. 146), 
 property given a wife during coverture vested in her husband, unless the 
 gift used words indicating a wish for personal enjoyment by the wife. Ends- 
 ley V. Taylor, 143 Ga. 607, 85 S. E. 852. 
 
§ 78) STATUTORY SEPARATE ESTATE 199 
 
 her own credit,*^ or with her own money,*' or earnings,*" and it 
 does not affect her rights that her husband acted as her agent,^" or 
 took title in his own name,"^ or even that he paid a portion of the 
 purchase money, if the intent was that the property should be her 
 separate property."^ Nor does the fact that the husband rendered 
 
 iTMerrell v. Purdy, 129 Wis. 331, 109 N. W. 82; Kriz v. Peege, 119 Wis. 
 105, 95 N. W. 108 ; Citizens' Loan & Trust Co. v. Witte, 116 Wis: 60, 92 N. 
 W. 443; Hibernian Sav. Inst. v. L-ulin, 34 S. O. 175, 13 S. B. 357; United 
 States Fidelity & Guaranty Co. 'v. Lee, 58 Wasli. 16, 107 Pac. 870; Wilder v. 
 Richie, 117 Mass. 382; SIDWAY v. NIGHOL, 62 Ark. 146, 34 S. W. 529, 
 Cooley Cas. Persons and Domestic Relations, 98 ; Reeves v. McNeill, 127 Ala. 
 175, 28 South. 623 ; Conkling v. Levie, 66 Neb. 132, 94 N. W. 988 (second case) ; 
 Hibbard v. Heckart, 88 Mo. App. 544. And it does not affect her rights that 
 she had no prior separate estate to form a basis of credit. Trapnell v. 
 Oonklyn, 37 W. Va. 242, 16 S. E. 570, 38 Am. St. Rep. 30 ; Messer v. Smyth, 
 58 N. H. 298; Kriz v. Peege, 119 Wis. 105, 95 N. W. 108. Property pur- 
 chased by married woman on her individual credit, -without applying on the 
 price property or proceeds of property derived from her husband, is not 
 liable for his debts. Hoover v. Carver, 135 Minn. 105, 160 N. W. 249. Credi- 
 tors of a husband cannot reach property, which was purchased by the wife 
 with money borrowed on her personal credit, and which was repaid out of 
 her separate estate. Morris v. Waring, 22 N. M. 175, 159 Pac. 1002. 
 
 *8 Gebhart v. Gebhart (Tex. Civ. App.) 61 S. W. 964 ; Oaks v. West (Tex. 
 Civ. App.) 64 S. W. 1033 ; Fox v. Tyrone, 104 Miss. 44, 61 South. 5 ; Clark v. 
 Baker, 76 Wash. 110, 135 Pac. 1025; Marshall Field & Co. v. McFarlane 
 (Iowa) 84 N. W. 1030. A wife acquired land as her separate estate if the 
 consideration used in paying for the property was her separate estate. 
 Johnson v. Johnson (Tex. Civ. App.) 207 S. W. 202. Where property was 
 paid for by husband's checks, it is nevertheless the wife's property, if thje 
 actual purchase money was funds of the wife previously given to him. Con- 
 ron v. Oauchois, 242 Fed. 909, 155 O. C. A. 497. 
 
 49 Green v. Forney, 134 Iowa, 316, 111 N. W, 976; Rath v. Ranking, 33 
 S. W. 832, 17 Ky. Law Rep. 1120; Dobbins v. Dexter Horton & Co., 62 Wash. 
 423, 113 Pac. 1088 ; Larson v. Larson, 15 Oal. App. 531, 115 Pac. 340 ; Kin- 
 sey V. Feller, 64 N. J. Eq. 367, 51 Atl. 485. 
 
 ooKeeves v. McNeill, 127 Ala. 175, 28 South. 623. 
 
 51 Oaks V. West (Tex. Civ. App.) 64 S. W. 1038; Ligon v. Wharton (Tex. 
 Civ. App.) 120 S. W. 930. See, also, 'Adoue v. Spencer, 62 N. Jt. Eq. 782, 49 
 Atl. 10, 56 L. R. A. 817, 90 Am. St. Rep. 484, holding that the fact that the 
 husband has taken possession of the wife's separate estate does not raise a 
 presumption of a gift to him, and that he must account. Shares of stock 
 purchased by husband with funds in his Hands belonging to his wife remain 
 wife's sole property, although shares were taken in the name of both hus- 
 band and wife. Gooch v. Weldon Bank & Trust Co., 176 N. C. 213, 97 S. E. ' 
 53. A husband, acquiring legal title to his wife's separate realty, is deemed 
 to hold it in trust for her, without direct evidence that she intended a gift 
 of it to him. Farmers' State Bank of Ada v. Keen (Okl.) 167 Pac. 207. 
 
 52 Gebhart v. Gebhart (Tex. Civ. App.) 61 S. W. 964 ; Corbett v. Sloan, 52 
 Wash. 1, 99 Pac. 1025; Patterson v. Patterson, 197 Mass. 112, 83 N. E. 364. 
 See, also, Dyer v. Pierce (Tex. Civ. App.) 60 S. W. 441. Where a married 
 
200 wife's equitable and statutory separate estate (Ch. 5 
 
 services in connection with the property render it less her separate 
 property or give his creditors any claim thereon."^ So, too, the 
 increase of or income from her separate estate is her separate 
 property.^* 
 
 In many states her earnings in activities not connected with her 
 household duties,"' and in some damages for torts committed 
 against her,"° are her separate property. 
 
 woman's money is invested in land in her husband's name, she owns, in her 
 separate right, a part of the land proportionate to the amount of her funds 
 Invested therein. Kingman-Texas Implement Co. v. Herring Nat Bank (Tex. 
 Civ. App.) 153 S. W. 3&4. 
 
 5 3 Donovan v. Olson, 47 Wash. 441, 92 Pac. 276; Green v. Forney, 134 
 Iowa, 316, 111 N. W. 976; Smith's Ex'r v. Johns, 154 Ky. 274, 157 S. W. 
 21; lUnk v. McCue, 123 Mo. App. 313, 100 S. W. 549; Hibbard, Spencer, 
 Barlett & Co. v. Heckart, 88 Mo. App. 544 ; Trapnell v. Conklyn, 37,W. Va. 242, 
 16 S. E. 570, 38 Am. St. Rep. 30. See, also, Carson v. Carson, 204 Pa. 466, 54 
 Atl. 348. Improvements placed on the wife's separate real estate by the hus- 
 band are her property. Shaw v. Bernal, 163 Cal. 262, 124 Pac. 1012 ; Hood 
 V. Hood, 83 N. J. Bq. 695, 93 Atl. 797; Kearney v. Vann, 154 N. O. 311, 70 
 S. B. 747, Ann. Cas. 1912A, 1189; Holman v. Holman (Mo.) 183 S. W. 623. 
 
 04 Thorn v. Anderson, 7 Idaho, 421, 63 Pac. 592; Henderson Grocery Co. 
 V. Johnson, 141 Tenn. 127, 207 S. W. 723 ; Maxwell v. Jurney, 238 Fed. 566, 
 151 C. C. A. 502; Carle v. HeUer, 18 Cal. App. 577, 123 Pac. 815; Carson v. 
 Carson, 204 Pa. 466, 54 Atl. 348. Profits of wife's business, though derived 
 through activities of husband, belong to her. Bourgeois v. Edwards (N. J. 
 Ch.) 104 Atl. 447. Increase in the value of the wife's property by reason of 
 the good management of the husband cannot be reached by his creditors. 
 Martin v. Banks, 89 Ark. 77, 115 S. W. 928; Green v. Forney, 134 Iowa, 
 316, 111 N. W. 976; Wasem v. Kaben, 45 Ind. App. 221, 90 N. E. 686. But 
 see Patton's Ex'r v. Smith, 130 Ky. 819, 114 S. W. 315, 23 L. R. A. (N. S.) 
 1124. 
 
 6 6 NTJPING V. URICH, 169 Pa. 289, 32 Atl. 409, Cooley Cas. Persons and 
 Domestic Relations, 61; Turner v. Davenport, 63 N. J. Bq. 288, 49 Atl. 
 468; Larkin v. Woosley, 109 Ala. 258, 19 South. 520; Vincent v. Ireland, 
 2 Pennewill (Del.) 580, 49 Atl. 172; Healey v. P. Ballantine & Sons, 66 
 N. J. Law, 339, 49 Atl. 511; Furth v. March, 101 Mo. App. 329, 74 S. W. 
 147 ; Roberts v. Haines, 112 Ga. 842, 38 S. B. 109 ; Hamilton v. Hamilton's 
 Estate, 26 Ind. App. 114, 59 N. E. 344; Moore v. CrandaU, 205 Fed. 689, 
 124 C. O. A. 11; Briggs v. Sanford, 219 Mass. 572, 107 N. E. 486; Dr. S. 
 S. Still College & Infirmary of Osteopathy v. Morris, 93 Neb. 328, 140 N. W. 
 272 ; Booth v. Backus, 182 Iowa, 1819, 166 N. W. 695 ; Foy v. Pacific Pow- 
 er & Light Co., 105 Wash. 5E5, 178 Pac. 452 ; Perry v. Blumenthal, 119 App. 
 
 B8 BLABCHINSKA v. HOWARD MISSION & HOME FOR LITTLE WAN- 
 DERERS, 130 N. Y. 497, 29 N. E. 755, 15 L. R. A. 215, Cooley Cas. Persons and 
 Domestic Relations, 57 ; Healey v. P. Ballantine & Sons, 66 N. J. Law, 339, 49 
 Atl. 511. See, also, Harmon v. Old Colony R. Co., 165 Mass. 100, 42 N. E. 505, 
 30 L. R. A. 658, 52 Am. St. Rep. 499 ; Harris v. Webster, 58 N. H. 481 ; Hey v. 
 Prime, 197 Mass. 474, 84 N. E. 141, 17 L. R. A. (N. S.) 570; Western Union 
 Tel. Co. V. Rowe, 44 Tex. Civ. App. 84, 98 S. W, 228, 
 
§ 78) STATUTORY SEPARATE ESTATE 201 
 
 When property is conveyed to husband and wife jointly, they 
 take, as we have seen, as tenants by the entirety ; that is, neither 
 of them takes an undivided share separately from the other, but 
 each has an interest in the whole, and on the death of either the 
 property belongs to the other. Neither can defeat the rights of tlie 
 other as survivor."^ It has been held, therefore, that the wife has 
 not such an interest in such property that it can be called her sep- 
 , arate property within the meaning of the separate property acts.°' ■ 
 
 Management and Control of Wife's Separate Property 
 
 Though in some states the statute provides that the management 
 and control of the wife's separate property shall be vested in the 
 husband,^" in the absence of such a provision it is generally Iield 
 
 Dlv. 663, 104 N. Y. Supp. 127. Since the act of 1869 (I/aws 1869, p. 255) the 
 earnings of a wife realized from keeping boarders with the consent of lier 
 husband will be considered her own personal property, and, as a general rule, 
 protected from subsequent creditors of her husband. Arthur Lehman & Co. 
 V. Slat, 208 111. App. 39. But see In re Shaw's Estate, 201 Mich. 574, 167 
 N. W. 885, holding that, where wife living with husband furnishes board 
 and room to an outsider, the wife has no personal right to recover there- 
 for in absence of assignment by husband. Oomp. Laws N. M. 1884, § 1087 
 (Comp. Laws 1897, § 1509) , simply exempts earnings of wife from liability for 
 debts of husband, and does not make them her separate property. Albright 
 V. Albright, 21 N. M. 606, 157 Pac. 662, Ann. Cas. 1918E, 5)42. 
 
 6 7 Ante, p. 146, "Estate by Entirety." 
 
 58 Speier v. Opfer, 73 Mich. 35, 40 N. "W. 909, 2 L. E. A. 345, 16 Am. St. 
 Hep. 556 ; Curtis v. Crowe, 74 Mich. 99, 41 N. W. 876. But see Dreutzer v. 
 Lawrence, 58 Wis. 594, 17 N. W: 423, and FROST v. FROST, 200 Mo. 474, 98 
 S. W. 527, 118 Am. St. Rep. 689, Cooley Cas. Persons and Domestic Rela- 
 tions, 74. 
 
 ssSayles' Ann. Civ. St. Tex. 1897, art. 2967; Gen. St. Fla. 1906, § 2589; 
 Rev. St. Idaho, 1887, § 2498. But see Act March 9, 1903 (Sess. Laws 
 1903, p. 345). And see McNeil v. Williams, 64 Pla. 97, 59 South. 
 562; Bates v. Capital State Bank, 21 Idaho, 141, 121 Pac. 561; Bled- 
 soe V. Fitts, 47 Tex. Civ. App. 578, 105 S. W. 1142, certified questions an- 
 swered Atteberry v. Burnett, 102 Tex. 118, 113 S. W. 526. But he cannot 
 sell it. Bledsoe v. Fitts, supra ; Ligon v. Wliarton (Tex. Civ. App.) 120 S. W. 
 930; Scruggs v. Gage (Tex. Civ. App.) 182 S. W. 696. Nor mortgage it. 
 Shomaker v. Waters, 59 Fla. 414, 52 South. 586 ; Walker v. Farmers' & Mer- 
 chants' State Bank of Winters (Tex. Civ. App.) 146 S. W. 312. Under Rev. 
 St. 1887, § 2499, if a wife has just cause to apprehend that her husband has 
 mismanaged or will mismanage her separate property, she or some person 
 in her behalf may apply for the appointment of a trustee to manage the 
 same. Sencerbox v. First Nat. Bank, 14 Idaho, 95, 93 Pac. 369. "-Under 
 Const. 1885, art. 11, § 1, declaring that all property of a wife owned be- 
 fore marriage or acquired by gift, devise, bequest, descent, or purchase shall 
 be' her property, she may, at her pleasure, terminate the control over her 
 property conferred by Gen. St. 1906, § 2589, upon the husband. Florida Citrus 
 Exchange v. Grisham, 65 Fla. 46, 61 South. 123. 
 
202 wife's equitable and statutory separate estate (Ch. 5 
 
 that she can use, manage, and control her property as if she were 
 unmarried,"" subject, however, to certain restrictions on her power 
 to mortgage or convey her property " and to charge the same for 
 debts.»2 
 
 POWER TO DISPOSE OF STATUTORY SEPARATE ES- 
 TATE 
 
 79. A married woman has no power to dispose of her statutory 
 separate estate unless the power is expressly or inipliedly 
 given her by the statute. Though some courts held other- 
 wise in the case of personal property, the rule is that a 
 statute merely giving the right to hold and enjoy, or the 
 jus tenendi, does not include the jus disponendi. 
 
 A statute which mei-ely, gives a married woman the right to hold, 
 own, possess, and enjoy as her separate^ property real and personal 
 property owned before or acquired after marriage, or which gives 
 her the right to hold such property to her sole and separate use, as if 
 she were a single female, does not confer on her the power to dis- 
 pose of real estate."' The jus disponendi will not be implied from 
 a bare jus tenendi."* Under a statute providing that a married 
 
 «o Parent v. Cailerand, 64 111. 97; Southard v. Plummer, 36 Me. 64; Ago 
 V. Canner, 167 Mass. 390. 45 N. E. 754; Pomeroy v. Manhattan Life Ins. Co., 
 40 111. 398; Barton v. Barton, 32 Md. 214; Teckenbrocfe v. McLaughlin, 
 246 Mo. 711, 152 S. W. 38; Nelson v. Nelson, 176 N. C. 191, 96 S. E. 986. 
 Where a husband's possession of his wife's land accrued prior to the amend- 
 ment of 1889 (Rev. St. 1889, § 6869) to the married woman's act, which de- 
 prived a husband of his former right to possession, such amendment did not 
 change the husband's right. Powell v. Powell, 267 Mo. 117, 183 S. W. 625, 
 judgment reversed on motion to modify 267 Mo. 117, 188 S. W. 795. A 
 wife may sue her husband to recover or protect her separate estate. In re 
 Hoffman (D. C.) 199 Fed. 448; Masterman v. Masterman, 129 Md. 167, 98 
 Atl. 537; Ireland v. Ireland, 244 Pa. 489, 90 Atl. 911; Carpenter v. Car- 
 penter, 154 Mich. 100, 117 N. W. 598; De Baun's Ex'r v. De Baun, 119 Va. 
 85, 89 S. B. 289. 
 
 61 See post, p. 209. 
 
 82 See post, p. 208. 
 
 8 3 Cole V. Van Kiper, 44 111. 58; Bressler v. Kent, 61 111. 426, 14 Am. Eep. 
 67; Naylor v. Field, 29 N. J. Law, 287. In Louisiana, before the passage 
 of the recent statute (Act No. 94, of 1916) a married woman had no capacity 
 to alienate or incumber her separate property without the authorization of 
 her husband or of a competent court. Douglas v. Nicholson, 140 La. 1098, 
 74 South. 566. 
 
 84 Miller v. Wetherby, 12 Iowa, 415; Cole v. Van Riper, 44 111. 58; Bress- 
 ler V. Kent, 61 lU. 426, 14 Am. Kep. 67 ; Naylor v. Meld, 29 N. J. Law, 287. 
 
|§ 80-82 POWER TO QHARQE STATUTORY ESTATE BY CONTRACT 203 
 
 woman shall have the same rights over her separate property as 
 if unmarried, it has, however, been held that she has the right to 
 dispose of it.°° 
 
 In respect to personalty, it has been held in many states that the 
 jus disponendi is a necessary incident to the separate ownership of 
 personal property."* Some courts have nevertheles's refused to 
 recognize the distinction."' In most of the states, however, the 
 power of married women to dispose of their separate property has 
 been definitely granted or denied in the statutes creating a separate 
 estate."' 
 
 POWER TO CHARGE STATUTORY SEPARATE ESTATE 
 
 BY CONTRACT 
 
 80. In the absence of express enactment, statutes giving married 
 women separate property do not impliedly authorize a 
 married woman to contract generally; but she can con- 
 tract so as to render her statutory separate property liable. 
 
 (a) Where the contract would bind her equitable separate prop- 
 
 erty. 
 
 (b) Where the statute expressly authorizes her to contract with 
 
 reference to her separate property. 
 
 (c) Where the statute enacts that she may enjoy her separate 
 
 property as if sole. 
 
 8' Real v. Warren, 2 Gray (Mass.) 447; HARRIS v. SPENCER, 71 Conn. 
 233, 41 Atl. 773, Cooley Cas. Persons and Domestic Relations, 102; Wagner 
 V. Mutual Life Ins. Co. of New York, 88 Conn. 536, 91 AtT. 1012 ; Stewart v. 
 Weiser Lumber Co., 21 Idaho, 340, 121 Pae. 775; Cropper v. Bowles, 150 
 Ky. 393, 150 S. W. 380 ; Marsh v. Marsh, 92 Neb. 189, 137 N. W. 1122 ; Beln- 
 brink v. Fox, 121 Md.n02, 88 Atl. 106. In some states the husband must 
 join in the deed. Council v. Pridgen, 153 N. C. 443, 69 S. E. 404; Phillips 
 V. Hoskins, 128 Ky. 371, 108 S. W. 283 ; Schickhaus v. Sanford, 83 N. J. Eg. 
 454, 91 Atl. 878; Blondin v. Brooks, 83 Vt. 472, 76 Atl. 184. 
 
 eeNaylor v. Meld, 29 N. J. Law, 287; Harding v. Cobb, 47 Miss. 569; 
 Beard v. Dedolph, 29 Wis. 136. See, also. Townsend v. Huntzinger, 41 Ind. 
 App, 223, 83 N. E. 619. There is no restriction upon the right of the wife 
 to dispose of her personalty as fully and freely as If she had remained uh- 
 married. Deese v. Deese, 176 N. O. 527, 97 S. B. 475. 
 
 « 7 Swift v. Luce, 27 Me. 285; Brown v. Fifleld, 4 Mich. 322; Scott v. 
 Scott, 13 Ind. 225; Moore v. Cornell, 68 Pa. 320. 
 
 .«8 See the statutes of the various states. In Indiana It Is held that 
 a statute restricting the right of a married woman to convey her realty does 
 not affect her right to convey personalty. Townsend v. Huntzinger, 41 Ind. 
 Api). 223, 83 N. B. 619. A married woman has the same status as her 
 
204 wife's equitable and statutokx separate estate (Ch. 5 
 
 81. Statutes authorizing married women to acquire and hold prop- 
 
 erty authorize the performance of all acts and the making 
 of all contracts that are necessarily incident thereto, but 
 do not abrogate the common law further than is necessary 
 to give them full effect. 
 
 82. Equitable jurisdiction over equitable separate property has been 
 
 extended in some states to statutory separate property, but 
 not in all states. Contracts concerning such property are 
 therefore enforceable. 
 
 (a) ■ In some states, in equity only. 
 
 (b) In other states, at law only. 
 
 (c) In other states, either at law or in equity. 
 
 Whatever power a married woman has to contract is given her 
 by the statutes, and difficult questions sometimes arise in deter- 
 mining the extent to which the statutes giving the wife the right 
 to hold and enjoy her separate property free from the control 
 of her husband have removed the common-law disability of mar- 
 ried women to contract, and there is considerable conflict in the 
 cases on some points. It is clear that, while such statutes give a 
 married woman certain rights in regard to her statutory separate 
 property which she did not have at common law, they fall far 
 short of placing her in the position of a feme sole. They are held to 
 abridge the rights of the husband, and remove the disabilities of 
 the wife, only so far as they expressly do so, and are held not to 
 impliedly abrogate the common law beyond their terms.** Such 
 statutes, therefore, in the absence of any enactment allowing mar- 
 ried women to contract as if sole, do not enable her to make con- 
 tracts not connected with her separate property.'"' Of course, 
 
 husband as to the right to convey property. Farmers' State Bank of Ada 
 V. Keen (Okl.) 167 Pac. 207. 
 
 60 Speler v. Opfer, 73 Mich. 35, 40 N. W. 909, 2 L. R. A. 345, 16 Am. St. 
 Eep. 556 ; Eussel v. People's Sav. Bank, 39 Mich. 671, 33 Am. Rep. 444 ; and 
 cases hereafter cited. Thus in Michigan, as in some other states, the statute 
 has not given her the power to contract, except in regard to her separate 
 property. It has therefore been held that as real property held by husband 
 and wife jointly is held by them as tenants by the entirety, and cannot 
 be regarded as the wife's separate property, she is not liable on a contract 
 made jointly with her husband for improvements on such property. Speier 
 V. Opfer, 73 Mich. 35, 40 N. W. 909, 2 L. R. A. 345, 16 Am. St. Rep. 556; 
 Curtis V. Crowe, 74 Mich. 99, 41 N. W. 876. But see Dreutzer v. liawrence, 
 58 Wis. 594, 17 N. W. 423. 
 
 'oRussel V. People's Sav. Bank, 39 Mich. 671, 33 Am. Rep. 444; Speier v. 
 
§§ 80-82) ^OWEE TO CHARGE STATUTORY ESTATE BT CONTRACT 205 
 
 when ithe statute completely removes the disabilities of coverture 
 and gives her power to contract as if sole, a married woman may 
 charge her separate estate by contract as freely as an unmarried 
 woman.' ^ 
 
 By the statutes of some states the wife is expressly given the 
 power to make contracts "relating to," or "with reference to," or 
 "in respect to," etc., her separate estate.'^ These expressions are 
 generally held to include whatever is necessary to the full enjoy- 
 ment and -use of the property;" but a possible incidental benefit, 
 
 Opfer, 73 Mich. 35, 40 N. W. 909, 2 L. R. A. 345, 16 Am. St. Rep. 556 ; Canal| 
 Bank v. Partee, 99 U. S. 325, 25 L. Ed. 390; Bank of Commerce v. Baldwin, 
 12 Idaho, 202, 85 Pac. 497 ; Id., 14 Idaho, 75, 93 Pac. 504, 17 L. R. A. (N. S.) 
 676; State v. Robinson, 143 N. C. 620, 56 S. E. 918; Gary v. Dixon, 51 
 Miss 593; Jenne v. Marble, 37 Mich. 319; Hodges v. Price, 18 Fla. 342; 
 O'Dally V. Morris, 31 Ind. ill; McKee v. Reynolds, 26 Iowa, 578; Pond 
 V. Carpenter, 12 Minn. 430 (Gil. 815) ; Riteh v. Hyatt, 3 MacArthur (D. C.) 
 536. See, also, Thompson v. Minnich, 227 111. 430, 81 N. E. 336. 
 
 '1 Such statutes have been enacted in many states. See Orum v. Sawyer, 
 132 lU. 443, 24 N. B. 956; Young v. McFadden, 125 Ind. 254, 25 N. E. 284 
 (except contracts of suretyship); McCorkle v. Goldsmith, 60 Mo. App. 475 
 {except contracts with husband) ; Colonial, etc., Mortgage Co. v. Bradley, 
 4 S. D. 158, 55 N. W. 1108; Bogie v. Nelson, 151 Ky. 443, 152 S. W. 250; 
 liyeU. V. Walbach, 113 Md. 574, 77 Atl. 1111, 33 L. R. A. (N. S.) 741; Ooopieie 
 V. Burel, 129 Ark. 261, 195 S. W. 356; McFarland v. Johnson, 22 Idaho, 
 694, 127 Pac. 911. And -see Peter Adams Paper Co. v. Cassard, 206 Pa., 
 179, 55 Atl. 949. 
 
 '2 See the statutes of the various states. 
 
 's Marlow v. Barlew, 53 Cal. 456 ; Merrell v. Purdy, 129 Wis. 331, 109 N. 
 W. 82; T. G. Northwall Co. v. Osgood, 80 Neb. 764, 115 N. W. 308; Blair 
 V. Teel (Tex. Civ. App.) 152 S. W. 878 ; Ball & Sheppard v. Paquin, 140 N. 
 €. 83, 52 S. E. 410, 3 !>. R. A. (N. S.) 307 ; Sample v. Guyer, 143 Ala. 613, 
 42 South. 106; Gilbert v. Brown, 123 Ky. 703, 97 S. W. 40, 7 L. R. A. (N. 
 S.) 1053; Culberhouse v. Hawthorne, 107 Ark. 462, 156 S. W. 421; Bailey 
 V. Fink, 129 Wis. 373, 109 N. W. 86; Micou v. McDonald, 55 Fla. 776, 46 
 South. 291; Parker v. Kane, 4 Allen (Mass.) 346; Basford v. Pearson, 7 
 Allen (Mass.) 504; Burr v. Swan, 118 Mass. 588; Albin v. Lord, 39 N. H. 
 196, 202; Batchelder v. Sargent, 47 N. H. 262; McCormiek v. Holbrook, 22 
 Iowa, 487, 92 Am. Dec. 4(X). A married woman's agreement to devise is 
 one "concerning or relating" to her separate property within meaniqg of 
 the statute. Steinberger v. Young, 175 Cal. 81, 165 Pac. 432. A married 
 woman living in the home of her husband may bind her separate estate by 
 , a contract providing for the payment of a domestic, and, though she at 
 the time owned no separate estate, such contract, upon the married woman's 
 acc[ulring a separate estate, is upon principles of estoppel binding on such 
 estate. Bolthouse v. De Spelder, 181 Mich. 153, 147 N. W. 589. Where, 
 by a contract for the support of C, her married dHughters were protected 
 from liability under the statutes for furnishing her support in case she be- 
 <:ame unable to maintain herself, such contract operated to the benefit of 
 the daughters' separate estates. Payne v. Payne, 129 Wis. 450, 109 N. W. 
 
206 wife's equitable and statutory separate estate (Ch. 5 
 
 as when a woman indorses a note for the benefit of a corporation 
 in which she is a stockholder, is too remote.'^* "Such a contract," 
 said Judge Cooley, "is not within the words of the statute. Neither 
 is it within the spirit of the statute, for that had in view the reliev- 
 ing of the wife of disabilities which operated unfairly and oppres- 
 sively, and which hampered her in the control and disposition of 
 her property for the benefit of herself and her family. It was not its 
 purpose to give her a general power to render herself personally re- 
 sponsible upon engagements for any and every consideration which 
 would support a promise at the common law. * * * The test 
 of competency is to be found in this : that it does or does not deal 
 with the individual estate. Possible incidental benefits cannot sup- 
 port it." '° A contract to sell her separate estate is "in respect to" 
 her separate property; ^' and so, too,' is a mortgage thereon.'^' 
 Notes and other obligations, given for the price of property, on its 
 I 
 105. Under Code N. M. 1915, § 2750, permitting a married woman to enter 
 into any engagement respecting property wliich she might- if unmarried, a 
 note is an "engagement respecting property," which she may make, although 
 enforceable only against her separate property. First Sav. Bank & Trust 
 Co. V. Flournoy, 24 N. M. 256, 171 Pac. 793. 
 
 74 Russel V. People's Sav. Bank, 39 Mich. 671, 33 Am. Rep. 444. 
 
 75 Where a married woman executed a note for her brother's benefit, the 
 mere hope that by bettering her brother's financial condition by the pro- 
 ceeds of such note he might be able to repay other money due her, wais 
 not a "benefit" to her estate contemplated by the statute. First Nat. Bank 
 of Freehold v. Butter, 91 N. J. Law, 424, 104 Atl. 138, affirmed 92 N. J. Law, 
 621, 106 Atl. 371. 
 
 T 6 Dunn V. Stowers, 104 Va. 290, 51 S. E. 366; Basford v. Pearson, 7 Al- 
 len (Mass.) 504 ; Baker v. Hathaway, 5 Allen (Mass.) 103 ; Richmond v. Tib- 
 bies, 26 Iowa, 474. See, also, Dobbins v. Thomas, 26 App. D. C. 157, hold- 
 ing that a contract made by a married woman for the exchange of real 
 estate and for the purchase of personal property must, under Code, § 1156 
 (81 Stat. 1374, c. 854), be deemed to have been made with reference to her 
 separate estate ; there being no contrary intent expressed. Compare Isphord- 
 ing V. Wolfe, 36 Ind. App. 250, 75 N. B. 598, holding that a contract to pay 
 for services rendered by a broker on the sale of the land of a married 
 womjin was valid. 
 
 7 7 Marlow v. Barlew, 53 Oal. 456; Messer v. Smyth, 58 N. H. 298; Col- 
 lier V. Doe ex dem. Alexander, 142 Ala. 422, 38 South. 244; Mercantile Exch. 
 Bank v. Taylor, 51 Fla. 473, 41 South. 22. Power to borrow money, see 
 Feather v. Feather's Estate, 116 Mich. 384, 74 N. W. 524; June v. Labadie, 
 188 Mich. 52, 100 N. W. 996; Arnold v. McBride, 78 Ark. 275, 93 S W. 
 989 ; SIDWAT v. NICHOL, 62 Ark. 146, 34 S. W. 529, Cooley Cas. Persons and 
 Domestic Relations, 98 ; Scott v. Collier, 166 Ind. 644, 78 N. E. 184 ; Blair v. 
 Teel (Tex. Civ. App.) 152 S. W. 878; Rood v. Wright, 124 Ga. 849, 53 
 S. E. 390. 
 
§§ 80-82) POWER TO CHAEQE STATUTORY ESTATE BY CONTRACT 207 
 
 purchase by her, have been held to be contracts "in respect to" her 
 separate property/^ though there are cases holding the contrary/" 
 
 Many illustrations might be cited to show that the general rule is 
 that a married woman has no powers now which she did not have at 
 common law, except such as are given her by the statute and such 
 as ar6 necessarily implied as incidental thereto. "' Thus, where a 
 statute authorized a married woman "to contract, sell, transfer, 
 mortgage, convey, devise, and bequeath" her separate statutory 
 property "in the same manner and with like effect as if unmarried," 
 a transfer of a note owned by a married woman, by indorsement, as 
 collateral security for the debt of another, was held void, as the 
 statute did not empower her to enter into a contract of surety- 
 ship.*^ 
 
 It has been shown in the preceding section that, under a statute 
 providing that a married woman shall have the same rights over 
 
 TsMesser v. Smyth, 58 N. H. 298; Scott v. Collier, 166 Ind. 644, 78 N.- 
 E. 184 ; Nadel v. Weber Bros. Shoe Co., 70 Fla. 218, 70 South; 20, L. K. A. 
 1916D, 1230 ; Rogers v. Eaton, 181 Mich. 620, 148 N. W. 348 ; Booth Mercan- 
 tile Co. V. Murphy, 14 Idaho, 212, 93 Pac. 777 ; Merrell v. Purdy, 129 Wis. 
 331, 109 N. W. 82; DaUey v. Singer Manufacturing Co., 88 Mo. 801; Till- 
 man V. Shackleton, 15 Mich. 447, 93 Am. Dec. 198 ; Kriz v. Peege, 119 Wis. 
 105, 95 N. W. 108. Under the New York married woman's act, a married 
 woman may borrow money and purchase upon credit any property necessary 
 or convenient for the purpose of commencing, as well as carrying on, a trade 
 or business. Frecking v. RoUand, 53 N. Y. 422. A mortgage made by a 
 married woman as part of the transaction by which she gains title to the 
 land is valid, though it also secures a debt of her husband or some other 
 person. Conkllng v. Levie, 66 Neb. 132, 94 N. W. 987, 988. And, to the same 
 effect, see Bateman v. Cherokee Fertilizer Co., 21 Ga. App. 158, 93 S. B. 
 1021. Under G. Ik Vt. 3521, a married woman may buy real estate and bind 
 herself for its payment, and that she has no separate estate does not affect 
 her personal liability. Seaver v. Lang, 92 Vt. 501, 104 Atl. 877. A married 
 woman, buying a horse and using it in business, is liable for the price. 
 People's Trust Co. v. Merrill, 78 N. H. 540, 102 Atl. 827. 
 
 7 9 Jones V. Crosthwaite, 17 Iowa, 393; Schneider v. Garland, 1 Mackey 
 (D. C.) 350; Carpenter v. Mitchell, 50 111. 470. 
 
 so Bailey v. Fink, 129 Wis. 373, 109 N. W. 86; Citizens' State Bank of 
 Wood River v. Smout, 62 Neb. 223, 86 N. W. 1068; Stack v. Padden, 111 
 Wis. 42, 86 N. W. 568 ; Burns v. Cooper, 140 Fed. 273, 72 C. C. A. 25 ; Smith 
 V. Howe, 31 Ind. 233; Grand Island Banking Co. v. Wright, 53 Neb. 574, 
 74 N. W. 82 ; Farmers' Bank v. Boyd, 67 Neb. 497, 93 N. W. 676. 
 
 81 Bussel V. People's Sav. Bank, 39 Mich. 67i, 38 Am. Rep. 444. See, also, 
 Hall V. Hall, 118 Ky. 656, 82 S. W. 269; Garrigue v. Kellar, 164 Ind. 676, 
 74 N. E. 523, 69 L. B. A. 870, 108 Am. St. Kep. 324 ; Field v. Campbell, 164 
 Ind. 389, 72 N. E. 260, 108 Am. St. Rep. 301; Sample v. Guyer, 143 Ala. 
 613, 42 South. 106; Gross v. Whiteley, 128 Ga. 79, 57 S. B. 94. 
 
208 wife's equitable and statutory sbpaeatb estate (Ch. 5 
 
 her separate property as if unmarried, she has the right to dispose 
 of it,*^ or to agree to dispose of it/*" but that the jus disponendi will 
 not be implied from a bare jus tenendi; '* that, for instance, a stat- 
 ute giving the right to hold, own, possess, andenjoy,*^ or to hold 
 to her sole and separate use as if she were a single female,'" does 
 not include the pow-er to dispose of real estate. It has also been 
 pointed out that in some states it has been held that the riile is 
 different in the case of personalty, and that the jus disponendi is a 
 necessary incident to the separate ownership of personal property,*'^ 
 but that this distinction is not recognized in all the states. *' Wher-e 
 there is no express statutory authority to contract, but it is en- 
 acted, as in many states, that married women may hold, enjoy, and 
 possess their separate property as if sole, they may make all such 
 contracts as are necessarily incident to such enjoyment.'" Under 
 such a statute a. married woman has been held to have the power to 
 contract for labor and materials for the construction of a hotel 
 on her separate real estate, on the ground that the intention of 
 the statute could not be accomplished unless it also removed the 
 common-law disability to the extent of empowering the wife to 
 make all contracts necessary and convenient to the full enjoyment 
 of her estate."" And generally it may be said that she has power 
 to contract and charge her- separate estate for improvements there- 
 on "^ for work and labor in the cultivation of her farm "^ and for the . 
 
 82Beal V. Warren, 2 Gray (Mass.) 447; ante, p. 202. 
 
 83 Dreutzer v. Lawrence, 58 Wis. 594, 17 N. W. 423. 
 
 Si Miller v. Wetlierby, 12 Iowa, 415. And see Cole v. Van Riper, 44 TU. 
 58 ; Bressler v. Kent, 61 111. 426, 14 Am. Rep. 67 ; Naylor v. Field, 29 N. J. 
 Law, 287; ante, p. -202. 
 
 80 Cole V. Van Riper, 44 111. 58 ; Bressler v. Kent, 61 111. 426, 14 Am. 
 Rep. 67. 
 
 86 Naylor v. Field, 29 N. J. Law, 287. 
 
 87 Naylor v. Field, 29 N. J. Law, 287; Harding y. Cobb, 47 Miss. 599; 
 Beard v. Dedolph, 29 Wis. 136 ; ante, p. 203. 
 
 88 Swift V. Luce, 27 Me. 285; Brown v. Fifield, 4 Mich. 322; Scott v. 
 Scott, 13 Ind. 225; Moore v. Cornell, 68 Pa. 320. 
 
 8 Conway v. Smith, 13 Wis. 140; Cookson v. Toole, 59 111. 519; Williams 
 V. Hugunin, 69 111. 214, 18 Am. Rep. 607; Smith v. Howe, 31 Ind. 233; 
 Lindley v. Cross, Id. 106, 99 Am. Dec. 610; Duren v. Getehell, 55 Me. 241; 
 Mahon v. Gormley, 24 Pa. 80 ; Wright v. Blackwood, 57 Tex. 644. 
 
 »o Conway v. Smith, 13 Wis. 140. i 
 
 81 Bankard v. Shaw, 199 Pa. 623, 49 Atl. 23o'; Popp v. Connery, 138 Mich. 
 84, 101 N. W. 54, 110 Am. St. Rep. 304 ; McAnally v. Hawkins Lumber Co., 
 
 82 Cookson V. Toole, 69 111. 515. 
 
§§ 80-82) POWER TO CHARGE STATUTORY ESTATE BY CONTRACT 209 
 
 purchase of the necessary tools and live stock for the farm.'' So, 
 too, in many states she may bind her estate for necessaries and 
 family expenses."* - 
 
 While the courts have generally said that married women's sepa- 
 rate property acts, being in derogation of common law, will be 
 strictly construed, this does not mean that the court can refuse to 
 give full effect to their terms. It was said in a leading case, under 
 a statute making it lawful for a feme covert to acquire title to real 
 estate b£ gift or grant, and to hold it as her separate estate, that the 
 contract of a married woman to assume the payment of a mort- 
 gage as part of the purchase money for land conveyed to her was 
 valid ; that the law did not intend that she could acquire property 
 without paying for it; and that the power to acquire and hold in- 
 cluded the right to do all acts reasonably necessary in acquiring 
 and holding."'' As has been said by the Pennsylvania court : "Her 
 power to purchase gives her a right to contract for the payment 
 of the purchase money so far as to charge the property with such 
 incumbrance as may be agreed upon to secure its payment." "° 
 
 Power to Charge Separate Property for Debts of Husband 
 
 The statutes creating the separate estate of married women 
 usually provide that the property shall be held by the wife free from 
 the debts of her husband,"^ though it is recognized in many juris- 
 dictions that her property may be held liable for her husband's 
 debts if he is allowed to deal with it as his own with her consent 
 
 109 Ala. 397, 19 South. 417; Vail v. Meyer, 71 Ind. 159; Oolvin v. Currier, 
 22 Barb. (N. Y.) 371 ; Micou v. McDonald, 55 Fla. 776, 46 South. 291 ; Reid 
 V. Miller., 205 Mass. 80, 91 N. E. 223; Lemons v. Biddy (Tex. Civ. App.) 
 149 S. W. 1065 (contract for digging well). 
 
 03 Batchelder v. Sargent, 47 N. H. 262. 
 
 »* See ante, f). -83. 
 
 95 Husler's Ex'rs v. Atwood, 26 N. J. Bq. 504. And see, to the sarae effect, 
 Tiemeyer v. Tumquist, 85 N. T. 516, 39 Am. Rep. 674; Edwards v. Stacey, 
 113 Tdnn. 257, 82 S. W. 470, 106 Am. St. Rep. 831 ; Crosby -v. Waters, 28 
 Pa. Super. Ct. 559 ; Cashman v. Henry, 75 N. Y. 103, 31 Am. Rep. 437 ; Bow- 
 er's Appeal, 68 Pa. 128. 
 
 »8 Bower's Appeal, 68 Pa. 128. 
 
 97 See the statutes of the various states. And see Humbird Lumber Co, v. 
 Doran, 24 Idaho, 507, 185 Pac. 66; Alsdurf v. Williams, 196 111. 244, 63 N. 
 E. 686; Gage v. Dauchy, 34 N. Y. 293 ; Frost v. Knapp, 10 Pa. Super. Ct. 296 ; 
 Smith V. Gott, 51 W. Va. 141, 41 S. E. 175 ; Elliott v. Atkinson, 45 Ind. App. 
 290, 90 N. E. 779; Burnham v. Stoutt, 35 Utah, 250, 99 Pac. 1070; In re Hill 
 (D. C.) 190 Fed. 390 ; Farmers' State Bank v. Keen (Okl.) 167 Pac. 207. The 
 provisions of the statute refer to such debts as were exclusively those of the 
 TIIT.P.& D.Rei,.(3d Ed.)— 14 
 
210 wife's equitable and statutory separate estate (Ch. 5 
 
 and knowledge.'' Nevertheless, the question has often arisen 
 whether the wife has power to charge her estate with such debts. 
 Attention has already been called to the fact that in most states 
 the wife is prohibited from entering into a contract of suretyship,"" 
 and that as a general rule, in the absence of a statute giving her 
 unlimited power to contract, she can charge, her separate estate only 
 by contracts with reference thereto and for the benefit of herself 
 or her^state.^ In accordance with these rules it is generally held ■ 
 that a married woman cannot charge her separate estate by a con- 
 tract of suretyship for the purpose of securing her husband's debt, 
 or by an assumption of his debt.^ So it has been held that she can- 
 not sell her property to a creditor of the husband in extinguishment 
 of his debt.' It is, however, generally conceded that she may bor- 
 row money and give it to her husband to be used in the payment 
 
 husband, and not debts whicli are primarily a charge against ttie wife's es- 
 tate. Schneider v. Breier's Estate, 129 Wis. 446, 109 N. W. 99, 6 U R. A. 
 (N. S.) 917. 
 
 98 Wood V. Tant, 27 Colo. App. 189, 149 Pac. 854 ; O'Farrell v. Vickrage, 
 163 111. App. 519; Lamb v. Lamb, 18 App. Div. 250, 46 N. T. Supp. 219; 
 Early v. Wilson, 31 Neb. 458, 48 N. W. 148; Mertens v. Schlemme, 68 N. J. 
 Eq. 544, 59 Atl. 808. 
 
 89 See ante, p. 160. 
 
 1 See ante, p. 205. 
 
 2 Gross V. Whiteley, 128 Ga. 79, 57 S. B. 94 ; Grosman v. Union Trtist Co., 
 228 Fed. 610, 143 O. O. A. 132, Ajin. Gas. 1917B, 613, affirmed 245 U. S. 412, 
 38 Sup. Ct. 147, 62 L,. Ed. 368 (construing Texas statute); McLeod v. Poe, 
 142 Ga. 254, 82 S. E. 663 ; Johnson v. Holland (Tex. Civ. App.) 204 S. W. 494 ; 
 Underbill v. Mayer, 174 Ky. 229, 192 S. W. 14; Brady v. Equitable Trust 
 Co., of Dover, 178 Ky. 693, 199 S. W. 1082 ; Red River Nat. Bank v. Fer- 
 guson (Tex. Civ. App.) 192 S. W. 1088; Simmons v. International Harvester 
 Co., 22 Ga. App. 358, 96 S. B. 9; ManoB Nat. Bank v. Lowery, 242 Pa. 559, 
 89 Atl. 678; Hamilton v. Moore, 136 La. 631, 67 South. 523; Spencer v. 
 Leland, 178 Ala. 282, 59 South. 593; Smith v. McDonald, 49 Ind. App. 464, 
 97 N. B. 556 ; Bauer v. Ambs, 144 App. Div. 274, 128 N. T. Supp. 1,024 (un- 
 less supported by independent consideration). But see Royal v. Southerland, 
 
 168 N. C. 405, 84 S. B. 708, Ann. Cas. 1917B, 623; Willard v. Greenwood, 
 228 Mass. 549, 117 N. E. 823. Notes signed by husband and wife, in con- 
 sideration of payee's forbearance to sue on husband's account, were based 
 on a good consideration as to the wife. Markel v. De Francesco, 93 Conn. 
 355, 105 Atl. 703. Extension of time of payment of husband's debt is good 
 consideration as to the wife. O. W. Schultz Lumber Co. v. Robinson (S. D.) 
 
 169 N. W. 526. Under Laws Ark. 1915, p. 684, § 1, a married woman may be 
 sued and judgment obtained on her note and open account, the consideration 
 of which was a debt of her husband to plaintiff. Holland v. Bond, 125 Ark. 
 526, 189 S. W. 165. 
 
 8 Gross V. Whiteley, 128 Ga. 79, 57 S. E. 94. 
 
§§ 80-82) POWER TO CHARGE STATUTORY ESTATE BY CONTRACT 211 
 
 of his debts, or may so apply it directly," or she may sell her prop- 
 erty — the purchaser not being a creditor — and apply the proceeds 
 to the payment of her husband's debts." 
 
 In determining the validity of contracts the effect of which is to 
 charge the separate estate, an important, and, indeed, controlling, 
 element is whether there is manifest an intent to charge ; " such in- 
 tent being shown in the instrument itself.^ Thus it has been held 
 that a married woman may make a valid mortgage to secure her 
 husband's debt, as the intent to charge her separate estate is 
 thereby manifested.' The liability is, however, limited to the prop- 
 
 * Gross V. Whiteley, 128 Ga. 79, 57 S. E. 94 ; Sample v. Guyer, 143 Ala. 
 613, 42 South. 106; Rood v. Wright, 124 Ga. 849, 53 S. H. 390; AUen v. Na- 
 tional. Bank of Tifton, 14 Ga. App. 299, 80 S. B. 697. The creditor must act 
 in good faith. Ginsberg v. People's Bank of Savannah, 145 Ga. 815, 89 S. 
 . E. 1086 ; Warren v. Crow, 198 Ala. 670, 73 South. 989. The statute provid- 
 ing that the separate property of the wife shall not be liable for the hus- 
 band's debts was not designed to prevent a married woman from borrowing 
 money or to deny her the right to discharge her husband's debts or to do 
 with her money as she pleases, and a lender's rights are not prejudiced by 
 the wife's disposition of the money borrowed upon her note, provided the 
 transaction is not a subterfuge to evade the statute, or a scheme to procure 
 the obligation of the wife as surety for her husband or another. T5hird 
 Nat. Bank v. Tierney, 128 Ky. 836, 110 S. W. 293, 33 Ky. Law Rep. 418, 18 
 I/. R. A. (N. S.) 81. Where defendant's husband applied for a loan which 
 plaintiff refused to him, but granted the loan to defendant on her note, and 
 she received no benefit, she is not liable thereon. Oswald v. Jones, 254 Pa. 
 32, 98 Atl. 784. Where the wife borrows money from her husband's creditor 
 and hands it back in payment of her husband's debt, she becomes, though by 
 indirection, a surety on her husband's debt, within the prohibition of Code 
 1907, § 4497. Vinegar Bend Lumber Co. v. Leftwich, 197 Ala. 352, 72 South. 
 538. 
 
 5 Gross V. Whiteley, 128 Ga. 79, 57 S. E. 94. See, also, Kriz v. Peege, 119' 
 Wis. 105, 95 N. W. 108. 
 
 «Yale V. Dede'rer, 22 N. T. 450, 78 Am. Dec. 216; Williams v. H|ugunin,i 
 69 111. 214, 18 Am. Rep. 607; Grand Island Banking Co. v. Wright, 53 Neb. 
 574, 74 N. W. 82. 
 
 T Yale V. Dederer, 22 N. T. 450, 78 Am. Dec. 216 ; Grand Island Banking 
 €o. V. Wright, 53 Neb. 574, 74 N. W. 82. See, also, Ankeney v. Hannon, 147 
 tr. S. 118, 13 Sup. Ct. 206, 37 L. Ed. 105, where it was held that, even if the 
 contract shows an intent to charge the wife's separate estate, it will not be 
 extended to cover after-acquired property. To the same effect, see Sticken v. 
 . Schmidt, 64 Ohio St. 354, 60 N. E. 561. 
 
 8 Watts v. Gantt, 42 Neb. 869, 61 N. W. 104; Grand Island Banking Co. 
 V. Wright, 53 Neb. 574, 74 N. W. 82; Goodrum v. Merchants' & Planters'^ 
 Bank, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511; Colonial Bldg. & 
 Loan Ass'n v. Griffin, 85 N. J. Eg. 455, 96 Atl. 901; Young v. Brown, 136 
 Tenn. 184, 188 S. W. 1149 ; Red River Nat. Bank v. Ferguson (Tex.) 206 S.. 
 W. 923 affirming 192 S. W. 1088; Brady v. Equitable Trust Co. of Dover, 
 178 Ky. 693, 199 S. W. 1082; Miller v. Sanders, 98 Ky. 535, 33 S. W. 621.' 
 
312 wife's equitable and statdtoet separate estate (Ch. 5 
 
 erty in regard to which the intent is thus shown, and there can be 
 no judgment for a deficiency against the wife." 
 
 Equitable or Legal Jurisdiction 
 
 Contracts which, before the passage of these acts, were binding 
 in equity on the wife's equitable separate estate, are under most 
 statutes binding in equity on the wife's statutory separate estate. 
 While the wife's separate estate is purely a legal one under the 
 statute, it is held in most states that equity nevertheless has juris- 
 diction to charge the legal estate under such circumstances as 
 would render it liable if the separate estate were a creation of 
 equity.^" "The jurisdiction of a court of equity," it has been said, 
 "over the subject [separate property] does not rest' upon the ground 
 that the estate of the wife is an equitable estate merely, but upon 
 the ground that it is her separate estate, which is equitably subject 
 to contracts and engagements entered into by her which are not 
 legally binding upon her personally, and which cannot be enforced 
 by law." ^^ in some states equitable jurisdiction over legal separate 
 property is denied. ^^ 
 
 She may pledge lier personal property to secure the husband's debt Just 
 V. State Savings Bank, 132 Mich. 600, 94 N. W. 200; Wirgman v. Miller,, 
 98 Ky. 620, 33 S. W. 937; Bartholomew v. Allentown Nat. Bank, 260 Pa. 
 509, 103 Atl. 954. But see Trotter Bros. v. Downs, 200 Ala. 158, 75 South. 
 906, holding that under Code Ala. 1907, § 4497, wife cannot Indirectly be- 
 come surety for husband by mortgaging her property to secure money with , 
 which to pay his debt. And see Washburn v. Gray, 49 Ind. App. 271, 97 
 N. E. 190. A deed executed by a wife to secure a loan contemporaneously 
 made to the husband is void. Gross v. Whitely, 128 Ga. 79, 57 S. E. 94. 
 
 9 Grand Island Banking Co. v. Wright, 53 Neb. 574, 74 N. W. 82 ; Goll 
 IV. Fehr, 131 Wis. 141, 111 N. W. 235; Edwards v. Jefterson Standard Life 
 Ins. Co., 173 N. C. 614, 92 S. E. 695. 
 
 10 3 Pom. Bq. Jur. § 1099 ; Yale v. Dederer, 18 N. Y. 265, 272, 72 Am. Dec, 
 503 ; Ballln v. Dillaye, 37 N. Y. 35 ; Perkins v. Elliott, 23 N. J. Eq. 526; Levi v. 
 Earl, 30 Ohio St. 147; Phillips v. Graves, 20 Ohio St. 371, 389, 5 Am. Rep. 
 675 ; Cox's Adm'r v. Wood, 20 Ind. 54 ; Pond v. Carpenter, 12 Minn. 430 (Gil. 
 315) ; Hall v. Dotson, 55 Tex. 520 ; Wicks v. Mitchell, 9 Kan. 80 ; Ttodd v. 
 Lee, 15 Wis. 365; Donovan's Appeal, 41 Conn. 551; Johnson v. Cummins, 16 
 N. J. Bq. 97, 105, 84 Am. Dec. 142. 
 
 11 Johnson v. Oummins, 16 N. J. Eq. 97, 84 Am. D«e. 142. See, also, Car- 
 penter V. Mitchell, 50 111. 470. A married woman is not bound in personanj 
 by her contract, but her separate prpperty may be charged in equity and 
 sold for Its purchase money or for money or labor expended in improving it 
 or upon her agreement in writing made for its benefit. Kelliher v. Kennard, 
 75 Fla. 665, 79 South. 28. 
 
 12 West V. Laraway, 28 Mich. 464; Gain v. Bunkley, 35 Miss. 119, 145; 
 Maclay v. Love, 25 Gal. 367, 85 Am. Dec. 133. Compare Vail v. Meyer, 71 
 Ind. 159. 
 
§§ 80-82) POWER TO CHARGE STATUTORY ESTATE BY CONTRACT 213 
 
 Such contracts as can be made by a married woman under ex- 
 press statutory provision, as incident to her separate property, and 
 such contracts as she can make, as necessary to the separate enjoy- 
 ment of her property, can be enforced in some states by actions 
 at law. The court says in Conway v. Smith ^' that it could not be 
 assumed that the Legislature intended to rely on equitable aid to 
 help out the objects of the statute, and that it necessarily follows 
 that the contracts contemplated by the statute can be enforced by 
 legal remedies. It was held in that case that an action at law would 
 lie on a promissory note. And in Cookson v. Toole ^* an action at 
 law for work and labor was sustained, the court holding that "the 
 implication of capacity to contract in respect to her separate prop- 
 erty, arising under the statute, is an implication of law, and, being 
 an implication of law, and not of equity, the capacity to contract 
 within the scope of the implication is necessarily a legal capacity 
 and all contracts under it must be legal contracts, cognizable by 
 courts of law." In the leading case of Yale v. bederer,^^ however, 
 under a similar statute, it was s^id that the statute does not remove 
 the legal incapacity which prevents a married woman from con- 
 tracting debts. When a married woman's contracts can be en- 
 forced at law, such remedy has been held in some states not to be 
 exclusive, but cumulative, and that equity has concurrent juris- 
 diction.^* 
 
 13 13 Wis. 125 ; Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, 37 Am. Eep. 
 817. But see Merrell v. Purdy, 129 Wis. 331, 109 N. W. 82, holding that a 
 married woman may, by proper instrument, charge her separate property 
 for any obligation, even for her husband's debt, but the charge is only en- 
 forceable in equity. 
 
 14.59 111. 515. See, also, Williams v. Hugunin, 69 111. 214, 18 Am. Rep. 607; 
 Todd V. Lee, 15 Wis. 365. 
 
 16 18 N. T. 265, 72 Am. Dec. 503. 
 
 16 Phillips V. Graves, 20 Ohio St. 371, 5 Am. Rep. 675; Mitchell v. Otey", ' 
 23 Miss. 236; Johnson v. Cummins, 16 N. J. Eq. 97, 84 Am. Dec. 142; 1 
 Story, Eq. Jur. § 80. 
 
214 ANTBNUPTIAi; AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 CHAPTER VI 
 
 ANTENTJPTIAL AND POSTNUPTIAL SETTLEMENTS 
 
 83. Antenuptial Settlements. 
 
 84. Marriage as a Consideration. 
 
 85. Reasonableness of Pi-ovision for Wife. 
 
 86. Settlements Based on Antenuptial Agreements. 
 S7. Statute of Frauds. 
 
 88-90. Postnuptial Settlements. 
 
 91-92. As against Creditors and Purchasers. 
 
 ANTENUPTIAL SETTLEMENTS 
 
 83. An antenuptial settlement or marriage settlement is an agree- 
 ment entered into before marriage, and in consideration 
 thereof, between an intended husband and wife, or between 
 them and third persons, by which the enjos^ient or dev- 
 olution of property is regulated. A marriage settlement — 
 
 (a) May determine the rights which the husband and wife shall 
 
 have in his or her own, or in each other's, property. 
 
 (b) But, as a rule, it cannot otherwise vary the rights and obliga-/ 
 tions of husband and wife, arising from the marriage 
 relation. 
 
 The term "settlement" is ordinarily applied to agreements en- 
 tered into before marriage, and in contemplation and consideration 
 thereof, by which the enjoyment and devolution of property is 
 regulated.^ In its brpadest sense, however, the term applies also 
 to settlements or agreements made after marriage. In the former 
 case they are called "antenuptial settlements," and in the latter case 
 they are called "postftuptial settlements." The term "marriage , 
 settlement" is often applied to agreements entered into afller 
 marriage — that is, to postnuptial settlements; but this use of the 
 term is improper. A marriage settlement is essentially an agree- 
 ment entered into before marriage, and in consideration thereof.'' 
 
 1 Corker v. Corker, 87 Cal. 643, 25 Pac. 922. 
 
 2 An assignment in consideration of a promise to marry Is not an ante- 
 nuptial contract within the Massachusetts statute (Rev. Laws, c. 153, §§ 26, 
 27). Huntress v. Hanley, 195 Mass. 286, 80 N. E. 946. An oral agreement, 
 entered J into and reduced to writing before marriage and signed after mar- 
 riage, settling on intended wife a lot owned by intended husband and such 
 
§ 83) ANTENUPTIAL SETTLEMENTa 215 
 
 The term therefore includes antenuptial settlements only. Mar- 
 riage settlements may have various objects in view; Ordinarily, 
 the purpose is to alter the interests which the husband and wife 
 would have in their own and in each other's property by the law of 
 the marriage status, and to fix the same according to their own 
 agreement; to preserve property intact in a particular family, or 
 the issue of the contemplated union ; or to prevent the dissipation 
 of the property of either party by extravagance.' The purpose in 
 most cases is to protect the wife and children against want from 
 the possible loss or dissipation of property by the husband. "These 
 marriage settlements are benignly intended to secure to the wife 
 a certain support in any event, and to guard her against being 
 overwhelmed by the misfortunes or unkindness or vices of her 
 husband. They usually proceed from the prudence or foresight 
 of friends, or the warm and anxious affection of parents; and, if 
 fairly made, they ought to be supported according to the true in- 
 tent and meaning of the instrument by which they are created. A 
 court of equity will carry the intention of these settlements into 
 effect, and not permit the intention to be defeated." * 
 
 The ordinary rules governing the construction of contracts ap- 
 ply to antenuptial settlements,^ In so far as the contract is 
 ambiguous the situation of the parties and the surrounding cir- 
 cumstances may be considered.® The intention of the parties is 
 .controlling and must govern,' and in carrying this intention into ef- 
 fect antenuptial contracts should be liberally construed without 
 regard to the strictly technical meaning of the words used,^ and if 
 
 personal property as he might possess at his death, if she was then living as 
 his Wile and survived, , in lieu of all rlghts.iwas in effect an antenuptial con- 
 tract. Haraldson v. Knutson, 142 Minn. 109, 171 N. W. 201. 
 
 3 Crumlish v. Security Trust & Safe Deposit Go., 8 Del. Oh. 3T5, 68 Atl. 
 388. 
 
 ^2 Kent, Comm. 165; Tabb y. Archer, 3 Hen. & M. (Va.) 399, 3 Am. Dec. 
 657 ; McLeod v. Board, 30 Tex. 238, 94 Am. Dec. 301 ; Orostwaight v. Hutch- 
 inson, 2 Bibb (Ky.) 407, 5 Am. Dec. 619. 
 
 5 Landes v. Landes, 268 111. 11, lOS N. E. 691. The law of the state where 
 an antenuptial agreement was made and the marriage was celebrated will 
 govern the rights of the parties. New Jersey Title Guaranty & Trust Co. v. 
 Parker, 85 N. J. Eq. 557, 96 Atl. 574, affirming decree New Jersey Title Guar- 
 antee & Trust Co. V. Same, 84 N. J. Eq. 351, 93 Atl. 196. 
 
 6 In re Hubinger's Estate, 150 Iowa, 307, 130 N. W. 155. 
 
 7 Gordan v. Munn, 88 Kan. 72, 127 Pac. 764, Ann. Cas. 1914A, 783, denying 
 rehearing 87 Kan. 624, 125 Pac. 1, Ann. Cas. 1914A, 783; In re Deller's 
 Estate, 141 Wis. 225, 124 N. W. 278, 25 L. R. A. (N. S.) 751. 
 
 8 CoUins V. Bauman, 125 Ky. 846, 102 S. W. 815. 
 
216 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 the language used is ambiguous so as to admit of more than one 
 construction, that most favorable to the wife should be adopted.' 
 
 There is no rule of law nor principle of public policy which pre- 
 vents husband and wife from thus fixing, by an agreement before 
 marriage, the rights which they shall have in each other's prop- 
 erty.^" Such agreements in so far as they provide for the control 
 and disposition of the property of the parties during the marriage, 
 and in the case of death of either, are generally recognized as valid 
 by the courts, and especially by courts of equity.^^ By these 
 agreements they may relinquish the rights in each other's property 
 which they would otherwise acquire therein by virtue of the mar- 
 riage. ^^ Thus, they may relinquish their distributive shares in 
 each other's estate ^' or the wife may bar her dower, or the husband 
 
 9 Mallow V. Bastes, 179 Ind. 267, 100 N. E. 886 ; In re DeUer's Estate, 141 
 Wis. 255, 124 N. W. 278, 25 U E. A. (N. S.) 751; Oesau v. Oesau's Estate, 
 157 Wis. 255, 147 N. W. 62. 
 
 10 2 Kent, Comm. 163; Campion v. Cotton, 17 Ves. 264; Appleby v. 
 Appleby, 100 Minn. 408, 111 N. W. 305, 10 U E. A. (N. S.) 590, 117 Am. St. Eep. 
 709, 10 Ann. Cas. 563 ; Kroell v. Kroell, 219i 111. 105, 76 N. E. 63, 4 Ann. Cas. 
 801; Kieger v. Schaible, 81 Neb. 33, 115 N. W. 560, 17 L. R. A.- (N. S.) 866, 
 16 Ann. Cas. 700 ; Andrews v. Jones, 10 Ala. 400 ; Tabb v. Archer, 3 n«n. & 
 M. (Va.) 398, 3 Am. Dec. 657; Boardman'g Appeal, 4{> Conn. 169; Caulk 
 V. Fox, 13 Fla. 148; Hanley v. Drumm, 31 La. Ann. 106; Peck v. Peck, 12 
 E. I. 485, 34 Am. Rep. 702 ; McLeod v. Board, 30 Tex. 239, 244, 94 Am. Dec. 
 301; Woods v. Richardson, 117 Mass. 276; Baldwin v. Carter, 17 Conn. 201, 
 42 Am. Dec. 735. See, also, In re Hope-Johnstone, 73 Law J. Ch. 321 [1904] 
 1 Ch. 470, 90 Law T. 253, 20 Times T.aw R. 282, when, however, a postnuptial 
 settlement was involved. 
 
 11 Beclier v. Becker, 241 111. 423, 89 N. E. 737, 26 L. R, A. (N. S.) 858. 
 
 12 See the cases cited in note 10. And see Wetsel v. Firebaugh, 258 111. 
 404, 101 N. E. 602; Rankin v. Schlereck, 166 Iowa, 10, 147 N. W. 180. The 
 prospective spouses may relinquish their respective property rights aside 
 from the homestead. In re Adams' Estate, 161 Iowa, 88, 140 N. W. 872. 
 Compare Weis v. Bach, 146 Iowa, 320, 125 N. W. 211. And see Swingle v. 
 Swingle, 36 N. D. 611, 162 N. W. 912, holding that, an antenuptial agree- 
 ment relating to homestead exemptions is void as contrary to public policy. 
 In order that a marriage settlement may restrict a wife's power to control 
 and dispose of her future acquired property, real and personal, the language 
 of the instrument, especially since the Constitution of 1868, should be plain, 
 and the intent to do so unequivocal. Dunlap v. Hill, 145 N. C. 312, 59 S. E. 
 112. 
 
 IS Glover v. Bates, 1 Atk. 439; Tarbell v. Tarbell, 10 Allen (Mass.) 278; 
 Adams v. Dickson, 23 Oa. 406; McLeod v. Board, 30 Tex. 238, 94 Am. Dec. 
 301; Crostwaight v. Hutchinson, 2 Bibb. (Ky.) 407, 5 Am. Dec. 619. An ante- 
 nuptial contract, whereby the husband agreed to accept in relinquishment 
 of his rights an income of $10,000 annually on the death of his wife, the in- 
 come to cease in the event of his marriage, cutting ofC the homestead rights 
 of the husband and his statutory one-third interest in his wife's property. 
 
§ 83) ANTENUPTIAL SETTLEMENTS 217 
 
 his curtesy.** The husband may agree that his wife may retain all 
 her own property to her sole and separate use, and he may settle 
 his own property on her.*° The agreement may relate to after- 
 acquired property/' and the devolution of the property of either or 
 both may be regulated.^' 
 
 Marriage settlements being intended primarily to guard the prop- 
 erty interests of the parties, and especially to protect the wife 
 against changes in her husband's fortune, are confined in their 
 subject-matter to rights in property,** and so far as property rights 
 are concerned the law does not regard such agreements as con- 
 trary to public policy. As a rule, however, aside from the interest 
 which the husband and wife shall take in each other's property, 
 the rights and obli g -atinns arisinjr from ihe marri figf rpl^tinn i-^n- 
 not be varied by agreement betwe en husband and wife,** or be- 
 tween both or either of them and third persons. A husband, for 
 instance, by merely agreeing to pay his wife a stipulated allowance, 
 ''^nnt T^hv^ys relieve h imself of his common-law liability to pav * 
 fo r her ne cessaries, if the allowance is insufficient.^" Nor can an ar- 
 rangement whereby a married woman lives apart from her husband, 
 and has a separate maintenance secured to her, change the legal 
 character of her relations to her husband, so as to enable her to 
 
 is not prohibited by law, and is valid. Appleby v. Appleby, 100 Minn. 408, 
 111 N. W. 305, 10 K R. A. (N. S.) 590, 117 Am. St. Rep. 709, 10 Ann. Cas. 563. 
 
 1* Charles v. Andrews, 9 Mod. 151 ; Simpson v. Gutteridge, 1 Madd. 609 ; 
 Williams v. Chitty, 3 Ves. 551; Selleck v. Selleck, 8 C5onn. 85; Stilley v. 
 Folger, 14 Ohio, 610; Mines r. Phee, 254 111. 60, 98 N. B. 260; Tilton v. Til- 
 ton, 130 Ky. 2S1, 113 S. W. 134, 132 Am. St. Rep. 359 ; Collins v. Collins, 212 
 Mass. 131, 96 N. E. 588 ; Jacobs v.' Jacobs, 42 Iowa, 600 ; Naill v. Maurer, 
 25 Md. 532. 
 
 15 Baldwin v. Carter, 17 Conn. 201, 42 Am. Dec. 735. 
 
 18 Dimlap V. Hill, 145 N. C. 312, 59 S. E. 112 ; Borland v. Wtelch, 162 N. 
 X. 104, 56 N. E. 556 ; Cole v. American Baptist Home Mission Soc, 64 N. H. 445, 
 14 Atl. 73 ; In re Reisi, 73 Law J. K. B. 929, [1904] 2 K. B. 769, 91 Law T. 
 592, 53 AVkly. Rep. 122, 11 Manson, 229, 20 Times Law B. 547. 
 
 IT Davies v. Davies, 1 Law J. Ch. (N. S.) 31 ; Hunter v. Bryant, 2 Wheat. 
 32, 4 L. Ed. 177; Camp v. Smith, 61 Ga. 449; Jacobs v. Jacobs, 42 Iowa, 
 600 ; Bank of Greensboro v. Chambers, 30 Grat. (Va.) 202, 32 Am. Rep. 661. 
 
 IS Sc-houler, Dom. Rel. (4th Ed.) § 171 ; Isaacs v. Isaacs, 71 Neb. 537, 99 
 N. W. 268. 
 
 19 Isaacs v. Isaacs, 71 Neb. 537, 99 N. W. 268; Clopton v. Clopton, 162 
 Cal. 27, 121 Pac. 720; Christian v. Hanks, 22 Ga. 125; Obeymayer v. Green- 
 leaf, 42 Mo. 304. 
 
 2 Nurse v. Cra^g, 2 Bos. & P. (N. R.) 148; Clopton v. Clopton, 162 Cal. 
 27, 121 Pac. 720; ante, p. 175. 
 
218 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. & 
 
 contract and be sued as a feme sole.^i Nor can a settlement where- 
 by all a wife's property is conveyed in trust for her separate use,^^ 
 nor an express agreement that the husband shall not be liable,^* 
 relieve him from his common-law liability for her antenuptial debts. 
 And an antenuptial agreement by which a husband agreed not 
 to change his domicile has been held void, as an attempt to abridge 
 a legal right of the husband incident to the marriage status.^* 
 
 MARRIAGE AS A CONSIDERATION 
 
 84. Marriage is a sufficient consideration to support an antenuptial 
 settlement. 
 
 (a) In favor of 
 
 (1) The husband and wife and their issue, or the issue of a 
 
 former marriage. 
 
 (2) Collateral relatives, where it is clear that it was intended 
 
 to provide for them. 
 
 (3) But not in favor of mere strangers. 
 
 (b) As against 
 
 (1) The settlor. 
 
 (2) The settlor's creditors, in favor of an innocent benefi- 
 
 ciary, though the settlor was insolvent, and intended 
 to defraud his creditors. 
 
 (3) But not as against creditors if the beneficiary participat- 
 
 ed in the fraudulent intent, or knew of it. 
 
 Nothing is better settled than that marriage is a sufficient con- 
 sideration to support an antenuptial settlement as against the set- 
 tlor.^° It has been said by Mr. Justice Story to be a consideration 
 
 21 Marshall v. Eutton, 8 Term R. 545; Prentiss v. Paisley, 25 Fla. 927, 
 7 South. 56, 7 L. R. A. 640. 
 
 2 2 Powell V. Manson, 22 Grat. (Va.) 177, 193. 
 
 2 3 Harrison v. Trader, 27 Ark. 288. 
 
 2 4 Hair v. Hair, 10 Rich. Eq. (S. C.) 163; Isaacs v. Isaacs, 71 Neb. 537, 9» 
 N. W. 268 ; ante, p. 88. An agreement between parties about to be married 
 that the wife shall live with her husband at tlie home of his parents is an 
 antenuptial 'Contract merged in the marriage contract and of no binding 
 force. Marshak v. Marshak, 115 Ark. 51, 170 S. W. 567, U R. A. 1915E, 161, 
 Ann. Oas. 1916E, 206. 
 
 2 5Vaizey, Set. 'Prop. 70; Unger v. Mellinger, 37 Ind. App. 639, 77 N. B.. 
 814, 117 Am. St. Rep. 348; Pierce v. Vansell, 35 Ind. App. 525, 74 N. B. 554; 
 Colbert v. Rings, 231 111. 404, 83 N. E. 274; Hosmer v. Tiffany, 115 App. 
 Div. 303, 100 N. I. Supp. 707; Graves v. Von Below, 160 Mich. 408, 125 N. 
 
§ 84) MARRIAGE AS A CONSIDERATION 219 
 
 ^'6f the highest value," "* and by Chancellor Kent to be "the high- 
 est consideration in law." "' In a Massachusetts case it was said 
 that an Obligatory agreement to marry is an equally high consid- 
 eration, not differing substantially from the consideration of mar- 
 riage, and sufficient to support an antenuptial settlement, though 
 the settlor's death prevented the marriage.^' In order that a prom- 
 ise to marry, not followed by the marriage contemplated, may sup- 
 port a settlement, the settlement must have been made in consid- 
 eration of the promise ; and the settlement should show very clear- 
 ly that such was the intention of the parties, to authorize a court 
 to hold that the settlement was not conditional upon a marriage 
 actually taking place. It has been held that, where the agreement 
 to marry is rescinded by the parties, there is an entire failure of con- 
 sideration.^ ° The same should be true where the agreement is dis- 
 charged by the death of one of the parties. 
 
 It is well settled that the marriage will support a settlement in 
 favor of the husband and wife and their issue,'" or the children 
 of a former marriage.'^ It seems equally well settled that it will 
 
 W. 379; Henry v. Butler, 87 Kan. 122, 123, Pac. 742; In re Adams' Estate, 
 161 Iowa, 88, 140 N. W. 872 ; Ex parte Marsh, 1 Atk. 158 ; Nairn v. Prowse, 
 ■6 Ves. 752 ; Magniac v. Thompson, 7 Pet. 348, 8 L. Ed. 709 ; Kroell v. Kroell, 
 219 lU. 105, 76 N. E. 63, 4 Ann. Cas. 801 ; Broadrlck v. Broadrick, 25 Pa. 
 Super. Ct. 225; Nesmith v. Piatt, 137 Iowa, 292, 114 N. W. 1053. And see 
 Appleby v. Appleby, lOO Minn. 408, 111 N. W. 305, 10 L.. R. A. (N. S.) 590, 117 
 Am. St. Rep. 709, 10 Ann. Cas. 563, holding that, though the original engage- 
 ment of marriage be absolute and entered Into some months preceding the 
 making and signing of an antenuptial contract, the agreement to marry re- 
 mains a consideration for that contract, and sufficient to support it. An an- 
 tenuptial contract executed by a prospective wife alone in consideration of 
 marriage and a specified sum is not void merely because the money consid- 
 eration was not paid at the time or within the lifetime of the husband. 
 Bibelhausen v. Bibelhausen, 159 Wis. 365, 150 N. W. 516. 
 2« Magniac v. Thompson, 7 Pet. 348, 8 L. Ed. 709. 
 
 27 Sterry v. Arden, 1 Johns. Oh. (N. Y.) 271. 
 
 28 Smith V. Allen, 5 Allen (Mass.) 454, 81 Am. Dec. 758. 
 2 8 Essery v. Cowlard, 26 Ch. Div. 191. 
 
 30 1 Vaizey, Set. Prop. 141 ; Schouler, Husb. & W. § 349 ; Trevor v. Trevor, 
 1 P. Wms. 622 ; Herring v. Wlokham, 29 Grat. (Va.) 628, 26 Am. Rep. 405 ; 
 Vason V. Bell, 53 Ga. 416; Tabb v. Archer, 3 Hten. & M. (Va.) 399, 3 Am. 
 Dec. 657. 
 
 31 Gale V. Gale, 6 Ch. Div. 144; Michael v. Morey, 26 Md. 239, 90 Am. 
 Dec. 106; Vason vj Bell, 53 Ga. 416. In Michael v. Morey, supra, it was 
 said: "The consideration of marriage is a valuable consideration, and not 
 only sustains covenants in favor of the wife and the issue of the marriage, 
 but also covenants for settlements in favor of children of a former marriage, 
 ■as a moral consideration. The children are regarded as purchasers. They 
 
220 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 not support a settlement in favor of entire strangers.'^ Whether 
 it will support a settlement in favor of collateral relatives is a ques- 
 tion upon which the authorities are conflicting. In England, by 
 the weight of authority, the general rule is to exclude them.^* But 
 there are cases which recognize an exception to the general rule, 
 and hold that a settlement will be supported even in favor of collat- 
 eral relatives if there is something over and above the consideration 
 flowing from the immediate parties to the settlement, from which 
 it can be inferred that the collateral relatives were intended to be 
 provided for, and that, if the provision in their behalf had not been 
 agreed to, the superadded consideration would not have been giv- 
 en/* This exception, and even a broader >one, it seems, has been 
 recognized by the Supreme Court of the United States, in Neves 
 V. Scott,^' where is is said, after reviewing some of the English 
 cases : "The result of all the cases, I think, will show that if, from 
 the circumstances under which the marriage articles were entered 
 into by the parties, or as collected from the face of the instrument 
 itself, it appears to have been intended that the collateral relatives, 
 in a given event, should take the estate, and a proper limitation 
 to that effect is contained in them, a court of equity will enforce the 
 trust for their benefit. They will not be regarded as volunteers 
 outside of the deed, but as coming fairly within the influence of the 
 considerations upon which it is founded. The consideration will 
 extend through all the limitations for the bendit of the remotest 
 persons provided for consistent with law." *° 
 
 may enforce the obligations of the contracting parties, notwithstanding the 
 nonperformance of mutual stipulations on the other side, unless they are 
 conditional and dependent covenants. Although the defaulting party may 
 not, in some instances, be allowed to enforce the articles specifically, the 
 children, the Innocent objects of parental solicitude and care, are entitled to 
 all the benefit of the uses under the settlement, notwithstanding there has 
 been a faUure on one side. These reasons include as well the issue of a 
 former as a subsequent marriage. There can be no equity in inflicting upon 
 the only child of a former marriage, dependent on its mother for support, in 
 whose behalf provision was made in anticipation of a second marriage, the 
 penalty of forfeiture, because of the subsequent misconduct of her mother." 
 
 32 Sutton V. Ohetwynd, 3 Mer. 249 ; Merritt v. Scott, 6 Ga. 563, 50 Am. 
 Dec. 365. 
 
 33 1 Valzey, Set. Prop. 76, 140. 
 
 84 Vernon v. Vernon, 2 P. Wms. 594 ; Stephens v. Trueman, 1 Ves. Sr. 
 73 ; Edwards v. Countess of Warwick, 2 P. Wms. 171. See Neves v. Scott, 9 
 How. 196, 13 L. Ed. 102. 
 
 85 9 How. 196, 13 L. Ed. 102 ; 13 How. 268, 14 L. Ed. 140. 
 
 8 8 And see Tabb v. Archer, 3 Hen. & M. (Va.) 399, 3 Am. Dec. 657; Hos- 
 
§ 84) MABKIAQE AS A CONSIDEBATION 221 
 
 As Against Creditors 
 
 The statute of 13 Eliz. c. 5, provides that all conveyances and dis- 
 positions of property, real or personal, made with the intent to de- 
 lay, hinder, or defraud creditors, shall be void as against them; 
 and the statute of 27 Eliz. c. 4, declares void all conveyances of 
 real property, made with the intent of defeating subsequent purchas- 
 ers. These statutes are merely declaratory of the common law,'^ 
 and have been thus accepted in some of our states, while in others 
 they have been expressly adopted by statute, or re-enacted.^* Both 
 of these statutes contain provisos that nothing therein contained 
 shall defeat any estate or interest made on good consideration, and 
 bona fide to any person not having at the time notice of any fraud- 
 ulent purpose. 
 
 Since marriage is a valuable consideration, antentfptial settle- 
 ments are not fraudulent as against creditors and purchasers, un- 
 der these statutes, wh^re they are made in favor of innocent parties. 
 A marriage settlement, even of all of the settlor's property, in favor 
 of the husband or wife and their issue, will always be supported 
 as against creditors of the settlor or purchasers, if the beneficiaries 
 are innocent of any fraud; and it can make no difference that the 
 settlor was insolvent, or his intent fraudulent, if the beneficiaries 
 are innocent.^' A settlement by a husband in favor of his wife 
 has been upheld as against his creditors -^notwithstanding false re- 
 citals that the property was the wife's, because it did not appear 
 that she knew that his circumstances were Such as to make the 
 settlement a fraud on any one.*"- As has been said by Mr. Justice 
 Story: "Nothing can be clearer, both upon principle and author- 
 ford v. Rowe, 41 Minn. 245, 42 N. W. 1018 ; Cole v. American Baptist Home 
 Mission Soc., 64 N. H. 445, 14 Atl. 73. 
 
 3^4 Kent, Comm. 462, May, Fraud. Oonv. 3; Rickards- v. Attorney Gen- 
 eral, 12 Clark & F. 30, 42; Hamilton v. Russell, 1 Cranch, 309, 2 L. Ed. 
 118. 
 
 38 4 Kent, Comm. 468; May, Fraud. Conv. 2. 
 
 3 9 Campion v. Cotton, 17 V^s. 272; Magniac v. Thompson, 7 Pet. 367, 8 l! 
 Ed. 709 ; Herring v. Wickham, 29 Grat. (Va.) 628, 26 Am. Rep. 405 ; Sterry 
 V. Arden, 1 Johns. Ch. (N. Y.) 261; Smith v. Allen, 5 Allen (Mass.) 454, 81 
 Am. Dec. 758; Andrews v. Jones, 10 Ala. 400; Jones' Appeal, 62 Pa. 324; 
 Bunnel v. Witherow 29 Ind. 123 ; Prewit v. Wilson, 103 U. S. 22, 26 L. Ed. 
 360 ; Bridge v. Eggleston, 14 Mass. 245, 7 Am. Dec. 209 ; Nance v. Nance, 84 
 Ala. 375, 4 South. 699, 5 Am. St. Rep. 378; Bumgardner v. Harrisr92 Va. 
 188, 23 S. E. 229 ; Boggess v. Richards' Adm'r, 39 W. Va. 567, 20 S. E. 599, 
 26 L. R. A. 537, 45 Am. St. Rep. 938 ; Hosmer t. Titeany, 115 App. Div. 303* 
 100 N. Y. Supp. 797. 
 
 *o Campion v. Cotton, 17 Yes. 272. 
 
222 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 ity, than the doctrine that to make an antenuptial settlement void, 
 as a fraud upon creditors, it is necessary that both .parties should 
 concur in, or have cognizance of, the intended fraud. If the settlor 
 alone intend a fraud, and the other party have no notice of it, but 
 is innocent of it, she is not, and cannot be, affected by it. Mar- 
 riage, in contemplation of the law, is not only a valuable consid- 
 eration to support such a settlement, but is a consideration of the 
 highest value; and, from motives of the soundest policy, is up- 
 held with a steady resolution. The husband and wife, parties to 
 such a contract, are therefore deemed, in the highest sense, pur- 
 chasers for a valuable consideration; and so that it is bona fide, 
 and without notice of , fraud brought home to both sides, it be- 
 comes unimpeachable by creditors." *^ It can make no difference, 
 in so far as the validity of an antenuptial settlement by a husband 
 on his wife and children is concerned, that, before the settlement 
 and marriage, he lived with the woman in fornication.*^ 
 
 If in any case, on the other hand, there is an intent both on the 
 part of the settlor and of the beneficiary to delay and defraud 
 creditors, or if there is such an intent on the part of the settlor, 
 and the beneficiary knows of it, the settlement will not be upheld.*^ 
 "Fraud may be imputable to the parties either by. direct co-opera- 
 tion in the original design at the time of its concoction, or by 
 constructive co-operation from notice of it, and carrying the design, 
 after such notice, into execution."** Of course an antenuptial 
 agreement that the wife's property shall remain hers is not defeated 
 by the fact that the object of the agreement is to defeat the hus- 
 band's creditors.*" 
 
 iiMagniac v. Thompson, 7 Pet. 348, .'393, 8 L. Ed. 709. See, also, Mc- 
 Knight V. Klngsley, 48 Ind. App. 372, 92 N. E. 743 ; J. P. Leininger Lumber 
 Co. V. Dewey, 86 Neb. 659, 126 N. W. 87, 21 Ann. Cas. 471. 
 
 42 Ooutts V. Greenhow, 2 Munf. (Va.) 363, 5 Am. Dec. 472, reversing Green- 
 how V. Ooutts, 4 Hen. & M. (Va.) 485. And see Herring v. Wiclcham, 29 Grat. 
 (Va.) 628, 26 Am. Rep. 405. 
 
 *s Magniac v. Thompson, 7 Pet. 348, 8 L. Ed. 709 ; Davidson v. Graves, 
 Riley, Eq. (S. 0.) 232; Colomblne v. Penhall, 1 Smale & Giff. 228, 257; Bul- 
 mer v. Hunter, L. B. 8 Eq. 46. 
 
 ** Per Story, J., in Magniac v. Thompson, 7 Pet. at page 394, 8 L. Ed. 709. 
 
 45 Baldwin v. Carter, 17 Conn. 201, 42 Am. Dee. 735. 
 
85) REASONABLENESS OF PROVISION FOB WIFE 223 
 
 REASONABLENESS OF PROVISION FOR WIFE 
 
 85. An antenuptial agreement by which the wife releases her rights 
 in the husband's property must be accompanied by the 
 utmost good fciith and free from fraud on the, part of the 
 husband, and the provision for the wife must be reason- 
 ably proportionate to the means of the husband. 
 
 As antenuptial settlements are intended primarily to protect the 
 wife and children against want from the possible loss or dissipation 
 of the property of the husband, it is essential that the agreement by 
 which the wife releases her rights in the husband's property in 
 consideration of a provision for her benefit should be characterized 
 by the utmost good faith,*' ■ free from fraud on the part of the 
 husband,*' and the provision for the wife should be reasonably 
 proportionate to the means of the husband.** The courts will 
 
 *6in re Kline's Estate, 64 Pa. 122; Achilles v. Achilles, 137 111. 589, 28 
 N. E. 45 ; Bierer's Appeal, 92 Pa. 265. 
 
 N 47Murdocli V. Murdock, 121 111. App. 429; Ellis v. Ellis, 1 Tenn. Ch. App. 
 198; In re Deller's Estate, 141 Wis. 255, 124 N. W. 278, 25 L. R. A. (N. 
 S.) 751 ; Stansberry v. Stansberry, 102 Neb. 489, 167 N. W. 563 ; Tilton v. Til- 
 ton, 130 Ky. 281, 113 S. W. 134, 132 Am. St. Eep. 359; Maze's Ex'rs v. 
 Maze, 99 S. W. 336, 30 Ky. Law Kep. 679; Pierce v. Pierce, 71 N. X. 154, 
 27 Am. Rep. 22. 
 
 *8 Murdock v. Murdock, 219 111. 123, 76 N. E. 57; Ellis v. Ellis, 1 Tenn. 
 Ch. App. 198; Tiernan v. Binns, 92 Pa. 248; Colbert v. Rings, 231 111. 404, 
 83 N. E. 274;" Watson v. Watson, 104 Kan. 578, 180 Pac. 242, 182 Pac. 643; 
 Stephens v. Stephens, 181 Ky. 480, 205 S. W. 573; Gaines v. Gaines' Adm'r, 
 163 Ky. 260, 173 S. W. 774; Slingerland v. Slingerland, 115 Minn. 270, 132 
 N. W. 326 ; In re Haberman's Estate, 239 Pa. 10, 86 Atl. 641. An antenup- 
 tial contract is not invalid merely because the wife does not receive there- 
 under as much as she would if there were no contract. Landes v. Landes, 
 268 111. 11, 108 N. E. 691. Disproportion to husband's means will not render 
 contract invalid, where wife knew of the extent of the husband's property. 
 Xockey v. Marion, 269 111. 342, 110 N. E. 34. To the same effect see Gordon 
 V. Munn, 87 Kan. 624, 125 Pac. 1, Ann. Cas. 1914A, 783, rehearing denied 
 88 Kan. 72, 127 Pac. 764, Ann. Cas. 1914A, 783. An antenuptial contract, 
 whereby neither the husband nor the wife was to claim the property of 
 the other at the other's death, is not so disproportionate and unreasonable 
 as to raise the presumption of fraud. Watson v. Watson, 104 Kan. 578, 180 
 Pac. 242, 182 Pac. 643. In construing an antenuptial Contract, the court 
 should have regard to the interests of the children of the contracting par- 
 ties living at the time it was entered into in determining whether the con- 
 tract is reasonable and fair to the wife. In re Hubinger's Estate, 150 Iowa, 
 307, 130 N. W. 155. 
 
 There was too great disproportion where wife was to have only $1,000 
 
224 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 rigidly scrutinize an antenuptial c ontract, qj i parentlv uniust. which 
 deprives tne wite ot any interest in her husband's estate without 
 providin g for her if she survives him,*" and if any ofthe essentia ls 
 of good faith are lacking, the settlement may be. set asid e in 
 eq uity.°° 
 
 The parties to an ante nuptial contr act do not deal at arm's 
 length,"^ but they occupy a conhdential relation to e^.h othe r.°' 
 It_is, theretore, essenti al that the contractbe entered into with 
 fullknowle dge of all that may materially affect it.° ° T^^ tb^ p''"- 
 vision s ecured for the intended wife is disproportionate to the 
 
 out of an estate of $30,000. Stephens v. Stephens, 181 Ky. 480, 205 S. W. 
 573. And. where she would have only a small farm, the husband being 
 worth $200,000. Shirey v. Shirey, 87 Ark. l75, 112 S. W. 369. And where 
 wife would receive $500 a year during husband's life and $10,000 at his death, 
 the husband being worth $130,000. Warner v. "Warner, 235 111. 448, 85 N. E. 
 630. But see In re Deller's .Estate, 141 Wis. 255, 124 N. W. 278, 25 L. R. A. 
 (N. S.) 751, holding that where an antenuptial agreement made a provi- 
 sion of $5,000 for the prospective wife out of the husband's estate at his 
 death, and the estate amounted to $85,000, the provision would not be so 
 inadequate as to render the agreement unenforceable, because of the mere 
 insufficiency of the provisions made for the intended wife. 
 
 4 9 In re Eny art's Estate, 100 Neb. 337, 160 N. W. 120; In re Deller'a Es- 
 tate, 141 Wis. 255, 124 N. W. 27S, 25 L. R. A. (N. S.) 751; Bibelhauscn v. 
 Bibelhausen, 159 Wis. 365, 150 N. W. 516. 
 
 5 Kline v. Kline, 57 Pa. 120, 98 Am. Dec. 206; Pierce v. Pierce, 71 N. T. 
 154, 27 Am. Rep. 22 ; Peaslee v. Peaslee, 147 Mass. 171, 17 N. E. 506 ; Con- 
 nor V. Stanley, 72 Cal. 556, 14 Pac. 306, 1 Am. St. Rep. 84 ; Ellis v. EUis, 1 
 Tenn. Ch. App. 198. In the absence of fraud, it is not ground to set aside 
 a settlement that the wife was not fully informed as to her legal rights^ 
 Robbins v. Robbins, 225 111. 333, 80 N. E. 326, 9 L. R. A. (N. S.)"953. A setUe- 
 ment will not be set aside on the ground of mistake because it contained no 
 provision for revocation. Crumlish v. Security Trust & Safe Deposit Co., 8 
 Del. Ch. 375, 68 Atl. 388. 
 
 51 Pierce v. Pierce, 71 N. Y. 154, 27 Am. Rep. 22; Maze's Ex'rs v. Maze, 
 99 S. W. 386, 30 Ky. Law Rep. 679 ; Bierer's Appeal, 92 Pa. 265. 
 
 5 2 Achilles v. Achilles, 137 lU. 589, 28 N. B. 45; Pierce v. Pierce, 71 N. 
 T. 154, 27 Am. Rep. 22 ; Martin v. CoUison, 266 111. 172, 107 N. E. 257 ; SPUR- 
 LOCK V. BROWN, 91 Tenn. 241, 18 S. W. 868, Cooley Cas. Persons and Domes- 
 tic Relations, 113; Tiernan v. Binns, 92 Pa. 248; Nesmith j. Piatt, 137 Iowa, 
 292, 114 N. W. 1053, holding that the parties to an antenuptial agreement 
 do not occupy any such relation of trust toward each other as to call for 
 affirmative proof of the fairness of the agreement when contested by the 
 wife after the death of the husband. 
 
 63 Warner v. Warner, 235 111. 448, 85 N. E. 630; Murdock v. Murdock, 
 121 111. App. 429; Gaines v. Gaines' Adm'r, 163 Ky. 260, 173 S. W. 774; 
 Stratton v. Wilson, 170 Ky. 61, 185 S. W. 522, Ann. Cas. 1918B, 917; In 
 re Enyart's Estate, 100 Neb. 337, 160 N. W. 120 (holding that the fact that 
 the prospective wife knows in a general way that the husband is reputed 
 wealthy is not sufficient to satisfy the requirement as to fair disclosure). 
 
§ 86) SETTLEMENTS BASED ON ANTENUPTUL AGREEMENTS 225 
 
 means of the intended husband, it raises a presumption of fraud 
 or concealment, throwing upon those claiming in the husband's 
 right the burden of disproving the same."* 
 
 In determining the fairness and reasonableness of the provision 
 for the wife, the wealth of the husband, the existing means of the 
 wife, and the age of the parties may be considered.^" 
 
 SETTLEMENTS BASED ON ANTENUPTIAL, 
 AGREEMENTS 
 
 86, The consideration of maHriage supports a settlement made aft- 
 er marriage, if in pursuance of a valid antenuptial agree- 
 ment in compliance with the statute of frauds. 
 
 A settlement, though not made until after marriage, is support- 
 ed by the consideration of marriage as fully as if made before 
 marriage, if it is made in pursuance of a valid antenuptial agree- 
 ment.^" Prior to the enactment of the statute of frauds, which, as 
 will presently be seen, requires all agreements in consideration of 
 marriage to be in writing,"' it was held that a settlernent made aft- 
 er marriage, in pursuance of an antenuptial agreement, was valid, 
 
 B4 Taylor v. Taylor, 144 111. 436, 33 N. E. 532 ; Murdoch v. Murdock, 219 
 111. 123, 76 N. E. 57; Achilles v. Achilles, 151 111. 136, 37 N. E. 693; Hes- 
 sict V. Hessick, 169 III. 486, 48 N. B. 712; Mines v. Phee, 254 111. 60, 98 
 N. B. 260 ; Landes v. Landes, 268 111. 11, 108 N. B. 691 ; Rankin v. Schiereck, 
 166 Iowa, 10, 147 N. W. 180 ; Bibelhausen v. Bibelhausen, 159 Wis. 365, 150 
 N. W. 516 ; Bierer's Appeal, 92 Pa. 265 ; SPURLOCK v. BROWN, 91 Tenn. 241, 
 18 S. W. 868, Cooley Cas. Persons and Domestic Relations, 113; McRae v. 
 Battle, 69 N. C. 98. But see In re Whitmer's Estate, 224 Pa. 413, 73 Atl. 
 551. ■ ' - 
 
 5 5 Brooks V. 'Brooks' Ex'rs (Ky.) 58 S. W. 450, 22 Ky. Law Rep. 555; 
 Neely's Appeal, 124 Pa. 406, 16 Atl. 883, 10 Am. St. Rep. 594; Hosford v. 
 Rowe, 41 Minn. 245, 42 N. W. 1018; Nesmith v. Piatt, 137 Iowa, 292, 114 N. 
 W. 1053. An antenuptial contract is voidable on account of the incapacity of 
 the wife by reason of infancy. Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369. 
 
 58 1 Vaizey, Set. Prop. 72; Tawney v. Crowther, 3 Brown, Ch. 818; 
 Coles V. Trecothlck, 9 Yes. 250; Jason v. Jervis, 1 Vern. 284, 286; Reade v. 
 Livingston, 3 Johns. Ch. (N. Y.) 481, 8 Am. Dec. 520; Sir Ralph Bovy's Case, 
 1 Vent. 193 ; Tabb v. Archer, 3 Hen. & M. (Va.) 399, 3 Am. Dec. 657 ; . Broad- 
 rick V. Broadrick, 25 Pa. Super. Ct. 225; Pierce v. Vansell, 35 Ind. Appi 
 525, 74 N. E. 554. But a settlement based on an antenuptial agreement look- 
 ing to a possible separation is not based on a good consideration. Sawyer 
 V. Churchill, 77 Vt. 273, 59 Atl. 1014, 107 Am. St. Rep. 762. 
 
 57 Post, p. -226. 
 
 TIFF.P.& D.REr,.(3D Ed.)— 15 
 
326 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 though the agreement was not in writing.''* Since the enactment 
 of the statute, however, all agreements in consideration of marriage 
 must be evidenced by writing before the court can recognize them 
 as having any effect; and it follows that an antenuptial agreement 
 must be in writing, in order that a settlement made in pursu- 
 ance thereof after marriage may be upheld.'" 
 
 STATUTE OF FRAUDS 
 
 87. Under the statute of frauds, an agreement in consideration of 
 marriage must be evidenced by writing, or it cannot be 
 proved or recognized by the courts. 
 
 The statute of frauds and perjuries (St. 29 Car. II, c. 3, § 17) pro- 
 vides that "no action shall be brought whereby * * * ^ charge 
 any person upon any agreement made upon consideration of mar- 
 riage, * * * unless the agreement upon which such action shall 
 be brought, or some memorandum or note thereof, shall be in writ- 
 ing, and signed by the party to be charged therewith, or some other 
 perspn thereunto by him lawfully authorized." This statute has 
 been substantially re-enacted in this country. 
 
 The statute applies to all agreements for which a marriage is 
 the consideration, such as a promise to pay money, or to make a 
 settlement of property if a marriage is consummated, and so in- 
 cludes marriage settlements or agreements therefor.'" The stat- 
 
 6 8 Griffin v. Stanhope, Cro. Jac. 454 ; Sir Ralph Bovy's Case, 1 Vent. 193. 
 
 6 9 Montacute v. Maxwell, 1 P. Wms. 618, 1 Strange, 236; Dundas v. Dutens, 
 1 Ves. Jr. 196; Eeade v. Livingston, 3 Johns. Ch. (N. Y.) 481, 8 Am. Dee. 520; 
 Tawney v. Crowther, 3 Brown, Ch. 263; Coles v. Trecothick, 9 Ves. 250; 
 Lloyd V. Fulton, 91 U. S. 479, 23 L. Ed. 363; Bradley v. Saddler, 54 Ga. 
 681 ; Finch v. Finfch, 10 Ohio St. 501 ; Henry v. Henry, 27 Ohio St. 121 ; Flen- 
 ner v. Flenner, 29 Ind. 569; Izard v. Middelton, Bailey, Eq. (S. C.) 228. 
 
 80 Clark, Cont. 101, 102; Tawney v. Crowther, 3 Brown, Ch. 263; Coles v. 
 Trecothick, 9 Ves. 250; Caton v. Caton, 1 Ch. App. 137; Ogden v. Ogden, 1 
 Bland (Md.) 284 ; Crane v. Gough, 4 Md. 316 ; Eeade v. Livingston, 3 Johns. 
 Ch. (N. Y.) 481, 8 Am. Dec. 520 ; Henry v. Henry, 27 Ohio St. 121 ; Finch v. 
 Finch, 10 Ohio St. 507 ; Flenner v. Flenner, 29 Ind. 564 ; Caylor v. Roe, 99 
 Ind. 1 ; Lloyd v. Fulton, 91 U. S. 479, 23 L. Ed. 363 ; Deshon v. Wood, 148 
 Mass. 132, 19 N. E. 1, 1' L. R. A. 518; Hammond v. Hammond, 135 Ga. 768, 
 70 S. E. 588; JlcCartney v. Titsworth, 142 App. Div. 292, 126 X. Y. Supp. 905; 
 Rowell v. Barber, 142 Wis. 304, 125 N. W. 937, 27 L. R. A. (N. S.) 1140; 
 Watkius V. Watkins, 82 N. J. Eq. 483, 89 Atl. 253, affirmed 85 N. J. Eq. 217, 
 95 Atl. 1079; Chase v. Fitz, 182 Mass. 359; McAnnulty v. McAnnulty, 120 
 111. 26, 11 N. E. 397, 60 Am. Rep. 552 ; Mallory's Adm'rs v. Mallory's Adm'r, 
 
§ 87) STATUTE OF FRAUDS , 227 
 
 ute, therefore, applies to an agreement by a man and woman in 
 contemplation of marriage that each shall retain the title to his or 
 her own property, and dispose of it as if unmarried; "^ or that the 
 survivor shall take no interest in the property of the other ; "f or 
 , that the survivor shall take certain property."^ 
 
 The memorandum required by the statute of frauds does not go 
 to the existence of the contract, but is evidence only. A parol 
 agreement within the statute exists. It simply cannot be proved, 
 and is unenforceable. For this reason, it is held that the note or 
 memorandum in writing need not be made at the time the contract 
 is made, but may be made at any time before it is sought to en- 
 force it. This applies to other contracts within the statute of' 
 frauds;®* and there is no ground upon which the courts are au- 
 thorized to make an exception in the case of agreements in con- 
 sideration of marriage. Nevertheless it seems to be the rule that a 
 verbal agreement in consideration of marriage is not taken out of 
 the operation of the statute by being reduced to writing after the 
 marriage ; "^ as has been shown, a settlement made after marriage, 
 in pursuance of a valid antenuptial agreeirient, is supported by the 
 consideration of marriage, but cannot be upheld unless there is 
 written evidence of the antenuptial agreement, since the agreement 
 cannot be proved by parol. Some of the courts have intimated, but 
 
 92 Ky. 316, 17 S. W. 737; Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157; 
 ante, p. 214. In Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615, 23 Am. St. 
 Hep. 404, It was held that the statute did hot apply to an oral agreement 
 between a man and woman, by which the man was to provide for the com- 
 fort and support of the woman during life, pay her debts, ta^e care of, 
 manage, and improve certain land, so as to make it productive, and to that 
 end that the parties should marry and live together on the land, which 
 should be conveyed by the woman to the man in fee simple. The court 
 thought that the consideration for the conveyance of the land was the pro- 
 vision for the support and comfort of the woman and not the marriage. The 
 statute does not apply to a promise to marry, the consideration for which 
 is, not the marriage, but the promise of the other party. Clark v. Pendle- 
 ton, 20 Conn. 495; Clark, Cont. 101. , 
 
 61 Mallory's Adm'rs v. Mallory's Adm'r, 92 Ky. 316, 17 S. W. 737. 
 
 62 Carpenter v. Comings, 51 Hun, 638, 4 N. Y. Supp. 947. 
 
 63 Hannon v. Hounihan, 85 Va. 429, 12 S. B. 157. And see White v. Bige- 
 low, 154 Mass. 593, 28 N. E. 904 ; Adams v. Adams, 17 Or. 247, 20 Pac. 633. 
 
 61 Clark, Cont. 116, 128, and cases there cited. 
 
 65 Adams v. Swift, 169 App. Div. 802, 155 N. Y. Supp. 873 ; Rowell v. Bar- 
 ber, 142 Wis. 304, 125 N. W. 937, 27 L. R. A. (N. S.) 1140; McAnnulty v. 
 McAnnulty,120 111. 26, 11 N. E. 397, 60 Am. Rep. 552; Prazer v. Andrews, 134 
 Iowa, 621, 112 N. W. 92, 11 L. R. A. (N. S.) 593, 13 Ann. Gas. 556; London 
 V. G. L. Anderson Brass Works, 197 Ala. 16, 72 South. 359. 
 
228 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 not decided, that it is not sufficient in these cases for the written 
 evidence of the antenuptial agreement to be supplied by recitals in 
 the instrument by which the settlement in pursuance thereof is 
 made after marriage/" Under the principle stated above, however, 
 such a recital may be sufficient."^ 
 
 The note or memorandum in writing required by the statute need' 
 not be a formal written agreement. Any writing which shows all 
 the terms of the agreement, the subject-matter, and the parties, and 
 which is signed by the party to be charged, or his or her duly 
 authorized agent, is sufficient, since written evidence of the agree- 
 ment is all that is required. There is no difference in this respect 
 between this kind of an agreement and any other agreement within 
 the statute."' In a late case, a letter to a mother, proposing to 
 marry her daughter, shown to the latter, and stating that the writer 
 would convey certain land to the daughter when they should be 
 married, was held a. sufficient memorandum of the agreement to 
 -convey."" The memorandum may consist entirely of correspond- 
 ence. It may consist of any number of separate papers, provided 
 the papers refer to and identify each other. The most informal 
 kind of a memorandum will suffice if it shows the agreement and its 
 terms.'" 
 
 The marriage of the parties is not such part performance as 
 will,' even in equity, take a parol antenuptial agreement out of the 
 operation of the statute.''^ 
 
 «6 Dictum ia Randall v. Morgan, 12 Ves. 67, and in Reade v. Livingston, 3 
 Johns. Ch. (N. T.) 481, 8 Am. Dec. 520. 
 
 67 Dictum in Montacute v. Maxwell, 1 P. Wms. 618, 1 Strange, 236, and in 
 Dundas v. Dutens, 1 Ves. Jr. 196. 
 
 68 See Clark, Oont. 114-128, where the sufficiency of the memorandum re- 
 quired by the statute is discussed at length, and the cases on the subject are 
 collected. 
 
 6 North Platte Milling & Elevator Co. v. Price, 4 Wyo. 293, 33 Pac. 664; 
 
 ToHammersley v. De Biel, 12 Clark & F. 45; Clark, Cont. 114. 
 
 ■71 Hannon v. Hounihan, 85 Va. 429, 12 S. E. 157 ; Johnstone v. Mappin, 
 60 Law J. Ch. 241; Flenner v. Flenner, 29 Ind. 564; Hammond v. Ham- 
 mond, 135 Ga. 768, 70 S. E. 588; Watkins v. Watkins, 82 N. J. Eq. 483, 89 
 Atl. 253, affirmed 85 N. J. Eq. 217^ 95 Atl. 1079; Manning v. Riley, 52 N. J. 
 Eq. 39, 27 Atl. 810. The execution of a deed pursuant to an oral antenuptial 
 agreement and deposit thereof to take effect on his death is such perform- 
 ance as will take the agreement out of the statute of frauds. Rowell v. 
 Barber, 142 Wis. 304, 125 N. W. 937, 27 L. R. A. (N. S.) 1140. 
 
|§ 88-90) POSTNUPTIAL SETTLEMENTS 229 
 
 POSTNUPTIAL SETTLEMENTS 
 
 88. At common law, contracts, gifts, and conveyances, made be- 
 
 tween husband and wife directly and without the interven- 
 tion of trustees or third persons, are void. 
 
 89. In equity, the common-law rule does not apply fully ; but 
 
 (a) Contracts between husband and wife will be supported, 
 where they would be good at law if made with trustees for 
 the wife. 
 
 ih) Gifts by the husband to the wife are good as between the 
 parties, where there is an irrevocable gift to some person 
 as trustee for the wife, or where the husband divests him- 
 self of the property, and agrees to hold as trustee for the 
 wife. 
 
 (c) Conveyances by the husband directly to the wife are good as 
 between the parties, when a just and reasonable provision 
 for the wife. 
 SO. Under modem statutes removing the disabilities of coverture, in 
 many states contracts, gifts, and conveyances made be- 
 tween husband and wife, directly and without the inter- 
 vention of trustees or third persons, are valid. 
 
 Postnuptial settlements include not only formal settlements made 
 by husband or wife or third persons, but also all transfers of real 
 ■.or personal property made between husband and wife. 
 -At Common Law 
 
 By reason of the common-law idea of the unity of husband and 
 wife, thev cannot, at common law, enter into any valid rnntrart 
 with each other.^ '' Nor, apparently for the same reason, does the 
 common law^ecognize as having any validity whatever, even as be- 
 tween the parties themselves, a gift of personal^ property,^" or a 
 conveyance of real property,'* directly between husband and wife. 
 Such a gift ,0r conveyance is a mere nullity. "If any principle of 
 
 J2 Barron v. Barron, 24 Vt. 375; Lister v. Lister, 86 N. J. Eq. 30 97 Atl 
 170. And see ante, p. 159. ' 
 
 7srOo. Litt. 187b:; Kitchen v. Bedford, 13 Wall. 413, 20 L. Ed. 637- Mannv 
 
 V. Rixford, 44 III. 1^. '' *^»Jiny 
 
 7*Oo,. JMt 187b, Sa, il2a; Beard v. Beard, 3 Atk. 72; Philliros v Rnm^c 
 1 Q. B. Div. 440; VoQiftiees v. Presbyterian Church, 17 Barb (N VTiftq-'" 
 Martin v. Martin, 1 GreeiJL (Me.) 394; Williams v. Betts (Del. Ch) 98 At Wi ' 
 M&gsilj y, WMlAJi, X03 Muss. 307. ' "' ^^^ ' 
 
230 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 common law is settled and perfectly at rest, it seems to be this: 
 ^lat a husban d cannot convey an estate by deed to his Wife." ''^ 
 It is equally well settled that a wife cannot at common law make a 
 conveyance directly to her husband, nor can they effect this pu r- 
 pose by joining in a deed to him. '^" 
 
 Of course, even at common law, a husband can make a valid corn- 
 tract with trustees, or a valid gift of personalty or conveyance 
 of real property to trustees for the benefit of his wife, provided he 
 does not commit a frau^ upon his creditors. The device by which 
 a husband usually conveyed land to his wife at common law was 
 by conveying it to some third person, and having him convey to 
 the wife. Such conveyances are valid. '^ By a similar circuity, 
 a wife could convey her land to her husband. While she could 
 not convey to him directly, either by executing the conveyance 
 alone or by joining with him in a conveyance, they could accom- 
 plish the purpose by joining in a conveyance to a third person, and 
 having the grantee reconvey to the husband.'* In such cases the 
 wife must have acted freely, and not under coercion or undue in- 
 fluence by the husband.'^ There is no presumption of undue in- 
 fluence,'" but the court will scrutinize the transaction closely, and, 
 if any undue influence appears to have been exercised, set the 
 conveyances aside. 
 In Bquity 
 
 The rule in equity does not follow the common law. In some 
 cases a court of equity will recognize and enforce contracts and 
 conveyances entered into directly between husband and wife, 
 without the intervention of trustees. The general rule, as laid 
 down by the Vermont court, is that, whenever a contract would be 
 good at law if made with trustees for the wife, it will be sustained 
 in equity, though made without the intervention of trustees.''- So, 
 
 '5 Martin v. Martin, 1 Greenl. (Me.) 394. 
 
 76 White V. Wager, 25 N. Y. 328; Winans v. Peebles, 32 N. T. 423; Sims 
 V. Rickets, 35 Ind. 181, 9 Am. Hep., 679 ; Bailey v. Apperson, 134 Tenn. 716, 
 185 S. W. 710; Elder v. Elder, 256 Pa. 139, 100 Atl. 581; Scarborough v 
 Watkin^, 9 B. Mou. (Ky.) 540, 50 Am. Dec. 528. 
 
 7 7 Scarborough v. Watklns, 9 B. Mon. (Ky.) 540, 50 Am. Dec. 528. ' 
 
 7 8 Scarborough v. Watkins,'9 B. Mon. (Ky.) 540, 50 Am. Dec. 528; Young 
 v. Brown, 136 Tenn. 184, 188 S. W. 1149. ' 
 
 7 9 Jackson v. Stevens, 16 Johns. (N. T.) 110; Shepperson v. Shepperson 
 2 Grat. (Va.) 501. 
 
 80 Scarborough v. Watkins, 9 B. Mon. (Ky.) 540, 50 Am. Dec. 528. 
 
 «i Barron v. Barron, 24 Vt. 375. Aud see 2 Story, Eq. Jur. § 1372; 2 
 
§§ 88-90) POSTNUPTIAL SETTLEMENTS i 231 
 
 in equity, a gift or conveyance by the husban^ directly to the wrfe 
 will be upheld, in certain cases, by holding the husband as trustee 
 for the wife. Equity will uphold a clear, irrevocable gift by a hus- 
 band to his wife, either with or without the intervention of trus- 
 tees ; ^^ but the gift must be clear and complete. It is not sufficient 
 to show an intention to give, but the intention must have been 
 carried into effect. *^ 
 
 In the leading case of Wallingsford v. Allen,^* a husband and 
 wife having separated, and alimony having been decreed against 
 him, he gave her, in discharge thereof, certain personal property. 
 After her death he claimed the same. The court said, in rejecting 
 his claim : "Every feature of the agreement is an appeal to have 
 it tested by those principles of equity" which have been applied to 
 maintain a separate interest in women, acquired from their hus- 
 bands during coverture, whether the same were made by the inter,- 
 vention of trustees of not, when the transfer was fairly made, upon 
 a meritorious or valuable consideration. Agreements between hus- 
 
 Kent, Comm. 166 ; Shepard v. Shepard, 7 Johns. Ch. (N. T.) 57, 11 Am. Dec. 
 .396; Slanning v. Style, 3 P. Wms. 334; Arundell v. PMpps, 10 Ves. 146; 
 Wallingsford v. Allen, 10 Pet. 583, 9 L. Ed. 542; In re Hill (D. C.) 190 
 Fed. 390 ; Sims v. Rickets, 35 Ind. 181, 9 Am. Rep. 679 ; Livingston v. Living- 
 ston, 2 Johns. Ch. (N. Y.) 537; Maraman's Adm'r v. Maraman, 4 Mete. (ICy.) 
 88 ; Putnam v. Bicknell, 18 Wis. 333 ; Huber v. Hulier's Adm'r, 10 Ohio, 371 ; 
 Simmons v. McElwain, 26 Barb. (N. T.) 419; Wilder v. Brooks, 10 Minn. 50 
 (Gil. 32), 88 Am. Dec. 49; Stocket v. HolUday, 9 Md. 480; Bowie v. Stone- 
 htreet, 6 Md. 418, 61 Am. Dec. 318. While law courts will not enforce a 
 contract between husband and wife, equity will do so when the contract 
 is fair or for the benefit of the wife. McDonald v. Smith, 95 Ark. 523, 130 S. 
 W. 515; Brown v. Clark, 80 Conn. 419, 68 Atl. 1001; Lister v. Lister, 86 
 N. J. Eq. 30, 97 Atl. 170. 
 
 82Lewin, Trusts, 68; 2 Story, Eq. Jur. § 1375; Lucas v. Lucas, 1 Atk. 
 270; Hutchius v. Dixon, 11 Md. 29; Wallingsford v. Allen, 10 Pet. 583, 9 
 L. Ed. 542 ; McLean v. Longlands, 5 Ves. 78 ; Mews v. Mews, 15 Beav. 529 ; 
 Deming v. Williams, 26 Conn. 226, 68 Am. Dec. 386; Dilts v. Stevenson, 17 
 N. J. Eiq. 407 ; West v. Burke, 165 App. Div. 667, 151 N. T. Supp. 329, af- 
 firmed 219 N. Y. 7, 113 N. E. 561 ; Grant v. Grant, 34 Law J. Oh. 641. 
 
 ssCotteen v. Missing, 1 Madd. 176; Kekewich v. Manning, 1 De Gex, M. 
 & G. 188 : Jennings v. Davis, 31 Conn. 134 ; George v. Spencer, 2 Md. Ch. 
 353. In Grant v. Grant, 34 Law J. Ch. 641, it was held that delivery is 
 not necessary, for possession of the wife is that of her husband, and that 
 present words of gift, without any further act, are sufficient in equity to con- 
 stitute the husband trustee for the wife. But in Re Breton's Estate, 17 
 Ch. Div. 416, it was held that such a gift could not be supported ; that 
 this was an attempt to make a legal transfer, and therefore, under the 
 rule of Milroy v. Lord, 8 Jur. (N. S.) 809, it could not operate as a declara- 
 tion of trust. See, also, In re Pierce, 7 Biss. 426, Fed. Cas. No. 11,139. 
 
 84 10 Pet. 583, 9 L. Ed. 542. 
 
232 ANTENUPTIAL AJ?D POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 band and wife, during coverture, for the transfer from him of prop- 
 erty directly to the latter,, are undoubtedly void at law. Equity ex- 
 amines with great caution before it will confirm them. But it does 
 sustain theni when a clear and satisfactory case is made out that 
 the properjty is to be applied to the separate use of the wife. Where 
 the consideration for the transfer is a separate interest of the wife, 
 yielded up by her for the husband's benefit, or of their family, 
 or which has been appropriated by him to his uses; where the 
 husband is in a situation to inake 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." 
 
 Conveyances of real estate from the husband to the wife directly, 
 without the intervention of a trustee, though void at law, are up- 
 held in equity, as between the parties, where they are a just and 
 suitable provision for the wife.^° In an Indiana case it was said 
 in regard to conveyances of real estate, as was said by the Supreme 
 Court of the United States ^® in regard to gifts of personalty, that 
 "a direct conveyance from a husband to his wife will be sustained 
 and upheld in equity in either of the following cases, namely: 
 (1) Where the consideration of the transfer is a separate interest 
 of the wife, yielded up by her for the husband's benefit or that of 
 her family, or which has been appropriated by him to his uses; 
 
 SB Sims V. Rickets, 35 Ind. 181, 9 Am. Rep. 6*79; Shepard v. Shepard, 7 
 Johns. Ch. (N. Y.) 57, 11 Am. Dec. 396; Putnam v. Bicknell, 18 Wis. .S33; 
 Jones V. Clifton, 101 U. S. 225, 25 L. Ed. 908 ; Crooks v. Crooks, 84 Ohio St. 
 610, 615; Barron v. Barron, 24 Vt. 375; Waterman v. Higgins, 28 Fla. 660, 
 10 South. 97 ; In re Williams, 4 Boyce (Del.) 401, 88 Atl. 716 ; Thomas v. 
 Hornhrook, 259 111. 156, 102 N. E. 198; Currier v. Teske, 84 Neb. 60, 120 N. 
 W. 1015, 133 Am. St. Rep. 602; Williams v. Betts (Del. Ch.) 98 Atl. 371; 
 Huber v. Ruber's Adm'r, 10 Ohio, 371; Simmons v. McElwain, 26 Barb. 
 (N. y.) 419; Wilder v. Brooks, 10 Minn. 50 (Gil. 32), 88 Am. Dec. 49. Un- 
 dder the law of New Jersey, a transfer of property by a husband directly to 
 ;his wife, in repayment of advances made to him by her, while not good at 
 law, is enforceable in equity. English v. Brown (D. C.) 219 Fed. 248, judg- 
 ment modified 229 Fed. 34, 143 C. C. A. 336. A deed direct from husband 
 to wife, without the intervention of a trustee, made in good faith and not 
 In fraud of creditors, is valid both in law and equity, and passes full title. 
 ■Currier v. Teske, 84 Neb. 60, 120 N. W. 1015, 133 Am. St. Rep. 602, revers- 
 ing on rehearing 82 Neb. 315, 117 N. W. 712. A direct deed from a hus- 
 band to his wife executed before enactment of the married women's stat- 
 ute conveyed to her an equity which upon his death, under the statute of 
 uses, merged legal title of husband in her equity. Carson v. Berthold & 
 Jennings Lumber Co., 270 Mo. 238, 192 S. W. 1018. 
 fio Wallingsford v. Allen, 10 Pqt. 583, 9 L. Ed. 542. 
 
§§ 88-90) POSTNUPTIAL SETTLEMENTS 233 
 
 (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 and exclusive use of 
 his wife." *' Of course, if the transfer of personalty, or convey- 
 ance of realty, directly from husband to wife, is supported by a 
 valuable consideration, there is all the more reason for sustaining 
 it in equity.** 
 
 It has been held in New york that a conveyance directly from a 
 wife to her husband is not only void in law, but will not even be 
 sustained in equity.*' 
 
 Under Modern Statutes 
 
 In many states statutes removing the disabilities of married 
 women entirely or to a limited extent have greatly modified the 
 rules of the common law regarding contracts, gifts, and conveyanc- 
 es between husband and wife. Thus in many states a wife may 
 now contract with her husband as freelv as if unmarried, and in 
 jnost s tates she may contract with him with reference to her sepa- 
 rate pi-opert j^l" So, under statutes securing to married women 
 their rights in their separate property, gifts from the husband 
 to the wife '^ and from the wife to the husband "^ have been held 
 valid, though in some states the statutes place restrictions on gifts 
 between husband and wife.*' 
 
 87 Sims V. Rickets, 35 Ind. 181, 9 Am. Bep. 679. 
 
 88 Wallingsford v. Allen, 10 Pet. 583, 9 L. Ed. 542. 
 
 8 9 White V. Wager, 25 N. T. 328; Winans v. PeeWes, 32 N. T. 423. But 
 see Sims v. Rickets, 35 Ind. 181, 9 Am. Rep. 679. Equity scrutinizes a con- 
 veyance from wife to husband closely to ascertain whether It Is free from 
 fraud, but will not disturb a fair transaction. McDonald v. Smith, 95 Ark. 
 523, 130 S. W. 515. 
 
 9 See ante, p. 159. 
 
 »iBalster v. Cadick, 29 App. D. C. 405; Corbett v. Sloan, 52 Wash. 
 1, 99 Pac. 1D25; Sawyer v. Metters, 133 Wis. 350, 113 N. W. 682; ABbott 
 V. Fidelity Trust Co., 149 Mo. App. 511, 130 S. W. 1120; Bruce v. Bruce, 
 95 Ala. 563, 11 South. 197 ; Le Blanc v. Sayer?, 202 Mich. 565, 168 N. W. 445. 
 
 92 Fritz V. Fernandez, 45 Fla. 318, 34 South. 315 ; Sample v. Guyer, 143 
 Ala. 613, 42 South. 106; Hamilton v. Douglas, 46 N. Y. 218: Spradling 
 V. .Spradling, 101 Ark. 451, 142 S. W. 848; Third Nat. Bank v. Foe, 5 Ga. 
 App. 113, 62 S. E. 826; Rea v. Rea, 156 N. O. 529, 72 S. E. 573, 873. 
 While under Civ. Code Ga. 1010, § 3006, a wife cannot make contract of sale 
 of her separate estate to her husband, without approval by judge of superior 
 court of her domicile, yet she may make gift thereof to him. Rich v. Rich, 
 147 Ga. 488, 94 S. E. 566. 
 
 98 See statutes of various states. And see Brown v. Srown, 174 Mass.. 
 197, 54 N. E. 532, 75 Am. St. Rep. 292. 
 
234 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS ' (Ch. 6 
 
 In many jurisdictions either under express provisions of the stat- 
 ute or under the construction given to statutes conferring on mar- 
 ried women the power to contract and to control their property 
 as if unmarried, conveyances from the husband to the wife directly 
 and without the intervention of a trustee or third person are per- 
 mitted.** In some jurisdictions conveyances from the wife to the 
 husband have been recognized as valid,' ^ but in others because of 
 the requirement that the husband shall join in all conveyances 
 by the wife, a conveyance by the wife directly to the husband is not 
 valid.'" In view of the statutes, transfers of personal property 
 between husband and wife are generally held to be valid." 
 
 9 4 Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998; Kocb v. Sallee, 176 
 111. App. 379 ; Mardt v. Scharmaeh, 65 Misc. Kep. 124, 119 N. Y. Supp. 449 ; 
 Alferitz v. Arrivillaga, 143 Cal. 646, 77 Pac. 657; Fort v. Allen. 110 N. C. 
 183, 14 S. E. 685 ; Hoxie v. Price, 31 Wis. 82 ; Johnson v. Branch, 9 S. D. 116, 
 68 N. W. 173, 62 Am. St. Rep. 857 ; Crowley v. Savings Union Bank & Trust 
 Co., 30 Cal. App. 535, 159 Pac. 194 ; Brecheisen v. Clark, 103 Kan. 662, 176 
 Pac. 137; Bamsey v. Yount (Ind. App.) 120 N. B. 618. Such transfers are, 
 however, forbidden in Minnesota. Laird v. Vila, 93 Jlinn. 49, 100 N. W. 656, 
 106 Am. St. Rep. 420. Where husband conveyed property to wife to se- 
 cure family in a home, there being no understanding wife should hold for 
 his benefit solely, title vested absolutely in her as between herself and hus- 
 band. English V. English, 229 Mass. 11, 118 N. E. 178. 
 
 i9 5 0sborn v. Cooper, 131 Ala. 405, 21 South. 320, 59 Am. St. Rep. 117; 
 Brecheisen v. Clark, 103 Kan. 662; 176 Pac. 137; Haguewood v. Britain, 
 273 Mo. 89, 199 S. W. 950 ; Noel v. Fitzpatrick, 124 Ky. 787, 100 S. W. 321 ; 
 Despain v. Wagner, 163 111. 598, 45 N. E. 129 ; Savage v. Savage, 80 Me. 472, 
 15 Atl. 43; Lawshe v. Trenton Banking Co., 87 N. J. Eq. 56, 99 Atl. 617; 
 Baker v. Syfritt, 147 Iowa, 49, 125 N. W. 998 ; Smelser v. Meier, 271 Mo. 178, 
 196 S. W. 22 ; Osburn v. Throckmorton, 90 Va. 311, 18 S. E. 285. Under Civ. 
 Code Ga. 1910, § 3009, conveyance by wife to husband of her property with- 
 out being first allowed by order of superior court of her domicile is void. 
 Sikes V. Bradley, 20 Ga. App. 470, 93 S. E. 111. 
 
 ps Alexander v. Shalala, 228 Pa. 297, 77 Atl. 554, 31 L. R. A. (N. S.) 844, 
 139 Am. St. Rep. 1004, 20 Ann. Cas. 1330. Conveyance can be made only 
 by intervention of third person. McCord v. Bright, 44 Ind. App. 275, 87 
 N. E. 654; Brandau v. McCurley, 124 Md. 243, 92 Atl. 540, L. R. A. 19i5C, 
 767; Kellcy v. Dearman, 65 W. Va. 49, 63 S. E. 693. 
 
 97 Crowley v. Savings Union Bank & Trust Co., 30 Cal. App. 535, 159 Pac. 
 194 ; Buttler v. Farmers' Nat. Bank, 173 Iowa, 659, 155 N. W. 999 ; Pedrick 
 V. Kuemmell (N. J. Sup.) 65 Atl. 906 (construing Pennsylvania statute) ■ 
 Seymour v. Fellows, 77 N. Y. 178; Rinn v. Rhodes, 93 Ind. 389. 
 
§§ 91-92) POSTNUPTIAL SETTLEMENTS 235 
 
 SAME— AS AGAINST CREDITORS AND PURCHASERS 
 
 91. Postnuptial voluntary settlements, or gifts and conveyances be- 
 
 tween husband and wife, where the husband is indebted, 
 are held, as against existing creditors, under the statute 
 of 13 Eliz. c. 5, and similar statutes in this country, de- 
 claring conveyances of real estate and transfers of person- 
 al property void when made with intent to defraud credi- 
 tors, 
 
 (a) Conclusively fraudulent and void in_SQme states. 
 
 (b) Prima facie fraudulent "and void in England and in most 
 
 states. 
 
 92. Postnuptial and voluntary conveyances from husband to wife, 
 
 where the husband is indebted, are held, as against sub- 
 sequent purchasers, under the statute of 27 Eliz. c. 4, and 
 similar statutes in this country, declaring void as against 
 subsequent purchasers conveyances made with the inten- 
 tion of defeating themi, 
 
 (a) Conclusively fraudulent and void in England. 
 
 (b) Prima facie fraudulent and void in this country. 
 
 While gifts and conveyances between husband and wife may be 
 perfectly good in equity as between the parties themselves, they 
 may be inyalid as against creditors and purchasers. Postnuptial 
 settlements, or gifts and conveyances between husband and wife, 
 dififer from antenuptial settlements in the matter of consideration. 
 Antenuptial settlements are supported by the consideration of mar- 
 riage, but postnuptial settlements are not, for the marriage is past.^* 
 The consideration of marriage supports an antenuptial settlement 
 as against creditors and purchasers; but, as it is wanting in a 
 postnuptial settlement, such a settlement, unless it is supported by 
 some other valuable consideration, may be attacked as voluntary 
 and fraudulent, under the statutes of 13 and 27 Eliz. and similar 
 statutes enacted in this country. °° As we have seen,^ the stat- 
 
 8B Unger v. Mplllnger, 37 Ind. App. 639, 77 N. E. 814, 117 Am. St. Rep.. 
 348; Beverlin v. Casto, 62 W. Va. 158, 57 S. E. 411; Lloyd v. Fulton, 91 L\ 
 S. 479, 23 li. Ed. 363 ; CLOW v. BROWN, 37 Ind. App. 172, 72 N. E. 534, 
 Cooley Gas. Persons and Domestic Relations, 119. 
 
 "s CLOW V. BROWN, 37 Ind. App. 172, 72 N. E. 534, Cooley Cas. Persons and 
 Domestic Relations, 119. But an existing marriage relation is a valuable 
 and sufficient consideration to support a conveyance or settlement by a hus- 
 
 1 See note 1 on following page. 
 
236 ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS (Ch. 6 
 
 ute of 13 Eliz. c. 5, declares all conveyances and dispositions 6f 
 property, real or personal, made with intent to defraud creditors, 
 to be null and void as against them; and the statute of 27 Eliz. 
 c. 4, declares void, as against subsequent purchasers of the same 
 lands, tenements, or other hereditaments, all conveyances, etc., 
 made with the intention of defeating them, or containing a pow- 
 er of revocation. Both of these statutes contain provisos that noth- 
 ing therein contained shall defeat any estate or interest, made on 
 good consideration and bona fide, to any person not having at the 
 time notice of any fraudulent purpose. A voluntary settlement on 
 ilis wife, after marriage, by one who is indebted, has been held 
 in some of the states to be conclusively fraudulent as against ex- 
 isting creditors, regardless of the ' extent of the indebtedness or 
 the kmount of the settlement or the circumstances of the debtor.'' 
 This rule found support in the earlier English cases, where it was 
 said that all voluntary conveyances were fraudulent, excepting 
 "where the person making them is not indebted at the time." 3 
 In the later English cases, however, it is held that not every in- 
 debtedness will render a voluntary conveyance fraudulent;* that 
 being indebted is only one circumstance from which evidence of 
 the intention to defraud may be drawn ; ^ that, if a person owing 
 debts makes a settlement which subtracts from the property which 
 is the proper fund for the payment of those debts an amount 
 without which the debts cannot be paid, then the court may infer 
 that the settlor intended to delay his creditors." The prevailing 
 doctrine in this country is in accord with the later English cases, 
 namely, that a voluntary postnuptial settlement is only prima 
 facie fraudulent as against existing creditors, and that this pre- 
 sumption may be rebutted by showing that the settlement was 
 reasonable, and not disproportionate to the husband's means, tak- 
 ing into view his debts and situation, and that there was no intent, 
 
 band on his wife, If it does not affect the claims of creditors existing at the 
 time of the said conveyance or settlement. Indiana Match Co. v. Kirk, 118 
 111 App. 102. 
 
 lAnte, p. 221. 
 
 2 Reade v. Livingston, 3 Johns. Ch. (N, T.) 481, 8 Am. Dec. 520 ; Annin 
 V. Annin, 24 N. J. E<i. 184, 191. 
 
 " Russel V. Hammond, 1 Atk. 13. 
 
 4 Skarf V. Soulby, 1 Macn. & G. 374. 
 
 Richardson v. Smallwood, Jac. 552. 
 
 « Freeman v. Pope, 5 Oh. App. 538. See May, Fraud. Conv. 35, for a 
 full discussion of English cases. 
 
§§ 91-92) POSTNUPTIAL SETTLEMENTS 237 
 
 actual or constructive, to defraud creditors. '' While, in England, 
 a voluntary postnuptial settlement of real estate is held conclusive- 
 ly void as against a subsequent purchaser, even where he has notice 
 of the prior deed,' in this country it has been held that the sub- 
 sequent sale is only presumptive evidence of fraud.' Postnuptial 
 settlements made for a valuable consideration, like antenuptial set- 
 tlements which are supported by the consideration of marriage, fall 
 within the provisos of the statutes of 13 and 27 Eliz., which except 
 bona fide purchasers for value, and are therefore good as against 
 both creditors and subsequent purchasers, in favor of a wife tak- 
 ing innocently.^" 
 
 7 KeM V. Smith, 20 Wall. 31, 35, 22 L. Ed. 313 ; Leavitt v. Leavitt, 47 N. H. 
 329; Woolston's Appeal, 51 Pa. 452; Reynolds v. Lansford, 16 Tex. 287; 
 Wilson V. Buchanan, 7 Grat. (Va.) 334, 388. 
 
 8 Doe V. Manning, 9 East, 59 ; Evelyn v. Templar, 2 Brown, Oh. 148. 
 
 9 4 Kent, Comm. 464 ; Cathcart v. Robinson, 5 Pet. 280, 8 L. Ed. 120. 
 
 10 Ante, pp. 221,236; Macq. Hu^. & W. 279; Magniac v. Thompson, T 
 Pet. 348, 8 L. Ed. 709; Simmons v. McElwain, 26 Barb. (N. Y.) 419; BuUard 
 V. Briggs, 7 Pick. (Mass.) 533, 19 Am. Dec. 292. 
 
238 SEPARATION AND DIVORCE (Ch, 7 
 
 CHAPTER VII 
 
 SEPARATION AND DIVORCE 
 
 93-95. Agreements of Separation. 
 
 96. Divorce or Judicial Separation. 
 
 97, 98. Jurisdiction to Grant Divorce. 
 
 99-104. Grounds for Divorce. 
 
 99. Adultery. 
 
 100-102. Cruelty. 
 
 103. Desertion. 
 
 104. Miscellaneous Other Gitounds. 
 105-109. Defenses in Suits for Divorce. 
 
 105. Connivance. 
 
 106. Collusion. 
 107, 108. Condonation. 
 
 109. Recrimination. 
 
 110. Extraterritorial ^Effect of Divorce. ^ 
 
 111. Legislative Divorce. 
 '\ 
 
 AGREEMENTS OF SEPARATION 
 
 93. Agreements of separation between husband and wife are valid 
 
 if the separation has actually taken place at the time of 
 the agreement, or immediately follows it; but it is other- 
 wise if a future separation is contemplated. 
 
 94. The agreement to live separately will not be enforced, but only 
 
 the provisions for maintenance, and other collateral en- 
 gagements. 
 
 95. If the parties live together again, the agreement is rescinded, 
 
 and the parties restored to their full marital rights. 
 
 At one time the courts refused to countenance any agreement 
 between husband and wife to live separately, without regard to 
 whether the agreement contemplated an immediate separation or a 
 separation in the future, and without regard to the cause of the 
 separation. AH agreements for a separation were held void a s 
 aga inst public poli cy, because i n derogation of the ma rriage relation. 
 
 "This court," once said Lord btowell, "considers a private sepa- 
 ration as an illegal contract, implying a renunciation of stipulated 
 duties; a dereliction of those mutual offices which the parties are 
 not at liberty to desert; an assumption of a false character in both 
 parties, contrary to the real status personse, and to the obligations 
 
§ 93-95) AGREEMENTS OP SEPARATION 239 
 
 which both of them have contracted in the sight of God and man, 
 to Hve together ' till death do them part ,' and on which the solem- 
 nities both of civil society and of religion have stamped a binding 
 authority, from which the parties cannot release themselves by any 
 private act of their own, or for causes which the law itself has not 
 pronounced to be sufficient and sufficiently proved." ^ 
 
 There has, however, been a. complete change in the law in this 
 res pectTn England, and agreements to Tive se parately are sustain ed 
 by the English courts t o-day even to the extent of enforcing specific 
 performance of the agreement to live apart. ■ This was caiis ed by a 
 change in judicial ooimoh as to the dema"nds of public poli cy. As 
 was said by Jessel, M. R. :■ "A change came over judicial opin- 
 ion as to public policy. Other considerations arose, and people 
 began to think that, after all, it might be better and more be n eficia l 
 for married people to avo id in ma ny cases the expense and scandal 
 of suits of divorc e by settling their differences quietly by the a id 
 ot triends out of court, althou gh the conseq uences might be th at 
 they would live separately." ^ Since a married woman could, in a 
 suit for divorce, sue or detend in her own name, it was held that 
 she could compromsie such suit, and that, since she could compro- 
 mise a suit for divorce already instituted, she might compromise 
 the difference with her husband before the commencement of liti- 
 gation, by agreeing to live separately, on certain terms providing 
 for her maintenance and the custody of her children.^ 
 
 The courts in this country have taken the same view. It may be 
 laid down as a genera l rule that the courts will enforce covenants 
 or promises in agreement s o t separation relating to the maintenan ce 
 of the wife and other collateral engagements, provided the separ a- 
 tion has actually taken place at the time of the agree ment, or imme - 
 diately follows the agreement.* But an agreement having in view 
 
 t 
 
 1 Mortimer v. MortimeE, 2 Hagg. Const. 310. 
 
 2Besant v. Woocl, 12 Ch. IMv. 605; Wilson v.- Wilson, 1 H. L. Gas. 538; 
 Hunt V. Hunt, 4 De Gex, P. & J. 233 ; Marshall v. Marshall, 27 Wkly. Kep. 
 399; Hart v. Hart, 18 Ch. Div. 670. 
 
 3 Besant v. Wood, 12 Ch. Div. 605 ; McGregor v. McGregor, 20 Q. B. Div. 
 529. 
 
 1 Archbell v. Archbell, 158 N. C. 408, 74 S. E. 327, Ann. Oas. 1913D, 261 ; 
 EUett V. EUett, 157 N. 0. 161, 72 S. E. 861; 39 I^. R. A. (N. S.) 1185, Ann. 
 Cas. 1913B, 1215; In re Singer's Estate, 233 Pa. 55, 81 Atl. 898, Ann. Cas. 
 1913A, 1326 ; Amspolier v. Amspoker, 99 Neb. 122, 155 N. W. 602 ; Pryor v. 
 Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102; Sumner v. Sum- 
 ner, 121 Ga. 1, 48 S. E. 727; HIETT v. HIETT, 74 Neb. 96, 103 N. W. 1051; 
 
/ 
 
 / 
 
 240 SEPARATION AND DIVORCE / (Ch. 7 
 
 a separation in the future is altogether void, as against public pol- 
 icy, and it is immaterial whether they are made before or after 
 marriage, because they give inducements to the parties not to per- 
 form "duties in the fulfillment of which society has an interest." " 
 "The distinction," it has been said, "rests upon the following 
 ground : An_ agreement for an immediate separation is made to 
 meet a state of things which, however undesirable in itself, has" i n 
 fact become inevitable . Still, that state of things is abnormal, and 
 not to be contemplated beforehand. 'It is forbidden to provide 
 for the possible dissolution of the marriage contract, which the 
 policy of the law is to preserve intact and inviolate.' Or, in other 
 words, to allow validity to provisions for a future separation would 
 
 Cooley, Cas. Persons and Domestic Relations, 124; Elffray v. EfCray, 110 
 App. Dlv. M5, 97 N. Y. Supp. 2S6 ; Brancli v. Branch's Ex'r, 98 S. W. 1004, 
 30- Ky. r^w Eep. 417 ; Carson, v. MuiTay, 3 Paige (N. Y.) 483 ; Champlin v. 
 Champlin, Hoff. Ch. (N. Y.) 55 ; Calldns v. Long, 22 Barh. (N. Y.) 97 ; Pettit 
 V. Pettit, 107 N. Y. 677, 14 N. E. 500; Clark v. Fosdick, 118 N. Y. 7, 22 N. E. 
 1111, 6 L. R. A. 132, 16 Am. St. Rep. 733 ; Hutton v. BTutton's Adm'r, 3 Pa. 
 100; Hitner's Appeal, 54 Pa. 110; Appeal of Agnew (Pa.) 12 Atl. 160; Com. 
 V. Richards, 131 Pa. 209, 18 Atl. 1007 ; Button v. Button, 30 Ind. 452 ; Page 
 y. Trutant, 2 Mass. 159, 3 Am. Bee. 41 ; Fox v. Bavis, 113 Mass. 255, 18 Am. 
 Rep. 476; Randall v. Randall, 37 Mich. 563; Barnes v. Barnes, 104 K. C. 
 613, 10 S. E. 304 ; Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324 ; Carey v. 
 Mackey, 82 Me. 516, 20 Atl. 84, 9 L. E. A. 113, 17 Am. St. Rep. 500; Garver 
 V. Miller, 16 Ohio St. 527; Settle v. Wilson, 14 Ohio, 257; Thomas v. Brown, 
 10 Ohio St. 247 ; Loud v. Loud, 4 Bush. (Ky.) 453 ; Gaines' Adm'x v. Poor, 3 
 Mete. (Ky.) 503, 79 Am. Dec. 559 ; Wells v. Stout, 9 Cal. 479 ; McCiibbln v. 
 Patterson, 16 Md. 179; Robertson v. Robertson, 25 Iowa, 350; Walker 
 V. Walker's Ex'r, 9 Wall. 743, 19 L. Ed. 814 ; Switzer v. Switzer, 26 Grat. (Va.) 
 574; Harshberger's Adm'r v. Alger, 31 Grat. (Va.) 52. Separation agree- 
 ments will be enforced in equity only so far as it is just to enforce them. 
 Halstead v. Halstead, 74 N. J. Eq. 596, 70 Atl. 928. 
 
 6Hunt V. Hunt, 4 Be Gex, F. & J. 221. And see Clark, Cont 444, and cases 
 there cited ; Sumner v. Sumner, 121 Ga. 1, 48 S. E. 727 ; Hill v. Hill, 74 N. H. 
 288, 67 Atl. 406, 12 L. R. A. (N. S.) 848, 124 Am. St. Rep. 966 ; Boyd v. Boyd, 188 
 111. App. 136; Terkelsen v. Petersen, 216 Mass. 531, 104 N. E. 351; Winter v. 
 Winter, 191 N. Y. 462, 84 N. E. 382, 16 L. R. A. (N. S.) 710 ; Kaufman v. Kauf- 
 man, 158 /^pp. Biv. 892, 142 N. Y. Supp. 1048 ; Sayles v. Sayles, 21 N. H. 312, 
 53 Am. Bee. 208 ; Adams v. Adams, 2D Minn. 72 ; (Stokes v. Anderson, 118 Ind. 
 533, 21 N. B. 331, 4 L. R. A. 313 ; people v. Mercein, 8 Paige (N. Y.) 47, 68 ; 
 Randall v. Randall, 37 Mich. 563; Gaines' Adm'x v. Poor, 3 Mete. (Ky.) SOH, 
 79 Am. Dec. 559 ; Burant v. Titley, 7 Price, 577 ; St. John v. St. John, 11 
 Ves. 526 ; Jee v. Thurlow, 2 Barn. & 0. 547. In the Philippine Islands It Is 
 held that an agreement between husband and wife providing for a separa- 
 tion and division of property is void unless a provision permitting such a con- 
 tract is contained in the marriage contract. Quintana v. Lerma, 26 Phil. 
 Rep. 285. 
 
§ 96) DIVORCE OR JUDICIAL SEPARATION 241 
 
 be to allow the parties, in effect, to mak« the contract of marriage 
 determinable on conditions fixed beforehand by themselves." ° 
 
 It must be noted that, where the law does enforce an agreement 
 of separation, it does so only as to the provision as to maintenance 
 and other collateral engagements. The courts of this country, at 
 least, will not aid in carrying out such an agreement, in so far as it 
 relates solely to the parties living apart. As was said in a Pennsyl- 
 vania case : "When the parties have efifected the separation, equity 
 will control its incidents, and accomplish its lawful objects. It will 
 compel the husband to pay what he stipulated to pay for the rriain- 
 tenance of the wife, * * * but it will not decree a separa- 
 tion." ■• 
 
 Ah agreement of separation will be considered as rescinded if the 
 parties afterwards cohabit or live together as husband and wife, by 
 mutual consent, for ever so short a time.^ And in such an event all 
 the provisions of the agreement will cease to operate, and the par- 
 ties will be restored to all their marital rights to the same extent as 
 if no separation had ever taken place." ' 
 
 DIVORCE OR JUDICIAL SEPARATION 
 
 96. Divorce is the legal separation, of husband and wife by the judg- 
 ment of a court. There are two kinds : 
 
 (a) It may dissolve the marriage, in which case it is called a di- 
 
 vorce "a vinculo matrimonii." 
 
 (b) It may suspend the effect of the marriage only in so far as 
 
 cohabitation is concerned, in which case it is called a di- 
 vorce "a mensa et thoro." 
 
 ePol. Cont. 2S6. 
 
 7 Smith V. Knowles, 2 Graat, Gas. (Pa.) 413. And see Adams v. Adams, 32 
 Pa. Super. Ct. 853; McKennan v. Phillips, 6 Whart. (Pa.) 571, 37 Am. Dec. 
 438; Randall v. Randall, 37 Mich. 563; Collins v. Collins, 62 N. C. 153, 9« 
 Am. Dec. 606; McCrocUlin v. McCrocklin, 2 B. Mon. (Ky.) 370; Tourney v. 
 Sinclair, 3 How. (Miss.) 324; Rogers v. Rogers, 4 Paige (N. Y.) 516, 27 Am. 
 Dec. 84; Banner v. Banner, 184 Mo. App. 396, 171 S. W. 2; AspinwaU v 
 Aspiiiwall, 49 N. J. Eq. 802, 24 Atl. 926. 
 
 8 In re Miatteote's Estate, 59 Colo. 566, 151 Pac. 448 ; Boyd v. Boyd, 188 
 111. App. 136 ; Haile v. Hale, 40 Okl. 101, 135 Pac. 1143 ; Arehbell v. Arch- 
 bell, 158 N. O. 408, 74 S. B. 327, Ann. Cas. 1918D, 261. 
 
 9 See Carson v. Murray, 3 Paige (N. Y.) 483. But see Dennis v. Perkins, 88 
 Kan. 428, 129 Pac. 165,. 48 L. B. A. (N. S.) 1219, holding that resumption of 
 marital relations does not necessarily avoid the separation agreement in 
 toto, but only so far as the facts and circumstances show ian intent to 
 avoid it. 
 
 TIFF.P.& D.Rel.(3d Ed.)— 16 
 
242 SEPARATION AND DIVORCE (Ch. T 
 
 I n England the term "divorce" is now applied both to decrees of 
 nullity of marriage and decrees of dissolution. But in this country 
 the term is limited to decrees dissolving or suspending the effect of 
 a valid marriage. Divorce means "the legal separation of man and 
 wife, effected, for cause, by the judgment of a court, and either to- 
 tally dissolving the marriage relation, or suspending its effects so 
 far as concerns the cohabitation of the parties." ^" When the di- 
 vorce is a total dissolution of the marriage relation, it is called a 
 divorce "from the bond of marriage," or, in the Latin, "a vinculo 
 matrimonii." Such a divorce dissolves the marriage tie, and re- 
 leases the parties wholly from their matrimonial obligations." 
 When the divorce merely suspends the effect of the marriage as to 
 cohabitation, it is called a divorce from bed and board, or, in the 
 Latin, "a mensa et thoro." Such a divorce is partial or qualified. 
 The parties are separated and forbidden to live or cohabit together 
 again, but the marriage itself is not a,ffected.^^ 
 
 In South Carolina absolute divorce is unknown, and her courts 
 have jurisdiction to grant only divorces a mensa et thoro. '^^ 
 
 The marriage status is a matter of public interest,^* and the Leg- 
 islature may prescribe the grounds on which divorces may be 
 granted and such conditions and limitations on the right to divorce 
 as it deems public policy requires. ^^ In view of this interest of the 
 public, an action for divorce is not a mere controversy between 
 private parties ; but the state is interested as an adverse party so 
 far as to oppose the granting of a divorce unless a case is made 
 within the rules prescribed by the Legislature.^* As the state fa- 
 vors the continuity of the marriage relation,^ ^ public policy requires 
 that the marital relation shall not be severed without adequate 
 
 10 Black, Law Diet. tit. "Divorce." For othei' definitions, see Wbrds and 
 Phrases, vol. 3, p. 2149. 
 
 iiConnella v. Connella, 114 La. 950, 38 South. 690; Griswold v. Griswold, 
 23 Colo. App. 365, 129 Pac. 560. ^ 
 
 12 Freeman v. Beefer, 173 N. C. 581, 92 S. E. 486, L. R. A. 1917E, 886; 
 Evans v. Evans, 43 Minn. 31, 44 N. W. 524, 7 L. R. A. 448. 
 
 15 McCreerj' v. Davis, 44 S. C. 195, 22 S. E. 178, 28 L. R. A. 655, 51 Am. St. 
 Rep. 794. 
 
 14 Bairinger v. Dauernheim, 127 La. 679, 53 South. 923. 
 
 16 Franklin v. Franklin, 40 Mont. 348, 106 Pac. 353, 26 L. R. A. (N. S.) 490, 
 20 Ann. Gas. 339. 
 
 mRehfuss V. Rehfuss, 169 Oal. 86, 145 Pac. 1020; People v. Case, 241 111. 
 279, 89 N. E. 638, 25 L. R. A. (N. S.) 578 ; Grant v. Grant, 84 N. J. Eq. 81, 
 92 Atl. 791. 
 
 17 Lyon V. Lyon, 39 Okl. Ill, 134 Pac. 650. 
 
§§97-98) JURISDICTION TO GRANT DIVORCE 243 
 
 cause. ^* Divorces ma^ be granted only on legal grounds as pre- 
 scribed by statute.^" 
 
 JURISDICTION TO GRANT DIVORCE 
 
 97. In this country jurisdiction to entertain a suit for divorce is 
 
 entirely statutory ; but, when once conferred, it is exercised 
 as in the English ecclesiastical courts. 
 
 98. ELEMENTS OF JURISDICTION— Jurisdiction of proceed- 
 
 ings for a divorce is, in general, determined by the domi- 
 cile of the parties. 
 
 In England the only courts which had any jurisdiction to enter- 
 tain applications' for divorce were the ecclesiastical courts, and they 
 only granted divorces a mensa et thoro. i Courts of common law 
 and courts of. chancery had no jurisdiction at all in this respect.^" 
 In this country there is no tribunal having the jurisdiction of the 
 ecclesiastical courts. When the colonies and the states of the 
 Union adopted the common law of England they did not adopt the . 
 ecclesiastical law pertaining to marriage and divorce.^^ Our courts 
 have jurisdiction to grant divorces only when such jurisdiction 
 has been expressly conferred on them by statute. ^^ 
 
 An action for divorce, though a civil action, partakes of the 
 character of neither an action ex contractu nor an action ex de- 
 licto. ^^ It is neither an action at law nor a suit in equity in the 
 ordinary sense.^* Nevertheless, in exercising the jurisdiction con^ 
 f erred by statute, the courts are largely governed by the rules of 
 
 18 Devers v. Devers, 115 Va. .117, 79 S. E. 1048 ; TEENCHARD v. TRENCH- 
 ARD, S45 111. 313, 92 N. E. 243, Cooley Cas. Persons and Domestic Relations, 
 131 ; Rlndlaub v. Kindlaub, 19 N. D. 352, 125 N. W. 479. 
 
 isVoss V. Voss, 157 Wis. 430, 147 N. W. 634; Main v. Main, 168 Iowa, 
 353, 150 N. "W. 590; Ackerman v. Ackerman, 200 N. Y. 72, 93 N. E. 192. 
 
 2 Since the Judicature Act of 1S73 divorce causes are heard in the Pro; 
 bate, Divorce, and Admiralty Division of the High Court of Justice. 
 
 21 Cotter V. Cotter, 225 Fed. 471, 139 C. O. A. 453; Ackerman v. Ackennan, 
 200 N. y. 72, 93 N. E. 192. 
 
 22 Burtis V. Burtis, Hopk. Oh. (N. Y.) 557, 14 Am. Dec. 563 ; Anon., 24 N. 
 J. Eq. 19 ; Clzek v. Cizek, 76 Neb. 797, 107 N. W, 1012 ; Eumping v. Rumpiug, 
 36 Mont. 39, 91 Pac. 1057, 12 L. E. A. (N. S.) 1197,. 12 Ann. Cas. 1090; 
 Ackerman v. Ackerman, 200 N. T. 72, 93 N. E. 192; Judson v. Judson, 17 1 
 Mich. 185, 137 N. W. 103; Gilbert v. Hay ward, 37 R. I. 303, 93 Atl: 625; 
 Bodie V. Bates, 99 Neb. 253, 156 N. W. 8. 
 
 23 Cohen v. Cohen, 3 Boyce (Del.) 361, 84 Atl. 122. 
 
 24 People ex rel. Levine v. Shea, 201 N. Y. 471, 94 N. E. 1060. 
 
244 SBPAHATION AND DIVORCE (Ch. 7 
 
 the English ecclesiastical courts, except in so fair as that law has 
 been modified by statute; ^^and though a suit for divorce is not a 
 suit in equity, and therefore not within the ordinary jurisdiction 
 of a chancery court,^° yet, except as the procedure may be governed 
 by statute, the courts will apply the rul^s and principles of equity." 
 In the absence of statutory provisions to the contrary, jurisdic- 
 tion to grant divorce does not depend on the place where the mar- 
 riage took place,^* nor upon the place where the cause for divorce 
 arose. In some states it has been held that the court will not take 
 jurisdiction,- if the offense does not constitute a ground for divorce 
 in the state where it was committed, though it is a ground for di- 
 vorce in the state where action is brought.^" 
 
 Jurisdiction Dependent, on Domicile 
 
 It js a general rule that the jurisdiction n f prnrppding-s fnr a di- 
 vorce depends on the domicile of the parties . To give the co urt 
 jurisdiction at least -g n^ of t he parties must be do miciled in the 
 st ate or territory where the action is brought,^" and if neither party 
 
 25Cmmp V. Morgan, 38 N. C. 91, 9S, 40 Am. Dec. 447; Le Barron v. Le 
 Barron, 35 Vt. 365 ; Emerson v. Emerson, 120 Mfl. 584, 87 Atl. 1033 ; Wuest 
 V. Wuest, 17 Nev. 217, 30 Pac. 886: Williamson v. 'Wlilliamson, 1 Johns. Ch. 
 (N. Y.) 4SS, 491; Barrere f. Barrere, 4 Johns. Ch. (N. T.) 187, 195; Wood 
 V. Wood, 2 Paige (N. Y.) 108 ; Devanbagh v. Devanbagh. 5 Paige (N. Y.) 554, 
 28 Am. Dec. 443 : Burr v. Burr, 10 Paige (N. Y.) 20 ; Griffin v. Griffin, 47 N. Y. 
 137. 
 
 20 Emerson v. Emerson, 120 Md. 584, 87 Atl. 1033 ; Martin v. Martin, 173 
 Ala. 106, 55 South. 632; Judson v. Judson, 171 Mich. 185, 137 N. W. 103; 
 Bodie V. Bates, 99 Neb. 253', 156 N. W. 8. 
 
 27 People ex rel. I-evine v. Shea, 201 N. Y. 471, 94 N. E. 1060; Johannessen 
 V. Johannessen, 70 Misc. Eep. 361, 128 N. Y. Supp. 892; Stone v. Duffy, 219 
 Mass. 178, 106 N. E. 595. 
 
 2 8 Ddtson_vJ2Jtson, 4 B. I. 87; Bierstadt v. Blerstadt, 29 App. Dlv. 210, 
 51 N. Y. Supp. 862; Frledrieh v. Friedrlch, 230 Mass. 59, 119 N. E. 449; 
 Barber v. Barber, 89 Misc. Eep. 519, 151 ISI. Y. Supp. 1064; Jones v. Jones, 
 .67 Miss. 195, 6 South. 712, 19 Am. St. Eep. 299; Adams v. Adams, 101 Md. 
 506, 61 Atl. 628 ; Eose v. Eose, 132 Minn. 340, 156 N. W. 664 ; Duke v. Duke, 
 70 N. J. Eq. 135, 62 Atl. 466; Harteau v. Harteau, 31 Mass. (14 Pick.) 181, 
 25 Am. Dec. 372; Walker v. Walker, 111 Me. 404, 89 Atl. 373. A complaint 
 for divorce presupposes the existence of a marriage between the parties 
 litigant. Santos v. Sweeney, 4 Phil. Eep. 79. 
 
 2 8 Pope V. Pope, 161 Ky. 104, 170 S. W. 504; Harteau v. Harteau, 31 Mass. 
 (14, Pick.) 181, 25 Am. Dec. 372. And see Andrews v. Andrews, 188 U. S. 14, 23 
 Sup. Ct. 237, 47 L. Ed. 366. But see Blakeslee v. Blakeslee, 41 Nev. 235, 168 
 Pac. 950. 
 
 3 Van Fossen v. State, 37 Ohio St. 317, 41 Am. Eep. 507; W,atklns v. Wat- 
 kins, 125 Ind. 163, 25 N. E. 175, 21 Am. St. Eep. 217. 
 
§§ 97-98) JTJEISDICTION TO GRANT DIVORCE 243 
 
 is domiciled in the stafp thp r.niirt has in fact_ji o jurisdicti on." 
 Generally the statutes of the various states provide that the plain- 
 tiff must be domiciled in the' state/ =" and the mere fact that the 
 domicile was acquired for the purpose of obtaining a divorce does 
 not affect the jurisdiction.'^ Of course, if both parties have their 
 domicile in the state where action is brought, the jurisdiction of 
 that state is complete as to both the subject-matter and the par- 
 ties.=* 
 
 As has been pointed out elsewhere, the domicile of the wife is 
 generally the same as that of the husband ; =° consequently, if the 
 wife is separated from the husband for her fault, her domicile is 
 still the same as his, and the court, in an action for divorce brought 
 by the husband in the state of his domicile, has jurisdiction of both 
 parties.'" But it is well settled that, for the purpose of divorce, 
 ■an injured and innocent wife may acquire a domicile separate from 
 
 31 House V. House, 25 Ga. 473; Keil v. Keil, 80 Neb. 496, 114 N. W. 570; 
 State V. Armington, 25 Minn. 29 ; Dltson v. D itson, 4 E. I. 87. It has, how- 
 ever, been held in some cases that.lf the parttes^TOlimfaniy submitted them- 
 selves to the jurisdiction, they (but not third persons) are thereafter estopped 
 to deny the court's jurisdiction. In re Ellis' Estate, 55 M5nn. 401, 56 N. W. 
 1056, 23 I/. R. A. 287, 43 Am. St. Rep. 514 ; Kinnier v. Kinnier, 45 N. Y. 535, 
 « Am. Rep. 132; Starbuck v. Starbuck, 173 N. T. 503, 66 N. B. 193, 93 Am. 
 St. Rep. 631. 
 
 32 See the statutes of the various states. And see Carey ^. Carey, 5 Boyce 
 (Del.) 53, 90 Atl. 405; Howell v. Heriff, 87 Kan. 389, 124 Pac. 168, Ann. 
 Gas. 1913E, 429; La Route v. La Route, 210 Mass. 319, 96 N. B. 675 ; Bradfleld 
 v.Bradfield, 154 Mich. 115, 117 N. W. 588, 129 Am. St. Rep, 468; Rumping 
 V. Rumping, 36 Mont. 39. 91 Pac. 1057, 12 L. R. A. (N. S.) 1197, 12 Ann. Cas. 
 1090 ; Ackerman v. Ackerman, 200 N. T. 72, 93 N. E. 192 ; Walker "v. Walker, 
 32 R. I. 28, 78 Atl. 339 ; Duxstad v. Duxstad, 17 Wiyo. 411, 100 Pac. 112, 129 
 Am. St. Rep. 1138. But see Fitzpatrick v. Fitzpatrick, 131 Tenn. 54, 173 S. 
 W. 444. The word "residence," as used in statutes prescribing residence in 
 the state for a certain period toi give jurisdiction In divorce, is synonymous 
 with "domicile." Miller v. Miller, 88 Vt. 134, 92 Atl. 9, L. R.' A. 1915D, 852 ; 
 Connolly v. Connolly, 33 S. D. 346, 146 N. W. 581. 
 
 S3 Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 Atl. 684, Ann. Cas. 1916B, 
 920. But mere physical pr'esence in the state does not constitute such resi- 
 dence or domicile as will confer jurisdiction. Presson v. Presson, 38 Nev. 
 203, 147 Pac. 1681; Halpine v, Halpine, 52 Pa. Super. Ct. 80. \ 
 
 aiMcGill v. Iteming, 44 Ohio St. 645, 11 N. B. 118; Cheely v. Clayton, 110 
 U. S. 701, 4 Sup. Ct. 328, 28 L. Ed. 298. 
 
 3 5 Ante, p. 88. 
 
 soLoker v. Gerald, 157 Mass. 42, 31 N. E. 709, 16 L. R. A. 497, 34 Aip. St. 
 Rep. 252 ; Burlen v. Shannon, 115 Mass. 488 ; Hood v. Hood, 110 Mass. 463 ; 
 Hunt V. Hunt, 72 N. Y. 217, 28 Am. Rep. 129; Matter of Morrison (In re 
 Feyh's Estate) 52 Hun, 102, 5 N. Y. Supp. 90; Post v. Post, 55 Misc. Rep. 53S, 
 105 N. Y. Supp. 910. 
 
246 SEPARATION AND DIVORCE (Ch. 7 ' 
 
 that of the husband ;" and, on the other hand, the husband can- 
 not by his own acts prevent the wife from adopting or maintaining 
 the same domicile as his for the purposes of jurisdiction of divorce 
 proceedings.^* So, too, if the husband, for the purpose of obtain- 
 ing a divorce, removes to and acquires a domicile in another state, 
 the domicile of the innocent wife will not necessarily follow his, 
 but will remain in the state-where she actually resides.^'' 
 
 This phase of the' question of jurisdiction has been well illustrated 
 by two cases decided by the Supreme Court of the United States. 
 In Atherton v. Atherton *" the matrimonial domicile of the parties, 
 was in Kentucky. The wife abandoned the domicile, taking up her 
 residence in New York ; the- husband remaining in Kentucky. He 
 obtained a divorce there on the ground of E^bandonment ; construe 
 five service being made on the wife in the manner prescribed by 
 the law of Kentucky. The court held that the domicile of the par- 
 ties, for the purposes of the suit, was in Kentucky,*^ and that the 
 Kentucky court had complete jurisdiction. In Haddock v. Had- 
 dock *^ the matrimonial, domicile of the parties was in New York. 
 
 a^Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200; Shaw v. Shaw, 98 
 Mass. 158 ; Smith v. Smith, 4.3 La, Ann. 1140, 10 South. 248 ; Cheever v. Wil- 
 son, 76 U. S. (9 Wall.) 108, 19 L. Ed. 604; Sneed v. Sneed, 14 Ariz. 17, 123- 
 Pac. 312, 40 L. R. A. (N. S.) 99 ; Brown v. Brown, 164 111. App. 589 ; Ensign 
 V. Ensign, 54 Misc. Eep. 289, 105 N. Y. Supp. 917, affirmed 120 App. Div. 882, 
 105 N. Y. Supp. 1114; Miller v. Miller, (67 Or. 359, 136 Pac. 15; Carty v.. 
 Carty, 70 W. Va. 146, 73 S. E. 310, 38 L. E, A. (N. S.) 297 ; Harding v. Alden, 
 9 Me. {b Greenl.) 140, 23 Am. Dec. 549; Hanberry v. Hanberry, 29 Ala. 719; 
 Hibbert v. Hibbert, 72 N. J. Eq. 778, 65 Atl. 1028; Ransom v. Ransom, 54 
 Misc. Rep. 410, 104 N. T. Supp. 198. 
 
 S.S Ensign v. Ensign, 54 Misc. Rep. 289, 105 N. Y. Supp. 917, affii-med in 120 
 App. Div. 882, 105 N. Y. Supp. 1114; Hibbert v. Hibbert, 72 N. J. Eq. 778, 
 65 Atl. 1028 ; State ex rel. Aldraeh v. Morse, 31 Utah, 213, 87 Pac. 705, 7 L. R. 
 A. (N. S.) 1127. Where the husband left the state to avoid a criminal charge 
 the wife's domicile was not changed. Ackerman v. Ackerman, 200 N. Y. 72, 
 93 N. E. 192. 
 
 39Vischer v. Vischer, 12 Barb. (N. Y.) 640; Heath v. Heath, 42 La. Ann. 
 437, 7 South. 540; Woolworth v. Woolworth, 115 App. Div. 405, 100 N. Y. 
 Supp. 865. 
 
 ■to 181 TJ. S. 155, 21 Sup. Qt. 544, 45 L. Eid. 794, 1:eversing 155 N. Y. 129, 49 
 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650. 
 
 41 It is to be observed, however, that according to the views of Mr. Justice 
 Peckham, who dissented from the decision of the court, the wife was justified 
 in leaving the husband, so that she obtained a new domicile lr( New York; 
 and this seems also to be the view taken by the New York court. Atherton 
 v. Atherton, 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650. 
 In this connection see, also, Post v. Post, 55 Misc. Eep. 538, 105 N. Y. Supp. 
 910; Matter of Morrison (In re Peyh's Estate) 52 Hun. 102, ') N. Y. Supp 90 
 
 " HADDOCK v. HADDOCK, 201 U. S. 562, 20 Sup. Ct. 525, 50 L. Ed. 867, 5 
 
§ 99) GEOUNDS FOB DIVORCE 247 
 
 The husbatid abandoned the wife and subsequently acquired a dom- 
 icile in Connecticut; the wife remaining in New York. The hus- 
 band obtained a divorce in Connecticut ; constructive service being 
 made on the wife as prescribed by the law of Connecticut. The 
 court held th at the domicile of the wife d id not in such case follow 
 JEEe^husb and,^" and, following the New York rule, that t}ie Con-_ 
 necti cut court acquired no jurisdiction over her to grant a divor ce.'''* 
 
 GROUNDS FOR DIVORCE— ADULTERY 
 
 99. Adultery is the voluntary intercourse of a married person with 
 another than his or her wife or husband, and is jdmost uni- 
 versally made a ground of divorce. 
 
 As has been seen, prior to 1858, in England, it was only the eccle- 
 siastical courts which had jurisdiction to grant .divorces. These 
 courts granted divorces on the ground of adultery, but the divorce 
 was only a mensa et thoro. The only way in which a divorce a 
 vinculo matrimonii could be obtained was, in Catholic England, by 
 dispensation from the Pope, and later, in Protestant England, by 
 a' bill in Parliament. So, in this country, the only way in which a 
 divorce a vinculo could be obtained, even on the ground of adultery, 
 was by recourse to the Legislature. There are now in England, 
 and in most of our states, statutes making adultery a ground for 
 an. absolute divorce a vinculo matrimonii. Thoug'h to some extent 
 it " otherwise in England, the statutes in this country do not, as a 
 rule, make any distinction in this respect between the rights of the 
 husband and tHose of the wife. The same acts of adultery which, 
 when committed by the wife, would entitle the husband to a di- 
 vorce, will eiititle the wife to a divorce if committed by the hus- 
 band. The/statutes are not the same in all the states. In some 
 stated a single act of adultery is ground for a divorce, while in 
 
 Ann. Cas. 1, Cooley Cas. Persons and Domestic Relations, 144, affirming 178 
 N. Y. 557,/ 70 N. B. 1099. 
 
 *3 In tms connection the case of State ex rel. Aldrach v. Morse, 31 Utah, 
 213, S7 P.ac. 705, 7 L. R. A. (N. S.) 1127, Is of Interest. In this case, on an 
 applieat|;^n for mandamus to compel the district court to proceed with the 
 trial of /a suit for divorce, it was held that the husband cannot, by abandon- 
 ing the/ wife and going into another state to reside, change the matrimonial 
 domicile, so that the court would not have jurisdiction of a suit for divorce 
 brougbt by the wife in the state of the matrimonial domicile. 
 
 1* lExtraterritorial effect of divorce, see post, p. 287. 
 
248 SEPAEATION AND DIVORCE (Ch. 7 
 
 Others there must be- a "living in adultery," *" and in others the 
 adultery must be accompanied by cruelty, desertion, or other ag- 
 gravating circumstances.*" 
 
 Adultery consists in the voluntary sexual intercourse of a mar- 
 ried person with another than his or her wife or husband, whether 
 the other party to the intercourse is married or single. Sexual in- 
 tercourse under coercion, as in the case of rape " or during in- 
 sanity,** is not adultery, because it, is not voluntary. Mistake of 
 fact may prevent an act of intercourse from being adultery; as 
 where a woman has intercourse with a man under the belief that 
 he is her husband, or where she has married the person with whom 
 slje has intercourse under the belief that her husband was dead.*' 
 Mistake of law, however, is no defense. Belief in the right to have 
 more than one wife would not prevent the intercourse with the 
 latter from being adulterous. °'' And intercourse after a second mar- 
 riage, when a divorce from a prior marriage is illegal is adultery,, 
 and ground for a divorce from the prior marriage, though there was 
 a bona fide belief in the validity of the divorce.^^ 
 
 *tiPrendergast v. Prendergast, 146 N. C. 225, 59 S. E. 692, construing ile- 
 visal 1905, § 3350. 
 
 *6 Stewart v. Stewart, 105 Mfl. 297, 66 Atl. 16. 
 
 47 People V. Chapman, 62 Mich. 280, 28 N. Wl 896, 4 Am. St. Rep. 857. Since 
 adultery is voluntary sfexual intercourse of a married person with one noc 
 the husband or wife of such person, a wife may have a divorce for adultery 
 If her husband commits a rape on another woman. Johnson v. Johnson, 78 
 N. J. Eq. 507, 80 Atl. 119.- 
 
 *8 Nichols V. Nichols, 31 Vt. 328, 73 Am. Dec. 352; Broadstreet v. Broad- 
 street,. 7 Mass. 474 ; Wray v. WTay, 19 Ala. 522 ; Id., 33 Ala. 187 ; Mims v. 
 Mims, 33 Ala. 98. B\it see Matehin v. Matchin, 6 Pa. 332, 47 Am. Dec. 466. 
 
 i» Ayl. Par. 226 ; Valleau v. Valleau, 6 Paige (N. Y.) 207. Of course, this 
 does not apply if the intercourse under the second mai-riage is continued 
 after knowledge that the first spouse is still living. Mathewson v. Mathew- 
 son, 18 E. I. 456, 28 Atl. 801, 49 Am. St. Rep. 782. 
 
 50 See Reynolds v. IT. H., 98 U. S. 145, 25 L. Ed. 244. 
 
 81 Stmonds v. Si^onds, 103 Mass. 572, 4 Am. Rep. 576 ; Leith v. Lelth, 39 
 N. H. 20 ; Ackerman v. Aekerman, 200 N. Y. 72, 93 N. B. 192 ; McGifCert v. 
 McGifeert, 31 Barb. (N. Y.) 69. See Palmer v. Palmer, 1 Swab. & T. 551. 
 
§§ 100-102) GROUNDS FOR DIVORCE 249 
 
 SAME— CRUELTY 
 
 100. Cruelty is made a ground of divorce in most states by statute. 
 
 The statutes use various terms, as "extreme cruelty," "in- 
 tolerable cruelty," "cruel and inhuman conduct," conduc t 
 rendering it "unsafe and improper" for the partiVs *" <•-"- 
 habit, etc. 
 
 101. The general rule is that conduct to come within the statutes 
 
 must consist in the infliction, or threatened iniiiction, of 
 bodily harm.^ This may be 
 
 (a) By personal violence, either actual or threatened and reasoii- 
 
 ably apprehended. 
 
 (b) By words or conduct, without personal violence, causing 
 
 mental suffering, and thereby injuring, or threatening to 
 injure, the health. 
 
 102. In some states falsely charging a wife with adultery is held to ' 
 
 be cruelty, though unaccompanied by bodily harm ; and in 
 a few states it is held generally that bodily injury is not 
 necessary. 
 
 In most states, by statute, cruelty is made a ground, for divorce 
 a vinculo matrimonii or a mensa et there. In some it is ground for 
 divorce a mensa et thoro only. Various expressions are found in 
 the statutes of the different states, but they are held to mean sub- 
 stantially the same thing. These expressions are, in most states, 
 "extreme cruelty"; in some, "repeated cruelty"; in others "cruel 
 or abusive treatment," "cruel and inhuman treatment, whethef 
 practiced by using personal violence or other means," "cruel treat- 
 ment, outrages, or excesses, so as to render their living together in- 
 supportable," "cruel and inhuman treatment, or personal indigni- 
 ties, rendering life burdensome," ^^ "intolerable severity," "^uch 
 conduct on the part of the defendant towards the plaintiff as may 
 render it unsafe and improper for the former to, cohabit with the lat- 
 ter." In some states it is declared that "cruelty," within the mean- 
 ing of the statute, must consist of |)ersonal violence. In others it 
 is defined to be "the infliction of grievous bodily injury or grievous 
 
 52 Simon V. Simon, 34 Pa. Super. Ct. 182, holding that the communication 
 of a loathsome disease by a husband to a wife is such an indignity to ber 
 person, rendering "her condition intolerable and life burdensome," as will 
 ■entitle her to a divorce. 
 
250 SEPARATION AND DIVORCE (Ch. T 
 
 mental suffering." In others it is declared that the treatment must 
 be such as to injure health or endanger reason ;^^ in others, so 
 cruel as to endanger life. , 
 
 It was originally the general rule, due perhaps to the peculiar 
 wording of the statutes, that cruelty, to be a ground of divorce, 
 must consist of physical cruelty, either direct or consequential, 
 without personal violence, and this doctrine persists in some 
 states.^* But as will presently appear this rule has been greatly 
 relaxed in most jurisdictions, a nd the infliction of mental suffering 
 is recognized as a form of cr uelty a s well as physical violence." ^ 
 
 It is generally conceded that, in order to constitute cruelty, direct 
 actual violence is not necessary.^" Any conduct which is attended 
 with bodily harm, and which renders it impossible or unsafe to dis- 
 charge the duties of married life, may constitute cruelty as fully 
 as direct violence.^' The test is w hether, under ther ircumstance s 
 
 . B3 See Robinson v. Robinson, 66 N. H. 600, 23 Atl. 362, 15 L. R. A. 121, 49 
 Am. St. Rep. 632 ; RADER v. RADER, 136 Iowa, 223, 113 N. W. 817, Cooley 
 Cas. Persons and Domestic Relations, 133. 
 
 5^ Whitlocli V. Wbitlock, 268 111. 218, 109 N. E. 6, reversing 187 111. App. 
 16.5 ; Casey v. Casey, 83 N. J. Eq. 603, 93 Atl. 720 ; TRENCHARD v. TRBN- 
 CHARD, 245 111. 318, 92 N. E. 243, Cooley Cas. Persons and Domestic Rela- 
 tions, 131. 
 
 5 5 See post, p. 252. 
 
 «*• RADER V. RADER, 136 Jowa, 223, 113 N. W. 817, Cooley Cas. Persons and 
 Domestic Relations, 133; Luettjohann v. Luettjoliann, 147 Iowa, 286, 126 
 N. W. 172 ; Root v. Root, 164 Mich. 638, 130 N. W. 194, 32 L. R. A. (N. S.) 
 837, Ann. Cas. 1912B, 740; Carr v. Carr, 171 Ala. 600, 55 Soutb. 96; Miller 
 V. Miller, 89 Neb. 239, 131 N. W. 203, 34 L. R. A. (N. S.) 360; Thompson v. 
 Thompson, 32 N. D. 530, 156 N. W. 492 ; Lyon v. Lyon, 39 Okl. Ill, 134 Pac. 
 650. 
 
 5 7 Brown v. Brown, 129 Ga. 246, 58 S. E. 825; Williams v. Williams, 101 
 .Minn. 400, 112 N. W. 528 ; Carr v. Carr, 171 Ala. 600, 55 South. 96 ; Humber 
 V. Humber, 109 Miss. 216, 68 South. 161; Knapp v. Kniipp, 23 Cal. App. 
 10, 136 Pac. 719. It is cruelty in a husband to refuise his wife the necessaries 
 of life when it is in his power to supply them. Dysart v. Dysart, 1 Rob. Ecc. 
 106, 111, 125; Smedley v. Smedley, 30 Ala. 714; AYhitacre v. Whltacre, 64 
 Mich. 232, 31 N. W. 327 ; Eastes v. Eastes, 79 Ind. 363 ; Butler v. Butler, 1 
 Pars. Eq. Cas. (Pa.) 329. It is cruelty to subject unnecessarily the wife to 
 conditions imposing great hardship and privation as by lack of proper sup- 
 port. RADER V. RADER, 136 Iowa, 223, 113 N. W. 817, Cooley Cas. Persons 
 and Domestic Relations, 133 ; Dean v. Dean, 181 Mich. 498, 148 N. W. 179. 
 It is cruelty for a husband to have intercourse with his wife when he kno\YS- 
 that he has a venereal diseas5, and infect her with it, and vice versa. 
 CoUett v. Collett. 1 Curt. Ecc. 678; Anon., 17 Abb. N. C. (N. Y.) 231; 
 Carba.ial v. Fernandez, 130 La. 812, 58 South. 581; Rehart v. Rehart 
 (Or.) 25 Pac. 775. So where a husband compels his wife to submit to 
 excessive sexual intercourse, with knowledge of injury to her health. 
 Muyhew v. Mayhew, 6L Conn. 233, 23 Atl. 966, 29 Am. St Rep. 195; Shaw 
 
§§ 100-102) GROUNDS FOR DIVORCE 251 
 
 and cond itions s hown to exist, the complainant could with safety to 
 person and hea lth rnnti nup tn livp with defendant. °^ Threats of 
 violence made in earnest, and which indicate an intention to do 
 bodily harm, are sufficient. " The court is not to wait till the hu rt 
 is actually don e." "" On the other hand, mere threats not intended 
 to be carried out, and not furnishing reasonable grounds for appre- 
 hension of bodily injury, are insufficient."" What must be the ex- 
 tent of the violence offered, or what will reasonably excite appre- 
 hension, will depend upon the circumstances of each case. The st a- 
 tion in life and situation of the parties and all the attendant circum - 
 st ances will be taken into consideration. A. blow between parties in 
 t he lower conditions and in the highest stations of life has a ve rv 
 different aspect.®^ A single act of cruelty may be so severe as to 
 
 V. Shaw, 17 Conn. ISO ; Youngs v. Youngs, 33 111. App. 223 ; Grant v. Grant, 
 53 Minn. 181, 54 N. W. 1059. The denial of intercourse is not cruelty on the 
 part of either the husband or the wife. D'Aguilar v. D'Aguilar, 1 Hagg. Ecc. 
 773 ; Cousen v. Cousen, 4 Swab. & T. 164 ; Cowles v. Cowles, 112 Mass. 298 ; Loh- 
 muller v. Lohmuller (Tex. Civ. App.) 135 S. W . 751 ; Pinnebad v. Pinnebad, 134 
 Ga. 496, 68 S. E. 73 ; Magill v. Magill, 3 Pltsb. R. (Pa.) 25 ; Johnson v. John- 
 son, 31 Pa. Super. Ct. 53. But see Campbell v. Campbell, 149 Mich. 147, 112 N. 
 W. 481, 14 Detroit Leg. N. 284, 119 Am. St. Rep. 660. Where a husband had 
 compelled his wife to submit to two abortions, and insisted that she should 
 submit to a third and that she should bear no children, as a condition to the 
 continuance of the marital relation, such conduct constituted extreme cruel- 
 ty, entitling the wife to a divorce. Dunn v. Dunn, 150 Mich. 476, 114 N. W. 
 385, 14 Detroit Leg. X. 767. And see Sheldon v. Sheldon, 146 App.^ Div. 430, 
 131 N. Y. Supp. 291. 
 5 ''Maxwell v. Maxwell, 69 W. Ya. 414, 71 S. E. 571. 
 
 5 9 Evans v. Evans, 1 Hagg. Const. 35; Oliver v. Oliver, Id. 361, 364; Myt- 
 ton V. Mytton, 11 Prob. Div. 141 ; Bailey v. Bailey, 97 Mass. 373 ; Beebe v. 
 Beebe, 10 Iowa, 133; Rhame v. Rhame, 1 McCord Eq. (S. C.) 197, 16 Am. 
 Dec. 597; 'Whlspell v. Whispell, 4 Barb. (N. Y.) 217; Kennedy v. Kennedy, 
 60 How. Prac. (N. Y.) 151; Id., 73 N. Y. 369; Graecen v. Graecen, 2 N. J. Eq. 
 459 ; Hughes v. Hughes, 19 Ala. .307 ; Freeman v. Freeman, 31 Wis. 235 ; 
 Harratt v. Harratt, 7 N. H. 196, 26 Am. Dec. 730 ; Griffith v. Griffith, 77 Neb. 
 180, 108 N. W. 981 ; Beekman v. Beekman, 53 Fla. 858, 43 South. 923 ; Wil- 
 liams V. Williams, 101 Minn. 400, 112 N. W. 528. In this case it was also 
 held that repeated charges made by the wife against the husband, not shown 
 to have been based on reasonable cause, published by her for many years in 
 private and public, rendering him a subject of discussion and ridicule, re- 
 sulting in injury to his business and in the practical separation of the par- 
 ties, constitute cruel and inhuman treatment, entitling the husband to a 
 divorce. 
 
 6 Evans v. Evans, 1 Hagg. Const. 35; Bshbaeh v. Eshbach, 23 Pa. 343; 
 Close V. Close, 24 N. J. Eq. 338; Shell v. Shell, 2 Sneed (Tenn.) 716; Coursey 
 V. Coursey, 60 111. 186; Ramsey v. Ramsey, 162 Ky. 741, 172 S. W. 1082; 
 Uhlmann v. Uhlmann, 17 Abb. N. C. (N. Y.) 236. 
 
 61 Evans v. Evans, 1 Hagg. Const. 35; Westmeath v. Westmeath, 2 Hagg. 
 
•252 SEPARATION AND DIVOECE (Ch. T 
 
 justify a divorce on the ground of cruelty/^ but, as a rule, it is not 
 sufficient."* A single act committed in a sudden passion might not 
 constitute cruelty, when the same act committed as the result of a 
 deliberate, fixed intention to abuse woufd suffice.'* 
 
 There are some cases which apparently recognize as a ground of 
 divorce, under thte statutes, mere m en tal suffering caused b.3 L_abu- 
 s ive or unkind treatment."" And in several states, where the courts 
 do not recognize such a ground generally, they do recognize as 
 ■cruelty a false accusation of adultery made by a husband against 
 
 Dec. Supp. 1, p. 72 ; Barrere v. Barrere, 4 Johns. Oh. (N. Y.) 187 ; Kline t. 
 Kline, 50 Mich. 438, 15 N. W. 541 ; Zweig v. Zwelg, 46 Ind. App. 594, 93 N. E. 
 234 ; Fleytas v. Plgneguy, 9 La. 419 ; Donald v. Donald, 21 Fla. 571. 
 
 62 Reeves v. Reeves, 8 Swab. & T. 139; Fi-ench v. French, 4 Mass. 587; 
 MiUer v. Miller, 72 Tex. 250, 12 S. W. 167 ; Russell v. Russell, 37 Pa. Super. 
 Ct. 348; MacDonald v. MacDonald, 155 Cal. 665, 102 Pac. 927, 25 L. R. A. 
 (K. S.) 45. ' 
 
 o3 Holden v, Holden, 1 Hagg. Const. 453 ; Smallwood v. Smallvcood, 2 
 Swab. & T. 397; Fleytas v. Pigneguy, 9 La. 419; Lauber v. Mast. 15 La. 
 iAtiti. 593 ; Jenness v. Jenness, 60 N. H. 211 ; Richards v. Richards, 1 Grant, . 
 Oas. :(Pa.) 389. In some states the statute requires "repeated cruelty." Hen- 
 derson V. Henderson, 88 III. 248. Mere impulsive acts at long Intervals of 
 time do not constitute o-uelty. Rebstock v. Rebstock (Sup.) 144 N. T. Supp. 
 589. i 
 
 64 Pillar T. Pillar, 22 Wis. 658; Cook v. Cook, 11 N. J. Eq. 195; Finley v. 
 Finley, 9 Dana (Ky.) 52, 33 Am. Dec. 528; Moyler v. Moyler, 11 Ala. 620. 
 Isolated and infrequent acts of cruelty by a husband to his wife, culminating 
 -In physical violence of a dangerous character, accompanied by abusive words 
 and a disavowal of any affection for her, are sufficient grounds of divorce 
 from bed and board, especially where the wife is a weak and immature 
 child of 16 years. Boyle v. Boyle (N. J. Ch.) 67 Atl. 690. 
 
 65 Carpenter v. Carpenter, 30 Kan. 744, 2 Pac. 122, 46 Am. Rep. 108 ; 
 Barnes v. Barnes, 95 Cal. 171, 30 Pac. 399, 16 L. R. A. 660 ; Fleming v. Flem- 
 ing, 95 Cal. 430, 30 Pac. 566, 29 Am. St. Rep. 124; Outlaw v. Outlaw, 118 
 Md. 498, 84 Atl. 383 ; Emery v. Emery, 181 Mich. 146, 147 N. W. 452 ; Ather- 
 ton v. Atlierton, 82 Hun, 179, 31 N. T. Supp. 977 ; Waltermire v. Waltermire, 
 110 N. Y. 183, 17 N. E. 739. "It was formerly thought that to constitute ex- 
 treme cruelty, such as would authorize the granting of a divorce, physical 
 violence is necessary; but the modern and better considered cases have re- 
 pudiated this doctrine, as taking too low and sensual a view of the mar- 
 riage relation, and it is now very generally held that any unjustifiable con- 
 duct on the part of either the husband or wife which so grievously wounds 
 the feelings lof the other, or so utterly destroys the peace of mind of the 
 other, as to seriously impair the health, * • * or such as utterly de- 
 stroys the legitimate ends and ob.lects of matrimony, constitutes extreme 
 ■cruelty, under the statute." Carpenter v. Carpenter, supra. As the cases 
 cited in the following notes will show, the latter part of the above quota- 
 tion is not, as it purports to be, in accord with the weight of opinion. It 
 should be noted, in connection with the California cases cited above, that 
 ithe California statute defines "extreme cruelty" to be the infliction of griev- 
 
§§ 100-102) GROUNDS FOR DIVORCE 253 
 
 his wife.'" But from a comparison of the decisions and a careful 
 consideration of the facts and circumstances existing in the cases 
 it would appear that mere mental suffering, caused by unkind, 
 abusive, or insulting words, is not enough, but there must be such 
 degree of mental disturbance as to threaten bodily harm or to ren- 
 der the continued existence of the marital relation dangerous to 
 the mental or physical health."' 
 
 ous bodily injury "or grievous mental suffering." See Barnes v. Barnes, 
 supra. Rev. Codes N. D. 1905, § 4051, contains the same provision. See 
 Mahnken v. Mahnken, 9 N. D. 188, 82 N. W. 870, and Mosher v. Mosher, 16 
 N. D. 269, 113 N: W. 99, 12 L. R. A. (N. S.) 820, 125 Am. St. Rep. 654. In the 
 latter case it vcas said that the habitual use of profane language and telling 
 obscene stories by the wife to the husband and to third parties in his pres- 
 ence and against his wishes furnishes a ground for divorce, where the char- 
 acteristics of the husband are such that this course of conduct causes him 
 humiliation and grievous mental suffering. 
 
 6s Smith V. Smith, 8 Or. 100; Eggerth v. Bggerth, 15 Or. 626, 16 Pac. 650; 
 Wagner v. Wagner, 36 Minn. 239, 30 N. W. 766 ; Palmer v. Palmer, 45 Mich. 
 150, 7 N. W. 760, 40 Am. Rep. 461; Blurock v. Blurock, 4 Wash. 495, 30 Pac. 
 637 ; Jones v. Jones, 60 Tex. 451 ; Bahn v. Bahn, 62 Tex. 518, 50 Am. Rep. 
 539; Clinton v. Clinton, 60 Mo. App. 296; Waltermire v. Waltermire, 110 
 N. X. 183, 17 N. E. 739 ; De Meli v. De Meli, 120 N. Y. 485, 24 N. E. 996, 17 
 Am. St. Rep. 652 ; Fowler v. Fowler, 58 Hun, 601, 11 N. Y. Supp. 419. But 
 see Cheatham v. Cheatham, 10 Mo. 296; Wetherington v. Wetherlngton, 57 
 Fla. 551, 49 South. 549; Cooper v. Cooper, 51 Ind. App. 374, 99 N. E. 782; 
 Hertz V. Hertz, 126 Minn. 65, 147 N. W. 825; Votaw v. Votaw, 90 Neb. 699, 
 134 N. W. 410; MacDonald v. MacDonald, 155 Cal. 665, 102 Pac. 927, 25 L. 
 R. A. (N. S.) 45; Morris v. Morris, 57 Wash. 465, 107 Pac. 186. But see, 
 Gordon v. Gordon, 77 N. H. 597, 92 Atl. 546; Stewart v. Stewart, 175 Ind. 
 412, 94 N. E. 564. 
 
 6 7 Evans v. Evans, 1 Hagg. Const. 35; Harris v. Harris, 2 Phillim. Ill, 1 
 Eng. Ecc. R. 204; Barlee v. Barlee, 1 Addams, Ecc. 301 ; Oliver v. Oliver, 1 
 Hagg. Const. 361; Kirkman v. Kirkman, Id. 409: Detrick's^ Appeal, 117 Pa. 
 452, 11 Atl. 882 ; Shaw v. Shaw, 17 Conn. 189 ; Boggess v. Boggess, 4 Dana 
 (Ky.) 307; Daiger v. Daiger, 2 Md. Ch. 335; Close v. Close, 24 N. J. Eg. 
 338; Henderson v. Henderson, 88 111. 248; Moyler v. Moyler, 11 Ala. 620; 
 Lucas V. Lucas, 2 Tex. 112 ; Kenley v. Kenley, 2 How. (Miss.) 751 ; Maben v. 
 Maben, 72 Iowa, 658, 34 N. W. 462; Vanduzer v. Vanduzer, 70 lovi. 614, 31 
 N. W. 956 ; Cheatham v. Cheatham, 10 Mo. 296 ; Disborough v. Disborough 
 (N. J. Ch.) 26 Atl. 852 ; Brown v. Brown, 129 Ga. 246, 58 S. E. 825 ; De Oloedt 
 V. De Oloedt, 24 Idaho, 277, 133 Pac. 664; Zweig v. Zweig, 46. Ind. App. 594, 
 93 N. E. 234; Rowe v. Rowe, 84 Kan. 696, 115 Pac. 553; Willjams v. Wil- 
 liams, 101 Minn. 40O, 112 N. W. 528; Mathewson v. Mathewson, 81 Vt. 173, 
 69 Atl. 646, 18 L. R. A. (N. S.) 30O; Prall v. Prall, 58 Fla. 496, 50 South. 867, 
 26 L. R. A. (N. S.) 577; Preuitt v. Preuitt, 88 Neb. 124, 129 N. W. 175; 
 Kinsey v. Kinsey (Sup.) 124 N. Y. Supp. 30; Lyon v. Lyon, 39 Okl. Ill, 134 
 Pac. 650; Cevene v. Cevene, 143 Wis. 393, 127 N. W. 942. The use of abu- 
 sive language may be shown in connection with acts or threats of physical 
 violence, as characterizing them. Dysart v. Dysart, 1 Rob. Ecc. 106; Gibbs 
 V. Gibbs, 18 Kan. 419; Day v. Day, 56 N. H. 316; Favnham v. Farnham, 73 
 
254 SEPARATION AND DIVOECB (Ch. 7 
 
 In a leading case Lord Stowell said : "What merely wounds the 
 mental feelings is in few cases to be admitted, where they are not 
 accompanied with bodily injury, either actual or menaced. Mere 
 austerity of teAiper, petulance of manners, rudeness of language, a 
 want of civil attention and accommodation, even occasional sallies 
 of passion, if they do not threaten bodily harm, do not amount to 
 legal cruelty. The^ are high moral offenses in the marriage state, 
 undoubtedly, not innocent, surely, in any state of life, but still they 
 are not that cruelty against which the law can relieve. Under,such 
 misconduct of either of the parties — for it may exist on one side as 
 well as on the other — the suffering party must bear in some degree 
 the consequences of an injudicious connection; must subdue by 
 decent resistance or by prudent conciliation; and, if this cannot be 
 done, both must suffer in silence. And if it be complained that, by 
 this inactivity of the courts, much injustice may be suffered, and 
 much misery produced, the answer is that courts of justice do not 
 pretend to furnish cures for all the miseries of human life. They 
 redress or punish gross violations of duty, but they go no further. 
 They cannot make men virtuous ; and, as the happiness of the 
 world depends upon its virtue, there may be much unhappiness in it 
 which human laws cannot undertake to remove." ^* "The law does 
 not permit courts to sever the marriage bond, and to break yp 
 households, merely because parties, from unruly tempers or mutual 
 wranglings, live unhappily together. Tt i-pgnirpg tlipm tn submit t.n 
 the ordinary consequences of human infirmities and of unwise selec- 
 tions ; and the misconduct which will form a good ground for a 
 legal separation must be very serious , and such as amounts to ex- 
 treme cruelty, entirely subverting the family relations, by rendering' 
 the association intolerable ." ^^ "Although the character of the ill 
 treatment, \5f hether it operates directly upon the body, or primarily 
 upon the mind alone, and all the attending circumstances are to be 
 considered for the purpose of estimating, the degree of cruelty, yet 
 t he final test ot tTiesufiiciencv. as. a cause of divorce, must be its ac- 
 t ual or reasonably apprehended injurious effect upon the body OL 
 
 111. 497; Kennedy v. Kennedy, 73 N. T. 369; Johns v. Johns, 57 Miss. 530; 
 Goodrich v. Goodrich, 44 Ala. 670; Thomas v. Thomas, 20 N. J. Bq. 97; 
 Straus V. Straus, 67 Hun, 491, 22 N. Y. Supp. 567. 
 
 fs Evans v. Evans, 1 Hagg. Const. 35. 
 
 6 Cooper v. Cooper, 17 Mich. 205, 97 Am. Dec. 182. See, also, Olson v. 
 Olson, 130 Iowa, 353, 106 N. W. 758, holding that incompatibility of temper 
 is no ground for divorce. 
 
§§ 100-102) GROUNDS FOR DIVORCE 255 
 
 health of. the complaining party. * * * 'j^^g practical view of 
 the law is that a degree of cruelty which cannot be. perceived to 
 injure the body or the health of the body 'can be practically en- 
 dured,' and must be endured if there is no other remedy than by 
 divorce, because no 'scale' by which to gauge the purely mental 
 ■siisrppf-ihilitif"; and giiffpritigg has yet been invented or discovered, 
 except such as indicate the degrees thereof by their perceptible 
 effects upon the physical organization of the body." ''" 
 
 When the mental suffering is so great that it prpys upon the mind 
 and undermines the health though the suffering' is caused by words 
 and conduct, unaccompanied by any act of physical violence, the 
 result is bodily harm, and hence such conduct constitutes leg al 
 cruelty. The tendency of mode rn decisions, a<=. the p ffprt ni mpni-al 
 suffering upon bodily health has come to be more fully understoo d, 
 15; tnwflrds mnrh grpafpf jf^fit ude than is found in the earlier cag es. 
 ' in granting divorces in cases of so-called "«ienta>1 cruel ty" With- 
 out repudiating the doctrine that the injury must be physical, the 
 courts recognize that legal cruelty may exist in systematic abuse, 
 humiliating insults and annoyances,, causing mental suffering and 
 consequent ill health, as fully as in acts of violence.''^ "A husband 
 may, ^by a course of humiliating insults and annoyances, practiced 
 in the various forms which ingenious malice could readily deVise, 
 eventually destroy the life or health of his wife', although such con- 
 duct may be unaccompanied by violence, positive or threatened. 
 Would the wife have no remedy in such circumstances under our 
 
 70 Waldron v. Waldron, 85 Cal. 251, 24 Pac. 649, 858, 9 L. R. A. 487. Irf a 
 later case in California the court said that this quotation was too narrow 
 under their statute declaring extreme cruelty to be the infliction of grievous 
 bodily injury, "or grievous mental suffering." Barnes v. Barnes, 95 Cal. 171, 
 30 Pac. 299, 16 L. R. A. 660; Fleming v. Fleming, 95 Cal. 430, 30 Pac. 566, 
 29 Am. St. Rep. 124. 
 
 71 Butler V. Butler, 1 Pars. Bq. Cas. (Pa.) 329; Kelly v. Kelly, 2 Prob. & 
 Wv. 81; Walmesley v. Walmesley, 1 Reports, 529, 69 Law T. (N. S.) 152; 
 Harding v. Harding, 36 Colo. 106, 85 Pac. 423 ; Brown v. Brown, 129 Ga. 246, 
 58 >S. B. 825; Bush v. Bush (Tex. Civ. App.) 103 S. W. 217; Bailey v. Bai- 
 ley, 97 Mass. 373; Kelly v. Kelly, 18 Nev. 49, 1 Pac. 194, 51 Am. Rep. 732; 
 Fowler v. Fowler, 58 Hun, 601, 11 N. Y. Supp. 419; Cole v. Cole, 23 Iowa, 
 433 ; Day v. Day, 84 Iowa, 221, 50 N. W. 979 ;. Williams v. Williams, 23 Fla. 
 324, 2 South. 768; Powelson v. Powelson, 22 Cal. 358; Wolff v. Wolff, 102 
 Oal. 438, 36 Pac. 767, 1037 ; Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912 ; Rosisn- 
 feld v. Rosenfeld, 21 Colo. 16, 40 Pac. 49; Latham v. Latham, 30 Grat. (Va.) 
 
 I 307; Freeman v. Freeman, 31 Wis. 23^, 249; Glass v. Wynn, 76 Ga. 819; 
 Leach v. Leach (Me.) 8 Atl. 349; Carpenter v. Carpenter, 30 Kan. 712, 2 
 Pac. 122, 46 Am. Kep. 108. , . 
 
256 SEPARATION AND DIVQECB (Ch. 7 
 
 divorce laws, because actual or threatened personal violence formed 
 no element in such cruelty? The answer to this question seenfs 
 free from difficulty, when the subject is considered with reference 
 to the principles on which the divorce for cruelty is predicated. 
 The courts intervene to dissolve the marriage bond under this head, 
 for the conservation of the life or health of the wife, endangered by 
 the treatment of the husband. The cruelty is judged from its ef- 
 fects, not solely from the means by which those effects are produc- 
 ed. To hold absolutely that, if a husband avoids positive or threat- 
 ened personal violence, the wife has no legal protection against any 
 means short of these which he may resort to, and which may de- 
 stroy her life or health, is to invite such a system of infliction by 
 the indemnity given the wrongdoer. The more rational application 
 of the doctrine of cruelty is to consider a course of marital unkind- 
 ness with reference to the effect it must necessarily produce on the 
 life or health of the wiffe, and, if it has been such as to affect or in- 
 jure either, to regard it as true legal cruelty." ^^ 
 
 A divdrce on the ground of cruelty will not be granted if the ill 
 treatment has been caused by the misconduct of the plaintiff. Cru- 
 elty, as a foundation for a divorce, ihust be unmerited and unpro- 
 voked. "If her conduct be totally incc(mpatible with the duty of a 
 wife, if it be violent and outrageous, if it justly provoke the indigna- 
 tion of the husband, and cause danger to his person, she must re- 
 form her own disposition and manner." ^^ But although the plain- 
 tiff may have brought the ill treatment of which she complains 
 upon h'erself, if it is wholly out of proportion to her offense, intem- 
 perate, and inexcusably severe, her misconduct will not bar her 
 right to relief.''* 
 
 72 Butler V. Butler, 1 Pars. Eq. Cas. (Pa.) 329. 
 
 73' Waring v. Waring, 2 Phillim. 132; Poor v. Poor, 8 N. H. 307, 29 Am. 
 Dec. 664 ; Skinner v. Skinner, 5 Wis. 449 ; Von Glahn v. Von Glahn, 46 111. 
 134 ; Knight v. Knight, 31 Iowa, 451 ; Jones v. Jones, 189 Ala. 286, 66 South. 
 4 ; Pittis V. Pittis, 82 N. J. Eq. 635, 89 Atl. 749 ; Hopkins v. Hopkins, 34 S. 
 D. 637, 150 N. W. 293; Moulton v. Moulton, 2 Barb. Ch. (N. Y.) 309 ; Richards 
 V. Richards, 37 Pa. 225 ; Daiger v. Daiger, 2 Md. Oh. 335 ; Childs v. Ohilds, 
 49 Md. 509 ; Johpson v. Johnson, 14 Oal. 460 ; Reed v. Reed, 4 Nev. 395 ; 
 Harper v. Harper, 29 Mo. 301. Violence committed in a quarrel in which 
 both are at fault, and resulting in equal injury to both, is not ground for di- 
 vorce. Soper V. Soper, 29 Mich. 305 ; Castanedo v. Fortier, 34 La. Ann. 135; 
 Maben v. Maben, 72 Iowa, 658, 34 N. W. 462. 
 
 74 Evans v. Evans, 1 Hagg. Const. 35 ; Waring v. Waring, 2 Phillim. 132-; 
 Westmeath v. Westmeath, 2 Hagg. Ecc. Supp. 1, 72; Hawkins v. Hawkins, 
 65 Md. 104, 3 Atl. 749 ; King v. King, 28 Ala. 315 ; Segelbaum v. Segelbaum, 
 39 Minn. 258, 39 'N. W. 492; EidenmuUer v. Eidenmuller, 37 Cal. 364; 
 
§ 103) GROUNDS FOR DIVORCE 257 
 
 SAME— DESERTION 
 
 103. In most states, by statute, desertion for a prescribed period is 
 made ground for divorce. Desertion is withdrawal from 
 cohabitation by one of the parties, with intent to abandon 
 the other, without the other's consent, and without justifi- 
 cation. In detail, to entitle an abandoned husband or wife 
 to a divorce on. the ground of desertion — 
 
 (a) There must have been a cessation of cohabitation. 
 
 (b) Cohabitation must have ceased for the entire statutory 
 
 period. 
 
 (c) There must have been an intent to abandon. 
 
 (d) There must have been no consent on the part of the aban- 
 
 doned spouse. 
 
 (e) There must have been no misconduct on the part of the aban- 
 
 doned spous^ justifying the abandonment. 
 
 As was statp;^^ ip trpat^nor ni tVip effect of marriage upon the per- 
 sons of the spouses, they are mutually entitled to cohabitation and 
 intercQUlse. It is true that in this country no suit will lie for res- 
 titution of conjugal rights, and that, in the absence of a statute, 
 there is no legal remedy by which an abandoned spouse can either 
 compel the other to return, or be freed from the marriage tie. An 
 abandoned wife has certain powers which she does not have While 
 cohabiting with her husband, as the power to engage in business 
 and contract as a feme sole, and the power to purchase necessaries 
 on her husband's credit, if she can obtain them ; but most of her 
 disabilities remain notwithstanding the abandonment, and the 
 rights of her husband in her property continue. 
 
 This is the state of things at common law, but it has been changed 
 to some extent in most states by statutes making desertion a 
 ground for divorce. Desertion consists in the willful and unju s- 
 tifiabl e ahandnnment of one of the spouses by the other, witho ut 
 the other's con sent.'^° The length of time during which the deser- 
 
 Boeck V. ?oeck, 16 Neb. 196, 20 N. W. 223 ; Marsh v. Marsli, 64 Iowa, 667, 21 
 N. W. 130 ; Machado v. Bonet, 39 La. Annj 475, 2 South. 49. 
 
 "Bailey v. Bailey, 21 Grat (Va.) 43; Williams v. Williams, 130 N. T. 
 193, 29 N. B. 98, 14 L. E. A. 220, 27 Am.. St. Kep. 517; Crounse v. Orounse, 
 108 Va. 108, 60 S. E. 627; Barnett v. Barnett, 27 Ind. App. 466, 61 N. E. 
 737 ; Burk v. Burk, 21 W. Va. 445; Rose y. Rose, 50 Mich. 92, 14 N. W. 711 ; 
 Bennett v. Bennett, 43 Conn. 313 ; Hardenbergh v. Hardenbergh, 14 Cal. 654 ; 
 TirF.P.& D.Rel.(3d Ed.)— 17 
 
258 SEPARATION AND DIVORCE (Ch. 7 
 
 tion must last varies under the statutes of the different states. In 
 some it must last for three years, while in others it need last for 
 one year only. To constitute such a desertion as will entitle the 
 aggrieved spouse to a divorce, there must be (1) a cessation of 
 cohabitation (2) for the time prescribed by the statute ; (3) an in- 
 tention to abandon; (4) want of consent on the part of the party 
 abandoned; and (5) the abandonment must be unjustifiable; These 
 are the elements of a "desertion," as the term is used in the divorce 
 laws.'' 
 
 Abandonment and Cessation of Cohabitation 
 
 To cohabit is to live together as husband and wife,''' and the ces- 
 sation of cohabitation, without intent to resume it, and without the 
 consent of the other spouse, constitutes desertion.'^ Although a 
 husband may continue to support his wife, there is a cessation of 
 cohabitation if they cease to dwell together. "There is no more 
 important right of the wife than that which secures to her, in the 
 marriage relation, the companionship of her husband and the pro- 
 tection of his home. > His willful denial of this right, with the in- 
 tentional and permanent abandonment of all matrimonial inter- 
 course, against her coifes)it, is desertion, within the meaning of 
 our statute; and such conduct is not relieved by the fact that he 
 has from time to time contributed to her support and the support 
 of her children." '° 
 
 Aadrade v. Andrade, 14 Ariz. 379, 128 Pae. 813; Buckner v. Buckner, 118 
 Md. 101, 84 Atl. 156, Ann. Gas. 1914B, 628 ; Sergent v. Sergent, 83 N. J. Kq. 
 204. 
 
 TeBarnett v. Barnett, 27 Ind. App. 466, 61 N. E. 737; Plymate v. Ply- 
 mate (Mo. App.) 180 S. W. 29; Luper v. Luper, 61 Or. 418, 96 Pac. 1099; 
 Maloney v. Maloney, 83 Wasli. 656, 145 Pac. 631 ; Bacon v. Bacon, 68 W. Ya. 
 747, 70 S. E. 762. 
 
 7 7Yardley's Estate, 75 Pa. 207; Pollock v. Pollock, 71 N. T. 137; ante, 
 p. 75. 
 
 fsMiddleton v. Middleton, 187 Pa. 612, 41 Atl. 291; Ogilvie v. Ogilvie, 37 
 Or. 171, 61 Pac. 627 ; Todd v. Todd, 84 Conn. 591, SO Atl. 717 ; Hill v. Hill, 
 62 Fla. 493, 56 South. 941, 39 L. R. A. (N. S.) 1117; Taylor v Taylor 112 
 Md. 666, 77 Atl. 133. 
 
 foMagrath v. Magrath, 103 Mass. 577, 4 Am. Bep. 579; Brokaw v. Bro- 
 kaw, 66 Misc. Rep. .307, 123 N. Y. Supp. 317, affirmed in 147 App: Div. 906, 
 131 N. Y. Supp. 1106; Yeatman v. Yeatman, 1 Prob. & Div. 489. Likewise, 
 wlien a husband has been deserted by his wife, he may obtain a divorce on 
 that ground, though he has continued to provide for her. Macdonald v. 
 Macdonald, 4 Swab. & T. 242 ; StofCer v. StofCer, 50 Mich. 491, 15 N. W. 564 ; 
 Bauder's Appeal, 115 Pa. 480, 10 Atl. 41; Parker v. Parker, 28 111. App. 22! 
 
§ 103) GROUNDS FOE DIVORCE 259 
 
 There may, however, be separation without desertion.*"' There 
 must be a radical change in such marital relations as had existed 
 between the parties. So, if the parties never lived together, but the 
 wife lived with her parents from the time of marriage, receiving 
 visits from her husband weekly, and occasionally visiting the home 
 of the husband's parents, where he lived, such separation was not 
 desertion.*^ 
 
 Whether refusal of marital intercourse is desertion is a question 
 u pon w hich the authori ties are cpnflictyig. Desertion was not a 
 ground of^ divorce in the ecclesiastical courts. There the Temedy 
 was by suit for restitution of conjugal rights. Since the jurisdic- 
 tion of the ecclesieistical courts in that action extended only to 
 enforcing cohabitation, and not to compelling marital intercourse,'^ 
 it has been held, in analogy to the suit for restitution of conjugal 
 rights, or independently of such consideration, that such refusal 
 does not constitute desertion. '^ Some of the courts have taken 
 the contrary view, and hold that refusal of sexual intercourse for 
 the period neces sa ry to constitute desertion under th e statute is 
 des ertion, within the meaning of the statute.'* 
 
 There may be desertion without a going away.'° When either 
 spouse, after having deserted the other, offers in good faith to re- 
 turn, but is refused, such refusal, Unless justified, will constitute 
 
 80 Hall v. Hall, 69 W. Va. 175, 71 S. E. 103, 34 L. B. A. (N. S.) 758; 
 Thompson v. Thompson, 50 Pa. Super. Ct. 159. 
 
 81 Tipton V. Tipton, 169 Iowa, 182, 151 N. W. 90, Ann, Gas. 1916C, 360. 
 
 82 Forster v. Forster, 1 Hagg. Const. 154. 
 
 83 Segelbaum v. Segelbaum, 39 Minn. 258, 39 N. W. 492 ; Fritz v. Fritz, 
 138 111. 436,' 28 N. E. 1058, 14 L. K. A. tj85, 32 Am. St. Rep. 156 ; Reynolds v. 
 Reynolds, 68 W. Va. 15, 69 S. B. 381, Ann. Cas. 1912A, 889; Pfannebecker v. 
 Pfannebecker, 133 Iowa, 425, 110 N. W. 618, 119 Am. St. Rep. 608, 12 Ann. 
 Cas. 543 ; WATSON v. WATSON, 52 N. J. Eq. 849, 28 Atl. 467, Cooley Cas. 
 Persons and Domestic Relations, 134 ; Southwick v. Soutbwick, 97 Mass. 327, 
 93 Am. Dec. 95; Cowles v. Cowles, 112 Mass. 298; Prall v. Prall, 58 Ma. 
 496, 50 South. 867, 26 L. R. A. (N. S.) 577 ; Latnbert v. Lambert, 165 Iowa, 
 367, 145 N. W. 920; Steele v. Steele, 1 MacArthur (D. C.) 505;' Reid v. Reid, 
 21 N. J. Eq. 331; Stewart v. Stewart, 78 Me. 548, 7 Atl. 473, 57 Am. Rep. 
 822; Morrison v. Morrison, 20 Cal. 432; Eshbach v. Eshbach, 23 Pa. 343. 
 See Kennedy v. Kennedy, 87 111. 254. Watson v. Watson and Reid v. Reid 
 have been disapproved in later New Jersey cases. See following note. 
 
 84 Graves v. Graves, 88 Miss. 677, 41 South. 384; Rector v. Rector, 78 
 N. J. Eq. 386, 79 Atl. 295; Raymond v. Raymond (N. J. Ch.) 79 Atl. 430; 
 Evans v. Evans, 93 Ky. 510, 20 S. W. 605. See Heermance v. James, 47 Barb. 
 (N. Y.) 120; Fishll v. Fishli, 2 Litt. (Ky.) 337; 1 Bish. Mar., Div. & Sep. 
 § 1676 et seq. 
 
 8 5 Rector V. Rector, 78 N. J. Eq. 386, 79 Atl. 295. 
 
260 SEPARATION AND DITORCH (Ch. 7 
 
 desertion.*' And a refusal to renew cohabitation after a separation 
 by consent is, if the other elements are present, a desertion on the 
 part of the one so refusing.*^ As has been seen in another place, 
 the husband has a right to fix the family domicile, subject to some 
 restrictions. If, therefore, the wife, without justifiable cause, re- 
 fuses to follow him, she is guilty of desertion.'* 
 
 But the right of the husband to determine the family domicile 
 must be exercised in a reasonable manner and cannot be exercised 
 arbitrarily, nor used as a means of dissolving the marriage rela- 
 tion. *° . 
 
 _By the weight of authority, if a husband drives his wife away 
 .from him, or by his misconduct gives her justifiable cause for leav- 
 ing him, his conduct amounts to desertion as fully as it he left her ^ 
 and will support a suit by the wife for a divorce on that ground ^"" 
 The Massachusetts court has held the contrary ; '^ but reason, as 
 
 88 Grove's Appeal, 37 Pa. 443; Clement v. Mattlson, 3 Bich. (S. C.) 93; 
 English V. Englisb, 6 Grant (U. C.) 580; M'Gahay v. Williams, 12 Johns. 
 (N. T.) 293; Hague v. Hague, 85 N. J. Eq. 537, 96 Atl. 579; Fellows v. Pel- 
 lows, 31 Me. 342; Creasey v. Creasey, 168 Mo. App. 68, 151 S. W. 219; 
 Provost V. Provost, 73 N. J. Eq. 418, 75 Atl. 1101 ; Peretti v. Peretti, 165 Cal. 
 717, 134 Pac. 322; De Try v. De Vry, 46 Okl. 254, 148 Pac. 840; McConnell 
 V. McConnell, 98 Ark. 193, 136 S. W. 931, 33 L. R. A. (N. S.) 1074; Walker 
 V. Laighton, 31 N. H. Ill ; Hannig v. Hannig (Tex. Civ. App.) 24 S. W. 695. 
 See cases cited in note 97, infra. 
 
 8 7 Butler v. Butler, 1 Pars. Eq. Cas. (Pa.) 329; Hankinson v. Hankinson, 
 33 N. J. Eq. 66 ; McAllister v. McAllister, 10 Heisk. (Tenn.) 345 ; Gilbert v. 
 Gilbert, 5 Misc. Rep. 555, 26 N. Y. Supp. 30. 
 
 8 8 Winkler v. Powell, 173 Ala. 46, 55 South. 536; Coleman v. Coleman, 164 
 Ky. 709, 176 S. W. 186; Calichio v. Calichio, 85 N. J. Eq. 213, 96 Atl. 658 ; 
 Sisemore v. Sisemore, 17 Or. 542, 21 Pac. 820. That a wife refused to live 
 at the home of her husband's parents though willing to live with him under 
 any other reasonable condition was not desertion. Marshak v. Marshak, 115 
 Ark. 51, 170 S. W. 567, L. R. A. 1915E, 161, Ann. Cas. 1916E, 206. And see 
 Garrison v. Garrison (Ky.) 104 S. W. 980. 
 
 89 Hall V. Hall, 69 W. Va. 175, 71 S. E. 103, 34 L. R. A. (N. S.) 758. See, 
 also. Garrison v. Garrison (Ky.) 104 S. W. 980. 
 
 00 Warner v. Warner, 54 Mich. 492, 20 N. W. 557; Barnett v. Barnett, 27 
 Ind. App. 466, 61 N. E. 737 ; Davenport v. Davenport, 106 Va. 736, 56 S. E. 
 562 ; James v. James, 58 N. H. 268 ; Grove's Appeal, 37 Pa. 443 ; Morris v. 
 Morris, 20 Ala. 168; Kinsey v. Kinsey, 37 Ala. 393; Jones v. Jones, 95 Ala. , 
 443, 11 South. 11, 18 L. R. A. 95 ; Skean v. Skean, 33 N. J. Eq. 148 ; Palmer 
 V. Palmer, 22 N. J. Eq. 88, 91 ; Levering v. Levering, 16 Md. 213 ; Harding 
 v. Harding, 22 Md. 337 ; Johpson v. Johnson, 125 111. 510, 16 N. E. 891; Wood 
 V. Wood, 27 N. C. 674; Weigand v. Weigand, 42 N. J. Eq. 699, 11 Atl. 113; 
 Whitfield V. Whitfield, 89 Ga. 471, 15 S. E. 543; Stiles v. Stiles, 52 Nr J. Egi. 
 446, 29 Atl. 162. - 
 
 01 Pidge v. Pidge, 3 Mete. (Mass.) 257. 
 
§ 103) GROUNDS FOR DIVOROE 261 
 
 well as authority, is against it. As was said by Putnam, J., dis- 
 senting, in a Massachusetts case: "Now, to all legal and reasonable 
 intendment, the wife who is obliged to fly from her husband's vio- 
 lence and house into the street, for her preservation, is to be con- 
 sidered to be there, not of her own free will, but by reason of the 
 force and violence of her husband. He has driven her from him; 
 and I hold that it would be a perversion of terms to say that she, 
 under those circumstances, deserted him. * * * Having done 
 the outrage, the husband leaves her to go into the world without 
 house, home, or shelter, food or raiment, support, protection, or 
 aid from him. * * * j (-all this desertion." °^ 
 
 Period of Abandonment 
 
 To entitle an abandoned husband or wife to a divorce, the cessa- 
 tion of cohabitation must continue during the whole period pre- 
 scribed by the statute.*^ If cohabitation is resumed even for the 
 briefest period, and again ceases, the period of desertion must be 
 calculated from the time of the last abandonment.'* Where a wife 
 who had abandoned her husband returned occasionally to look after 
 her children, and perform domestic duties, it was held that this 
 was not a renewal of cohabitation; °° but where a wife returned 
 and performed ordinary domestic duties for several years, living in 
 the same house with her husband, he was denied a divorce for 
 desertion. °° 
 
 Return or Offer- to Return 
 
 In case of desertion there is always a locus pcenitentise until the 
 right to a divorce is complete. The deserting spouse may, until 
 then, return, or offer to return, and the other must permit it. An 
 offer toj ; enew cohabitation made by the d eserting spouse in good 
 f aith at any time before the separatio n has lasted for the period re- 
 
 »2 Per Putnam, J., in Pidge v. Pidge, 3 Mete. (Mass.) 257. 
 
 ssSurber v. Surber, 176 Ind. 399, 96 N. E. 126; Vercade v. Vercade, 147 
 Mich. 398, 110 N. W. 942; Getz v. Getz, 81 N. J. Eq..465, 88 Atl. 376; Lu- 
 per V. Luper, 61 Or. 418, 96 Pac. 1099; Klrkpatrick v. Kirkpatrick, 81 Neb. 
 627, 116 N. W. 499, 16 L. R. A. (N. S.) 1071, 129 Am. St. Kep. 70S. 
 
 ^i'Ex parte Aldridge, 1 Swab. & T. 88; La Jlamme v. La Flamme, 210 
 Mass. 156, 96 N. E. 62, 39 L. K. A. (N. g.) 1133; Luper v. Luper, 61 Or. 
 418, 96 Pac. 1099; Burk y, Burk, 21 W. Va. 445; Grossman v. Grossman, 
 33 Ala. 486; GalUard v. Gaillard, 23 Miss. 152; Kennedy v. Kennedy, 87 
 III. 2!50. 
 
 85 Rie V. Rie, 34 Ark. 37. 
 
 8 8 Holmes v. Holmes, 44 Mich. 555, 7 N. W. 228. And see Womble v. 
 Womble (Tex. Giv. App.) 152 S. W. 473. 
 
'262 SEPARATION AND DIVORCE (Ch. 7 
 
 quired by the _ statute will bar a divorce, , though refused by the 
 deserted pa rtv\" Indeed, as has been seen, such a refusal con- 
 stitutes desertion."^ Such an offer, however, after the desertion 
 has lasted for the statutory peiriod, will be too late,"" and it must 
 be free from any improper qualifications and conditions.'- 
 
 Intention to Abandon 
 
 The mere cessation of cohabitation for the time prescribed in the 
 statute is not desertion, unless there is also an intention to aban- 
 don. The cessation of cohabitation and intent to abandon must 
 concur.^ Separation, for instance, caused by necessary absence 
 on business, or by sickness, or other necessity, is not desertion,- 
 within the meaning of the divorce law.^ In a Connecticut case, it 
 appeared that the wife had lived separate from her husband at his 
 request, because of his inability to furnish a satisfactory support 
 for her or their children. "This," said the court, "does not of itself 
 constitute desertion on his part. For the purposes of this case, it 
 is sufficient to say that the offense of desertion consists in the 
 cessation of cohabitation, coupled with a determination in the mind 
 of the offending party not to renew it. This intent is the decisive 
 characteristic, and the question of intent is always a question o f 
 fact, a nd must be proved either by direct evidence, or as the neces- 
 sary and certain consequence of other facts clearly proved. Mere 
 
 9 7 Brookes v. Brookes, 1 Swab. & T. 326; Lous v. Loux, 57 N. J. Eq. 561, 
 41 Atl. 358; Luper v. Luper, 61 Or. 418, 96 Pac. 1099; Borden v. Borden, 
 166 Cal. 469, 137 Pac. 27; Walker v. Walker, 14 Cal. App. 487, 112 Pac. 
 479; Gaillard v. Gaillard, 28 Miss. "152; McClurg's Appeal, 66 Pa. 366: 
 Prather v. Prather, 26 Kan. 278 ; Walker v. Laighton, 31 N. H. Ill ; Friend 
 V. Friend, Wright (Ohio) 689: Fishli v. Fishli, 2 Litt. (Ky.) 337. Compare 
 Garrison v. Garrison, 104 S. W.^980, 31 Ky. Law Rep. 1209. And see cases 
 cited in note 86,- supra. 
 
 8 s Ante, p. 259. 
 
 oaCargill v. Cargill, 1 Swab. & T. 235; Luper v. Luper, 61 Or. 418, 96 
 Pac. 1099. See Graeff v. Graeff (N. J. Ch.) 25 Atl. 704. 
 
 1 Hunt V. Hunt, 61 Fla. 630, 54 South. 390 ; Arment v. Arment, 154 Iowa, 
 '57:!, 134 N. W. 616. 
 
 2 Williams v. Williams, 130 N. Y. 193, 29 N. E. 9S, 14 L. R. A. 220, 27 Am. 
 St. Rep. 517; Heyman v. Heyman, 119 App. Div. 182, 104 N. T. Supp. 227; 
 Kupka V. Kupka, 132 Iowa, 191, 109 N. W. 610; Hall v. Hall, 69 W. Yn. 175, 
 71 S. E. 103, 34 L. E. A. (N. S.) 758; Stevens v. Stevens, 123 Ky. 545, 
 96 S. W. 811 ; MuUer v. Muller, 125 Md. 72, 93 Atl. 404 ; Chatterton v. Chat- 
 terton, 182 111. App. 31, affirmed 281 111. 449, 83 N. E. 161, 121 Am. St. Rep. 
 339; Crounse v. Crounse, 108 Va. 108, 60 S. E. 627. 
 
 3 Taylor v. Taylor, 28 N. J. Kq. 207; Howell v. Howell, 64 N. J. Eq. 191, 
 48 Atl. 510 ; Walton v. Walton, 76 Miss. 662, 25 South. 166, 71 Am. St. Rep. 
 
§ 103) grounds' foe divorce 263 
 
 separation may result from necessity or accident, and much against 
 the will of both parties." * 
 
 It is immaterial that the intention to abandon did not exist at 
 the time of the separation, if it was afterwards formed and acted 
 upon. The intention not to return, formed after separation has 
 taken place, accompanied by continuation of the separation, is 
 desertion; but the desertion in such a case begins when the in- 
 tention is formed.^ 
 
 That there was an intent to abandon need not be shown by direct 
 evidence, but, like intent in other cases in which it is material in 
 law, may be inferred from the circumstances. It may be presumed 
 from long abandonment without apparent cause.' Such an intent, 
 when once shown to have existed, will be presumed to have con- 
 tinued, until the contrary appears.'' 
 
 Consent of the Abandoned Spouse 
 
 Not only must there be a cessation of cohabitation for the stat- 
 utory period, and an intent to abandon, to constitute desertion, but 
 the abandonment must be without the consent of the party phan^ 
 doned. Nothing is better s ettled than that abandonment or separa- 
 t ion by actual con sent — w hether such consent is expressed in the 
 form of an agreement, or is inferred from the conduct of the partie s 
 and the circumstances — cannot be relied upon as g round for di- 
 vor ce.^ "Desert ion can only be complained of when it is against 
 
 540. But see Elzas v. Elzas, 171 111. 632, 49 N. E. 717, where a coutrary rule 
 Is laid down. 
 
 4 Bennett v. Bennett, 43 Conn. 313. And see Bailey v. Bailey, 21 Grat. 
 (Va.) 43; Burk v. Burk, 21 W. Va. 445; Tipton v. Tipton, 169 Iowa, 182, 
 151 N. W. 90, Ann. Cas. 1916C, 360; Lewis v. Lewis, 167 Cal. 732, 141 Pae. 
 367, 52 L. R( A. (N. S.) 675 ; Cook v. Cook, 13 N. J. Eq. 263 ; Jennings 
 V. Jennings, Id. 38; McCoy v. McCoy, 3 Ind. 555; Williams v. Williams, 3 
 Swab. & T. 547; Ex parte Aldridge, 1 Swab. & T. 88; Bruner v. Bruner, 70 
 Md. 105, 16 Atl. 385; Keech v. Keech, 1 Prob. & Div. 641; 'Williams v. Wil- 
 liams, 21 S. W. 529, 14 Ky. Law Rep. 744. The confinement of a wife in an 
 insane asylum is not an abandonment of her hu^and. Pile v. Pile, 94 Ky. 
 308, 22 S. W. 215. To the same effect, see Porter v. Porter, 82 N. J. Eq. 400, 
 89 Atl. 251. 
 
 Pinkard v. Pinkard, 14 Tex. 356, 65 Am. Dec. 129 ; Foote v. Foote, 71 
 N. J. Eq. 273, 65 Atl. 205; Ahrehfeldt v. Ahreufeldt, 1 Hoff. Ch. (N. Y.) 47; 
 Fulton V. Fulton, .S6 Miss. 517; Reed v. Reed, Wright (Ohio) 224; Gate- 
 house V. Gatehouse, 1 Prob. & Dlv. 331. See Conger v. Conger, 13 N. J. 
 Kq. 286. 
 
 Morrison v. Morrison, 20 Cal. 431 ; Hill v. Hill, 87 Wash. 150, 151 Pac 
 268. 
 
 ^ Bailey v. Bailey, 21 Grat. (Va.) 43 ; Gray v. Gray. 15 Ala. 779. . 
 
 8 Johnson v. Johnson, 107 Ark. 262, 154 S. W. 503 ; Lof tus v. Loftus, 134 
 
264 SEPARATION AND DIVOKCB (Ch, 7 
 
 the w ill of the party who is dfiserted (in this case the husband), and 
 constitutes a grievance which deprives him of the society of his 
 wife without his consent or acquiescence. If there be a separation 
 by consent, that consent, shows that the parties deem it no griev- 
 ance to be deprived of each other's society, and nothing but an 
 unconditional and entire resumption of their early relations can 
 restore them to such a position as would make a new separation by 
 the departure of the wife, as in this case, a criminal desertion." ' 
 
 The consent of the abandoned party, like consent in other cases 
 where consent is material, need not be proved by direct evidence, 
 but may be 'inferred from his or her conduct, or from the conduct of 
 both parties. The consent must in some way be manifested. "The 
 undisclosed emotions of the deserted party do not affect his 
 rights." ^° But the fact of consent may be shown by his conduct.^^ 
 
 Consent to the separation may be inferred from a course of con - 
 duct inducing it,^' or from a course of conduct promoting the c on- 
 tinua nce of a separation which has already taken p lace." If, after 
 a wife nas separated from her husband, even without justification, 
 she offers to return to him, and he refuses to receive her, her con- 
 tinuing away is not desertion.^* And such refusal may be inferred 
 
 III. App. 360; Albee v. Albee, 38 Nev. 191, 147 Pac. 452; Bacon v. Bacon, 
 68 W. Va. 747, 70 S. E. 762 ; Jones v. Read- Jones, 84 N. J. Eq. 479, 93 Atl. 580; 
 Keesey v. Keesey, 160 Cal. 727, 117 Pac. 1054 ; Summers v. Summers, 179 Ind. 
 8, 100 N. E. 71 ; Walker v. Walker, 125 Md. 649, 94 AU. 346, Ann. Cas. 1916B, 
 934; Cox v. Cox, 35 Mich. 461; Eose v. Rose, 50 Mich. 92, 14 N. W. 711; 
 Beller v. Beller, 50 Mich. 51, 14 N. W. 696 ; Ford v. Ford, 143 Mass. 577, 10 
 N. B. 474,; Lea y. Lea, 8 Allen (Mass.) 418; Goldbeck v. Goldbeck, 18 N. 
 J. Eq. 42; Benkert v. Benkert. 32 Cal. 467; Secor v. Secor, 1 MacArthur 
 (D. G.) 630; Crow v. Crow, 23 Ala. 583; Stokes v. Stokes, 1 Mo. 320; In- 
 gersoll V. Ingersoll, 49 Pa. 249, 88 Am. Dec. 500; Fulton v. Fulton, 36 Miss. 
 517 ; Adams v. Adams, 66 Hun, 627, 20 N. Y. Supp. 765 ; Townsend v. Town- 
 send, L. R. 3 Prob. & Div. 129; Fitzgerald v. Fitzgerald, Id., 136; Buckmaster 
 V. Buckmaster, L. R. 1 Prob. & Div. 713 ; Ward v. Ward, 1 Swab. & T. 185. 
 " Cooper V. Cooper, 17 Mich. 205. 97 Am. Dec. 182. 
 
 10 Ford y. Ford, 143 Mass. 577, 10 N. E. 474. 
 
 11 Ford y. Ford, 143 Mass. 577, 10 N. E. 474; Ward v. Ward 7 Pennewill 
 (Del.) 364, 75 Atl. 611. 
 
 12 Meldowney v. Meldowney, 27 N. J. Eq. 328; Gray v. Gray, 19 Ala. 779; 
 Gillinwaters v. Gillinwaters, 28 Mo. 60 ; Dwyer y. Dwyer, 16 Mo. App. 422. 
 
 13 Taylor v. Taylor, 28 N. J. Eq. 207; Cornish v. Cornish, 23 N. J. Eq. 208; 
 Bradley v. Bradley, 160 Mass. 258, 35 N. E. 482 ; Payne v. Payne (N. J. Ch.) 
 28 Atl. 449 ; Dwyer v. Dwyer, 16 Mo. App. 422 ; Schoen v. Schoen, 48 111" Add 
 382. ■ 
 
 1* Seeds v. Seeds, 139 Iowa, 717, 117 N. W. 1069 ; Conlin v. Conlin 163 
 Iowa, 42(), 144 N. W. 1005 ; Silverstein v. Silverstein, 178 Hi. App. 145. 
 
§ 103) GROUNDS FOR DIVORCE 265 
 
 from his conduct towards her after the oflEer to retutn. Thus, where 
 a wife who was living apart from her husband, each denying deser- 
 tion, and alleging^hat the fault was on the part of the other, offered 
 to live with him if he would treat her as a wife, and he saw her 
 but once after the offer, and never asked her to come back, or 
 made any effort to have her return and live with him, it was held 
 that she was not guilty of desertion after the offer.^^ 
 
 Even where a wife who has deserted her husband without cause 
 makes no offer to return to him, his conduct may show that he 
 would not receive her back. If he does so act as to show affirma- 
 tively that he will not receive her back, he consents to the separa- 
 tion, and cannot rely upon its continuance as a ground for divorce. 
 He is not bound to take any active steps to get her back, and there- 
 fore his mere silence will not amount to consent; ^^ but it is a 
 very different- thing if he shows by an overt act that he is not 
 willing to receive her. On this principle, it has been held that if 
 a wife has deserted her husband, and, pending the separation, he 
 brings suit against her for a divorce on the ground of adultery, this 
 shows that he is not willing to recei-\4 her back, and that he cannot 
 rely on the continuance of the separation pending the suit as de- 
 sertion, entitling him to a divo.rce on that ground. '^^ The Minnesota 
 court has made a distinction on this point between cases in which 
 the deserting spouse is guilty of the adultery and cases in which 
 he or she is innocent, and has held that where, after a wife has 
 deserted her husband, he brings a suit for divorce on the ground 
 of her adultery after the desertion, the divorce suit may prevent 
 her continuing to remain away from him from being desertion 
 if she is innocent, but that it cannot have this effect if she is guilty. 
 
 15 Bradley v. Bradley, 160 Mass. 258, 35 N. B. 482. 
 
 16 Bedford v. Bedford, 162 Mo. App. 127, 144 S. W. 125; Fielding v. Field- 
 ing, 67 Fla. 143, 64 South. 546; Seeds v. Seeds, 139 Iowa, 717, 117 N. W. 
 1069; Patterson v. Patterson, 45 Wash. 296, 88 Pac. 196; McKinney v. Mc- 
 Kinney, 77 W. Va. 58, 87 S. B. 928. But see Rogers v. Rogers, 81 N. J. 
 Eq. 479, 86 Atl. 935, 46 L. R. A. (N. S.) 711; Hague v. Hague, 85 N. J. 
 Bq. 537, 96 Atl. 579; Dennison v. Dennison, 52 Misc. Rep. 37, 102 N. T. 
 Supp. 621; Deveos v. Deveos. 115 Va. 517, 79 S. B. 1048. 
 
 17 Ford V. Ford, 143 Mass. 577, 10 N. E. 474. That separation during the 
 pendency of divorce proceedings is not desertion, see, also, Clowes v. Clowes, 
 9 Jur. 356 ; Marsh v. Marsh, 14 N. J. Eq. 315, 82 Am. Dec. 251 ; Sykes v. 
 Halstead, 3 N. Y. Super. Ct. 483 ; Porritt v. Porritt, 18 Mich. 420 ; Doyle v. 
 Doyle, 26 Mo. 545 ; Salorgne v. Salorgne, 6 Mo. App. 603 ; Edwards v. Green, 
 9 La. Ann. 317 ; Ghipchase v. Ohipchase, 48 N. J. Eq. 549, 22 Atl. 588 ; Graeff 
 V. GraefC (N. J. Ch.) 25 Atl. 704. 
 
266 SEPARATION AND DIVORCE (Ch. 7 
 
 "If a defendant," .it was said, "resisting an action founded upon 
 her alleged desertion, relies upon such an intervening event as sus- 
 pending or interrupting the effect of the desertion, and if it appear 
 that her own wrongful conduct naturally caused the event relied 
 upon in defense, such a defense cannot avail her. An unjustifiable 
 desertion continues to be desertion, in legal contemplation and 
 effect, none the less although it be attended by such wrongful con- 
 duct on the part of the deserting party as would naturally forbid 
 his being received again, while unreformed, to matrimonial co- 
 habitation." " 
 
 Misconduct of the Abandoned Spouse 
 
 The abandonment, to constitute desertion, even where there is no 
 actual consent, must be unjustifiable. If either spoust is guilty of 
 such misconduct as to justify the other in leaving, the latter's ab- 
 sence does not amount to desertion.^^ "It has accordingly been 
 declared," says the Massachusetts court, "by the great weight of 
 American authority, that ill treatment or misconduct of the hus- 
 band of such a degree or under such circumstances as not to amount 
 to cruelty for which the wife would be entitled to sue for a divorce 
 against him might yet justify her in leaving his house, and prevent 
 his obtaining a divorce for her desertion if she did so." '" 
 
 18 Wagner v. "Wagner, 39 Minn. 394, 40 N. W. 360. 
 
 isLyster v. Lyster, 111 Mass. 327; Crounse v. Crounse, 108 Va. 108, 60 S. 
 E. 627; "Warner v. "Warnt^r, 54 Mich. 492, 20 N. W, oST; Hardin v. Hardin, 
 17 Ala. 250, 52 Aui. Dec. 170 ; Bishop v. Bishop, 155 Ky. 679, 160 S. "W. 176 ; 
 Gillinwaters v. Gillinwaters, 28 Mo. 60; NefE v. Neff, 20 Mo. App. 182; 
 "Weigand v. Weigand, 42 N. J. Bq. 699, 11 Atl. 113 ; Israel v. Israel, 185 Ala. 
 39, 64 South. 67; Farwell v. Farwell, 47 Mont. 574, 133 Pac. 958, Ann. Gas. 
 1915C, 78; Suydam v. Suydam, 79 N. J. Eq. 144, 80 Atl. 1057. Desertion Is 
 not justified merely because the wife is slovenly, lazy, and neglectful • of 
 her own person, and fails to keep her children, her household, and her hus- 
 band's clothing in proper order. Hunter v. Hunter, 121 111. App. 380. See, 
 also, McAndrews v. McAndrews, 31 Pa. Super. Ot. 252. "R'here the wife 
 was compelled to leave her husband on account of his cruel treatment it 
 was in law an abandohment by the husband. Dowdy v. Dowdy, 154 N. C. 
 556, 70 S. E. 917. And see Davenport v. Davenport, 106 "Va. 736, 5« S. E. 
 562. 
 
 2 Lyster v. Lyster, 111 Mass. 327. 
 
§ 104) GROUNDS FOR DIVORCE 2G7 
 
 SAME— MISCELLANEOUS OTHER GROUNDS 
 
 104. Various other grounds for divorce are prescribed by the stat- 
 utes of some of the states. Among them may be men- 
 tioned : 
 
 (a) Habitual drimkenness, in most states. 
 
 (b) Conviction of crime and imprisonment under certain circum- 
 
 stances, in most states. 
 
 (c) Incurable insanity, in some states. 
 
 (d) Separation not amounting to desertion, in a few states. 
 
 (e) Nonsupport, under certain circumstances, in some states. 
 
 (f) Where the other party has obtained a divorce in another 
 
 state, in some states. 
 
 (g) Causes rendering marriage void or voidable, in some states ; 
 
 like impotence, relationship, prior marriage, mental inca- 
 pacity, nonage, fraud, and duress. 
 
 Adultery, cruelty, and desertion are the most common grounds 
 for a divorce ; and they are the only grounds of which the size and 
 scope of this work will permit of treatment at any length. It may 
 be well, however, to call attention to the fact that the statutes in 
 the various states have made numerous other acts or circumstances 
 grounds for divorce, and to mention the substance of these statutes 
 shortly, leaving the student to consult the local statutes to deter- 
 mine the grounds for divorce in his own state. 
 
 Habitual Drunkenness, etc. 
 
 In nearly all of the states a divorce a vinculo matrimonii, or a 
 mensa et thoro, or either, at the option of the injured spouse, may 
 be granted for "habitual drunkenness," "gross and confirmed habits 
 of intoxication," such intoxication as renders "living together insup- 
 portable," etc. The language of the statutes differ, but they mean 
 substantially the same thing.^^ Perhaps under none of the statutes 
 will a divorce be granted unless it is shown that the habits of drunk- 
 enness are confirmed and continued. A man who drinks to excess 
 may be an habitual drunkard, although he is not constantly drunk, 
 but there are intervals when he refrains entirely from the use of 
 intoxicating liquors. The excessive indulgence in intoxicating 
 
 21 Stim. Am. Stj Law, § 6206. "Continued drunkenness" and "habitual 
 drunkenness" mean the same thing. Gourlay v. Gourlay, 16 K. 1. 705, 19 
 Atl. 142. 
 
268 SEPARATION AND DIVORCE (Ch. 7 
 
 drinks as a fixed habit is' habitual drunkenness." Neither occasion- 
 al drunkenness,^^ nor the habitual, but moderate, use of intoxi- 
 cants,'* will constitute a ground for divorce. 
 
 A person who frequently drinks to excess, and becomes intoxi- 
 cated whenever the temptation is presented and the oportunity is 
 afforded him, is an habitual drunkard, within the meaning of the 
 statutes.'" The word "drunkenness," or the word "intoxication," 
 is used in the statute in its ordinary sense, as referring to the effect 
 of intoxicating liquors, and does not include the use of morphine 
 or other drugs, though the effect of their use is similar.'* 
 
 A wife cannot set up habitual drunkenness if, at the time of the 
 marriage, she knew that the habit existed.'' 
 
 22 Gourlay v. Gourlay, 16 B. I. 705, 19 Atl. 142 ; CVKane v. O'Kane, 103 
 Ark. 382, 147 S. W. 73, 40 L. R. A. (N. S.) 655 ; Garrett v. Garrett, 252 Illj 318, 
 96 N. E. 882, reversing 160 111. App. 321 ; Tarrant v. Tarrant, 156 Mo. App. 
 725, 137 S. W. 56. 
 
 23 Eapp V. Rapp, 149 Mich. 218, 112 N. W. 709; Smith v. Smith, 172 Mich. 
 175, 137 N. W. 644; Donley v. Donley, 150 Mo. App. 660, 131 S. W. 356; 
 Holm V. Holm, 44 Utah, 242, 139 Pac. 937. 
 
 24 Bain v. Bain, 79 Neb. 711, 113 N. W. 141; Schaub v. Schaub, 117 La. 
 727, 42 South. 249. 
 
 2 5 Walton V. Walton, 34 Kan. 195, 8 Pac. 110; McBee v. McBee, 22 Or. 
 329, 29 Pac. 887, 29 Am. St. Rep. 613 ; Ludwick v. Com., 18 Pa. 172 ; State v. 
 Pratt, 34 Vt. 323; Magahay v. Magahay, 35 Mich. 210; Blaney v. Blaney, 
 126 Mass. 205 ; Mack v. Handy, 39 La. Ann. 491, 2 South. 181 ; De I^sdernier 
 V. De Lesdernier, 45 La. Ann. 1364, 14 South. 191; Williams v. Goss, 43 
 La. Ann. 868, 9 South. 750 ; Golding v. Golding, 6 Mo. App. 602 ; Brown v. 
 Brown, 38 Ark. 324; Richards v. Richards, 19 111. App. 465; McGill v. McGill, 
 19 Fla. 341 ; Mahone v. Mahone, 19 Cal. 627, 81 Am. Dec. 91. "The phrase 
 'habitual intemperance' scarcely requires an interpretation. It is easily un- 
 derstood. It means the custom or habit of getting drunk; the constant in- 
 dulgence in such stimulants as wine, brandy, and whisky, whereby intoxi- 
 cation is produced; not the ordinary use, but the habitual use of them. 
 The habit should be actual or confirmed. It may be intermittent. It need 
 not be continuous or even of daily occurrence." Mack v. Handy, supra. 
 Though the periods of a husband's intoxication occurred only three or four 
 times a year, yet, where they lasted a week or ten days at a time, and he 
 then became grossly Intoxicated, and went or was sent to an inebriate asylum, 
 and such periods had occurred for twelve or fifteen years, he was held to 
 be an habitual drunkard. Blaney v. Blaney, supra. 
 
 26 Toungg V. Youngs, 130 111. 230, 22 N. E. 806, 6 L. R. 'A. 548, 17 Am. 
 St. Rep. 313, affirming 33 111. App. 223 ; Rindlaub v. Rindlaub, 19 N. D. 352, 
 125 N. W. 479. And see Com. v. Whitney, 11 Cush. (Mass.) 477, where it 
 was held that evidence of habitual intoxication from the use of chloroform 
 would not sustain a criminal charge, under a statute^ of being a common 
 drunkard. i 
 
 2 7 Porritt V. Porritt, 16 Mich. 140; Tilton v. Til ton, 29 S. W. 290, 16 Ky. 
 Law Rep. 538 ; Blaney v. Blaney, 126 Mass. 205. 
 
§ 104) GROUNDS FOR DIVORCE 269 
 
 Conviction of Crime and Imprisonment 
 
 In most states conviction of either party of a crime, and sentence 
 to imprisonment in the state prison, is declared a ground of di- 
 vorce.^' In some states no time of sentence is prescribed, while in 
 others the imprisonment must be for a certain number of years, 
 varying in the different states, and in some it must be for life. In 
 some states a divorce may be granted if either party has been in- 
 dicted for an infamous offense, and is a fugitive from justice; in 
 some he must have been a fugitive for a prescribed time. In some 
 states conviction of a felony or infamous crime ^^ is made a ground 
 for divorce, without mentioning imprisonment or sentence. As a 
 rule, no pardon can restore the guilty party to his marital rights.'" 
 
 In^some states the statutes extend to conviction and imprison- 
 ment in another state." It has been held that, unless the statute ex- 
 pressly so provides, it cannot be so extended.'^ This, however, 
 does not seem reasonable. The reasons why a divorce should be 
 granted are as strong where the imprisonment and conviction are 
 without the state as where they are within it. 
 
 A woman cannot knowingly marry a felon after his conviction, 
 and afterwards set up such conviction, or a sentence to imprison- 
 ment based thereon, as ground for divorce. It has therefore been 
 held that since a woman who marries a man who has been con- 
 
 2 8 Imprisonment in a reformatory is not ground for divorce in Massacliu- 
 setts. TJnsoeld v. tJnsoeld, 216 Mass. 594, 104 N. E. 462. Under the Oregon 
 statute a conviction does not become ground for divorce, unless it has be- 
 come final by affirmance on appeal or by failure to appeal. Luper v. Luper, 
 61 Or. 418, 96 Pac. 1099. 
 
 2 9 In Wheeler v. Wheeler, 2 Pa. Dist. R. 567, it was held that assault with 
 intent to rape was not an "Infamous" crime, within the meaning of the 
 statute. In most states, however, this would not be so; but all offenses 
 are felonies and infamous that are or may be punishable by death or imprison- 
 ment in the state prison. See Clark, Cr. Law, 34 ; Ex parte Wilson, 114 U. 
 S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89 ; Mackin v. U. S., 117 TJ. S. 348, 6 Sup. 
 Ct. 777, 29 L. Ed. 909 ; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ot. Ill, 32 L. 
 Ed. 485. The Georgia statute (Civ. Code 1895, § 2426, par. 8) provides that 
 conviction of an offense involving "moral turpitude" with sentence to im- 
 prisonment In the penitentiary is ground for -divorce. Holloway v. Hollo- 
 way, 126 Ga. 459, 55 S. E. 191, 7 L. R. A. (N. S.) 272, 115 Am. St. Rep. 102, 
 7 Ann. Gas. 1164. 
 
 30 Holloway v. Holloway, 126 Ga. 459, 55 S. B. 191, 7 L. R. A. (N. S.) 272, 
 115 Am. St. Rep. 102, 7 Ann. Cas. 1164; Wood v. Wood, 185 Ga. 885, 69 S. 
 E. 549. 
 
 31 Frantz v. Frantz, 11 Pa. Co. Ct. R. 467. 
 
 32 Leonard v. Leonard, 151 Mass. 151, 26 N. E. 732, 6 L. R. A. 632, 21 Am. 
 St. Rep. 487; Martin v. Martin, 47 N. H. 53. 
 
270 SEPAEATION AND DIVORCE (Cll. 7 
 
 victed of a crime, while his case is pending on exceptions in the 
 supreme court, must know that sentence is likely to follow such 
 conviction, a subsequent sentence can be no ground for divorce.^* 
 In Wisconsin a statute provides, that a sentence of imprisonment 
 for life shall dissolve the marriage of the person sentenced, without 
 any judgment of divorce or other legal process ; and there are sim- 
 ilar statutes in other states. This, however, is a case of legislative 
 divorce.^* 
 
 Insanity 
 
 In the absence of a statute expressly allowing it, a divorce cannot 
 be granted on the ground of the other party's insanity. ^^ In some 
 states, however, statutes have been enacted entitling a party to a 
 divorce where the other party is incurably insane. ^° 
 
 Grounds Similar to Desertion — Nonsuppof't 
 
 In a few states either party may obtain a divorce where they have 
 voluntarily lived entirely separate for a certain length of time; 
 and in some states a divorce may be granted when either party 
 has separated from the other without his or her consent, and join- 
 ed with a religious sect or society that professes to believe the 
 marriage relation void or unlawful, and refused to cohabit with the 
 •other. In a few states a party is entitled to a divorce when the 
 other party has obtained a divorce in another state ; ^^ and in some a 
 divorce may be granted for disappearance of either party, and 
 absence for a certain length of time, without being heard of. In 
 a number of states, failure of the husband to support his wife, where 
 he is able to do so, is made a ground for divorce.'* 
 
 3S Caswell v. Caswell, 64 Vt. 557, 24 Atl. 988, 33 Am. St. Rep. 943. 
 
 84 Post, p. ■ 291. 
 
 8 5 Pile V. Pile, 94 Ky. 308, 22 S. W. 215; Baughman v. Baughman, 34 Pa. 
 Super. Ct. 271. 
 
 3 6 As to siTfficiency of insanity, see Hanbury v. Hanbury, [1892] Prob. 222.. 
 That such a law is valid, see Hickman v. Hickman, 1 Wash. 257, 24 Pac. 445, 
 22 Am. St. Kep. 148. 
 
 37 Van Inwagen v. Van Inwagen, 86 Mich. 333, ,49 N. W. 154. 
 
 3 8 Lee V. Lee, 38 Okl. 388, 132 Pac. 1070; Gellatly v. Gellatly, 185 Mich. 
 382, 151 N. W. 1037; Svanda v. Svanda, 93 Neb. 404, 140 N. W. 777, 47 
 L. R. A. (N. S.) 666; Lillie v. Lillie, 65 Vt. 109, 26 Atl. 525; Seigmund v. 
 Seigmund, 46 Wash. 572, 90 Pac. 913 ; Caswell v. Caswell, 66 Vt. 242, 28 Atl. 
 988 ; Runkle v. Bunkle, 96 Mich. 493, 56 N. W. 2. But see Arnold v. Arnold, 
 115 Ark. 32, 170 S. W. 486; Weller v. Weller, 154 Mo. App. 6, 133 S. W. 
 128. Under a statute providing that the wife may have a divorce when the 
 husband, being of "pecuniary ability," without cause refuses to support her, 
 and construing "pecuniary al^ility" to mean ability to provide for a wife. 
 
§ 104) . GROUNDS FOR DIVORCE 271 
 
 Divorce as a Substitute for Decree of Nullity 
 
 Nullity suits — that is, suits to have a marriage judicially annulled 
 for causes existing at the time it was entered into, and rendering 
 it void or voidable — have been explained in treating of marriage, 
 and properly so, for they are entirely different from a suit for di- 
 vorce. In case of a decre e of nullity the effect is not to dissolve 
 an exi sting marriage, but to declare that~a validlnarriage has 
 never existed. A s iiit for a divorce, on the other hand, is to disso lve 
 a marri age that is vali d. In many of the states a suit for divorce 
 has been substituted by statute for the remedy by suit for nullity, 
 or else has been made a. concurrent remedy. In a number of states, 
 by statute, a divorce may be obtained for impotence or physical 
 incapacity of either party existing at the time of the marriage; ^^ 
 or because the marriage is within the prohibited degrees of relation- 
 ship;*" or because either party was already married to another,*^ 
 or was non compos mentis, or under the age of consent; or because 
 the marriage was procured by fraud or duress.*^ 
 
 either from labor, income of property, or otherwise, it was held that a wife 
 could not obtain a divorce because her husband, being able-bodied, would not 
 work, and had therefore no means, and could not support her. Jewett v. 
 Jewett, 61 Vt. 370, 17 Atl. 734. And see Farnsworth v. Farnsworth, 58 
 Vt. 555, 5 Atl. 401. A divorce was refused where the failure of the husband 
 to support his wife was due to his committal to prison under sentence; the 
 statute allowing a divorce for "neglect or refusal on the part of the hus- 
 band, being of sufficient ability, to provide necessaries for the subsistence of 
 his wife." Hammond v. Hammond, 15 R. I. 40, 23 Atl. 143, 2 Am. St. Rep. 
 
 ser. 
 
 39 As to what constitutes impotence, see Payne v. Payne, 46 Minn. 467, 49 
 N. W. 230, 24 Am. St. Rep. 240. "Physically incapacitated," as used in the 
 statute, has been held to mean "Impotent." Anon., 89 Ala. 291, 7 South. 
 100, 7 L. R. A. 425, 18 Am. St. Rep. 116. It has, however, been considered 
 a broader term than "impotent." Thus, a woman who was afflicted with 
 chronic syphilis was held physically incapacitated. , Ryder v. Ryder, 66 Vt. 
 158, 28 Atl. 1029, 44 Am. St. Rep. 833. For other instances of physical 
 incapacity, see Mutter v. Mutter, 123 Ky. 754, 97 S. W. 393, 124 Am. St. Rep. 
 381 ; S— v. S , 192 Mass. 194, 77 N. E. ,1025, 116 Am. St. Rep. 240. Im- 
 potence, to authorize a divorce, must be incurable, or, being curable, the party 
 must refuse to submit to treatment. Griffith v. Griffith, 55 111. App. 474 ; 
 Kinkaid v. Kinkaid, 256 111. 548, 100 N. E. 217 ; Bunger v. Bunger, 85 Kan. 
 564, 117 Pac. 1017, Ann. Gas. 1913A, 126. As. to the effect of Impotence on the 
 validity of a marriage, and suits for nullity, see ante, pp. 29, 56. 
 
 *o McClain v. McClain, 40 Pa. Super. Ct. 248. 
 
 *i See Ralston v. Ralston, 2 Pa. Dist. R. 241; Dimpfel v. Wilson, 107 Md. 
 329, 68 Atl. 561, 13 L. R. A. (N. S.) 1180, 15 Ann. Oas. 753. 
 
 42 Wallace v. Wallace, 137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 
 544, 126 Am. St. Rep. 253, 15 Ann. Gas. 761; Browning v. Browning, 89 Kan. 
 
272 SEPARATION AND DIVORCE (Ch. 7 
 
 Other Grounds 
 
 Other grounds for divorce prescribed by statute in some of the 
 states are "gross misbehavior and vsrickedness of either party re- 
 pugnant to and in violation of the marriage contract"; "any in- 
 famous crime involving a violation of conjugal duty"; "any gross 
 neglect of duty" ; *' commission of buggery either before or after 
 the marriage; when, unknown to the husband, the wife had been 
 guilty of fornication before the marriage, or was pregnant by 
 another man, or was a prostitute, or was matrimonially incapacitat- 
 ed.** So, on the other hand, the wife is entitled to a divorce in 
 some states where the husband, unknown to the wife, was a noto- 
 riously licentious person at the time of the marriage. 
 
 In several states there is a general clause in the statute which 
 allows the courts a very wide discretion in granting divorces. 
 In Washington the statute allows a divorce "for any other cause 
 deemed by the court sufficient, if satisfied that they [the parties] 
 can no longer live together." *° In Connecticut a divorce could for- 
 merly be granted "for any such misconduct as permanently de- 
 stroys the happiness of the petitioner, and defeats the purpose of 
 the marriage relation" ; but this clause hafe been repealed. In Wis- 
 consin a divorce may be allowed "when, by reason of his conduct 
 towards her being such as to render it improper for her to live 
 with him, the court are of opinion that it will be discreet and prop- 
 er to grant the divorce." In Arizona a divorce could formerly be 
 granted "when the case is within the reason of the law, within 
 the general mischief the law is intended to remedy, or within what 
 
 98, 130 Pac. 852, L. K. A. 1916C, 737, Ann. Cas. 19140, 1288. But see Young 
 V. Young (Tex. Civ. App.) 127 S. W. 898. One who claims to have been 
 fraudulently induced to marry by the representations of the woman that she 
 was pregnant by illicit intercourse indulged in by them, but failed to show 
 that he was deceived thereby, is not entitled to a divorce under a statute 
 allowing a divorce "where the alleged marriage was procured by fraud, force, 
 or coercion, and has not been subsequently confirmed by the acts of the 
 parties." Todd v. Todd, 149 Pa. 60, 24 Atl. 128, 17 L. R. A. 320. 
 
 *3 Where the wife has refused for more than five years to cohabit with 
 her husband as his wife, or to perform any of her household duties, her 
 conduct is "gross neglect of duty," within the meaning of the statute. Leach 
 v. Leach, 46 Kan. 724, 27 Pac. 131. 
 
 ** Pregnancy at the time of the marriage, unknown to the husband, who 
 had had no intercourse with her, is "matrimonial incapacity." Caton v 
 Caton, 6 MacUey (D. 0.) 309. 
 
 46 Ballinger's Ann. Codes & St. § 5716; subd. 7. And see Biokford v Bick- 
 ford, 57 Wash. 639, 107 Pac. 837; Pierce v. Pierce, 68 Wash. 415 123 Pac. 
 598. 
 
§ 105) DEFENSES 273 
 
 it may be presumed the Legislature establishing the foregoing caus- 
 es would have provided against had they foreseen the /Specific 
 case"; but this provision seems to be no longer in operation. In 
 Florida a divorce is allowed "for the habitual indulgence of a vio- 
 lent and ungovernable temper." *° 
 
 DEFENSES^CONNIVANCE 
 
 105. Connivance is the corrupt consenting by one spouse to an of- 
 fense by the other, and will bar a suit for divorce for such 
 offense. 
 
 ' It is the well-settled rule, and one which the courts are frequent- 
 ly called upon to apply, that, if either spouse consents to conduct 
 on the part of the other which would ordinarily constitute a 
 ground for divorce, he or she will be held to have connived at such 
 conduct, and, on the principle, a volenti non fit, injuria, will not be 
 heard to complain of it as a ground for divorce.*^ This is express- 
 ly declared by the statute in many states. Where it is not so de- 
 clared, it is nevertheless recognized as the law, for it was the law 
 of the English ecclesiastical courts, and it is to be assumed that the 
 Legislature intended to adopt the general principles by which those 
 courts were governed, in so far as they are applicable and rea- 
 sonable.*' 
 
 On this principle a husband's connivance at his wife's adultery 
 has frequently been held a complete bar to a divorce for the par- 
 ticular act of adultery connived at,*° or for subsequent acts ei- 
 ther with the same person or with another.^" "If he has relaxed 
 with one man, he cannot complain of another." ^^ But this harsh 
 
 46 Hlckson V. Hickson, 54 Fla. 556, 45 South. 474. 
 
 *7 Forster v. Forster, 1 Hagg. Consist. 146 ; Rogers v. Rogers, 3 Hagg. 
 Bcc. 57; Anichini v. Auichini, 2 Curt. Bee. 210; Morrison v. Morrison, 136 
 Mass. 310; Id., 142 Mass. 361, 8 N. E. 59, 56 Am. Rep. 688; Myers v. Myers, 
 41 Barb. (N. T.) 114; Bourgeois v. Cliauvin, 39 La. Ann. 216, 1 South. 679. 
 
 4s Morrison v. Morrison, 142 Mass. 361, 8 N. B. 59, 56 Am. Rep. 688. 
 
 49 Delaney v. Delaney, 71 N. J. Eq. 246, 65 Atl. 217, reversing 69 N. J. Eq. 
 602, 61 Atl. 266 ; Armstrong v. Armstrong, 45 Misc. Rep. 260, 92 N. T. Supp. 
 165 ; Eames v. Bames, 133 111. App. 665 ; Riesen v. Riesen, 148 111. App. 460 ; 
 Pierce v. Pierce, 20 Mass. (3 Pick.) 299, 15 Am. Dec. 210. 
 
 soGipps V. Gipps, 3 Swab. & T. 116; Levering v. Levering, 3 Hagg. Eca 
 85; Hedden v. Hedden, 21 N. J. Bq. 61 ; Woodward v. Woodward, 41 N. J. 
 Eq. 224, 4 Atl. 424. 
 
 51 Levering v. Ijovering, 3 Hagg. Bcc. 85. 
 TIFF.P.& D.Rel.(3d Ed.)— 18 
 
274 SEPARATION AND DIVOECE (Cll. 7 
 
 rule has been disapproved in some cases. Since "the iniquity which 
 deprives a suitor of a right of justice in a court of equity is not 
 general iniquitous conduct, unconnected with the matter in suit, 
 but evil practice or wrongful conduct in the particular matter or 
 transaction in respect to which judicial protection or redress is 
 sought," ^^ it has been held that connivance by a husband at his 
 wife's adultery is no bar to a suit for divorce on the ground that 
 other acts of adultery committed by her without his connivance."^ 
 But it was said by the Massachusetts court that "the character 
 of the connivance, under some circumstances, may be so open, 
 gross, and revolting that the court may find that no injury has been 
 done the husband, and that, therefore, there is nothing to redress; 
 that the husband has entirely abandoned all right ' to claim that * 
 his wife should be chaste; and that he has thus consented to her 
 prior adultery. He may come before the court with such impure 
 hands that, upon the soundest considerations of public policy, his 
 divorce should be refused." ^* 
 
 To constitute connivance, it is not necessary that there be any 
 active procurement of the wrongful act. "I have no difficulty," 
 said Lord Stowell, "in saying that passive conduct is as much a bar 
 as active conspiracy." "" Where the conduct of the husband "in- 
 dicates an intention to have his wife transgress, or at least an in- 
 tention to allow her to do so, undisturbed and .unprevented," this 
 amounts to connivance."" 
 
 Though passive and permissive conduct may be sufficient, there 
 must be, at least, consent amounting to a corrupt intention to 
 constitute connivance. "Passive acquiescence would be sufficient 
 to bar the husband, providing it appeared to be done with the in- 
 tention and in the expectation that she would be guilty of the 
 crime ; but, on the other hand, it has always been held that there 
 
 B2 Woodward v. Woodward, 41 N. J. Eq. 224, 4 Atl. 424, citing 1 Pom. 
 Eq. Jur. § 399. 
 
 S3 Woodward v. Woodward, 41 N. J. Eq. 224, 4 Atl. 424 ; Morrison v. Mor- 
 rison, 142 Mass. 361, 8 N. E. 59, 56 Am. Rep. 688; VIERTEL v. VIERTEL, 
 99 Mo. App. 710, 75 S. W. 187, Cooley Cas. Persons and Domestic Relations, 137. 
 
 5 4 Morrison v. Morrison, 142 Mass. 361, 8 N. E. 59, 56 Am. Rep. 688. 
 
 65 Moorsom v. Moorsom, 3 Hagg. Ece. 87, 107. And see Rogers v. Rogers^ 
 Id. 57 ; Rix v. Rlx, Id. 74 ; Boulting v. Eoulting, 3 Swab. & T. 329 ; Cairns 
 V. Cairns, 109 Mass. 408; Morrison v. Morrison, 136 Mass. 310; Bourgeois v. 
 Chauvln, 39 La. Ann. 216, 1 South. 679. 
 
 5 8 Bourgeois v. Chauvln, 39 La. Ann. 216, 1 South. 679; Viertel v. Viertel, 
 86 Mo. App. 494. 
 
§ 105) DEFENSES 275- 
 
 must be a consent. The injury must be volenti; it must be some- 
 thing more than mere negligence, than mere inattention, than over- 
 confidence, than dullness of apprehension, than mere indifference. 
 It must be intentional concurrence in order to amount to a bar." ^^ 
 If a husband who has reason to suspect his wife of adultery merely 
 does nothing to prevent a recurrence of the act, and take steps to 
 obtain proofs, there is no connivance, '*' and even where the hus- 
 band, suspecting his wife of adultery, laid a trap for her and caught 
 her in flagrante delicto, there was no connivance."" But the law 
 does not allow temptation to be placed in a wife's way in order 
 that advantage may be taken of the consequences.''" "A husband 
 is not barred by mere permission of opportunity for adultery, nor 
 is it every degree of inattention which will deprive him of relief, 
 but it is one thing to permit and another to invite." °^ A husband 
 who endeavors to procure his wife to be lured into an act of adul- 
 tery consents to it.°^ So, where detectives employed by the hus- 
 band to procure evidence against the wife purposely induced her tO' 
 commit adultery, there was connivance, barring a divorce, though 
 the husband had not given any distinct orders to the detectives so to 
 acf 
 
 5 7 Rogers Y. Rogers, 3 Hagg. Ecc. 57 ; Eix v. Rlx, Id. 74 ; Boulting v. Boult- 
 ing, 3 Swab. & T. 329; Harris v. Harris, 2 Swab. & T. 530; Glennie v. Glen- 
 nie, 8 Jur. (N. S.) 1158 ; Gipps v. Gipps, 11 H. L. Gas. 1 ; PMUips v. Phillips, 
 1 Rob. Ecc. 144 ; Cochran v. Cochran, 35 Iowa, 477 ; Welch v. Welch, 50 Ho. 
 App. 395. Mere passive permission to misconduct in order to test fidelity is 
 not connivance. Herriford v. Herriford, 169 Ho. App. 641, 155 S. W. 855. 
 And see Lambert v. Lambert, 165 Iowa, 367, 145 N. W. 920. 
 
 ssTimmings v. Timmings, 3 Hagg. Ecc. 76; Reiersen v. Reiersen, 32 App. 
 Div. 62, 52 N. Y. Supp. 509; Robbins v. Robbins, 140 Hass. 528, 5 N. B. ' 
 837, 54 Am. Rep. 488 ; Engle v. Engle, 153 Iowa, 285, 133 N. W. 654 ; Leh- 
 man V. Lehman, 78 N. J. Eq. 316, 79 Atl. 1060; Pettee v. Pettee, 77 Hun, 
 595, 28 N. Y. Supp. 1067; Wilson v. Wilson, 154 Hass. 194, 28 N. E. 167, 12 
 L. R. A. 524, 26 Am. St. Rep. 237. 
 
 ssFarwell v. Farwell, 47 Hont. 574, 133 Pac. 958, Ann. Cas. 1915C, 78. 
 
 60 Viertel v. Viertel, 86 Ho. App. 494; Noyes v. Noyes, 194 Hass. 20, 79 N.. 
 E. 814, 120 Am. St. Rep. 517, 10 Ann. Cas. 818. 
 
 61 Timmings v. Timmings, 3 Hagg. Ecc. 76; Harris v. Harris, 2 Hagg. Ecc. 
 376. 
 
 62 Woodward v. Woodward, 41 N. J. Eq. 224, 4 Atl. 424; Noyes v. Noyes, 
 194 Hass. 20, 79 N. E. 814, 120 Am. St. Rep. 517, 10 Ann. Cas. 818. 
 
 ssRademacher v. Rademlacher, 74 N. J. Eq. 570, 70 Atl. 687. And sefr 
 McAllister v. McAllister (Sup.) 137 N. T. Supp. 833. 
 
276 SEPARATION AND DIVORCE ^h. 7 
 
 SAME— COLLUSION 
 
 106. Collusioa is any agreement between the parties whereljy they 
 seek to obtain a divorce by an imposition on the court, 
 and is ground for refusing relief. 
 
 In no case will a divorce be granted if it appears that there is 
 collusion between the parties, even though it may appear that 
 there is a valid cause for the divorce. Any agreement between hus- 
 band and wife by which they are to endeavor to obtain a divorce 
 by imposing upon the court is collusion, within the meaning of 
 this rule.^* 
 
 It is' clearly collusion for the parties to agree that one of them 
 shall institute a suit for divorce for a cause which does not exist, 
 although they may have some other ground.'" It is also collusion 
 for them to agree to suppress facts which are pertinent and mate- 
 rial; °' or to institute a suit for divorce in pursuance of an under- 
 standing whereby one of them has committed soine offense, such 
 as adultery, for the purpose of affording ground for a divorce.^' 
 And, in general, it is collusion for the parties to act in concert in 
 the conduct o£ the suit, even though there may be a valid ground for 
 divorce. °* But the husband may make the wife a reasonable allow- 
 ance while the suit is pending, in order to save the expense of an 
 application ' for alimony.®'' Collusion implies action in concert. 
 
 s4 Griffiths V. Griffiths,, 69 N. J. Eq. 689, 60 Atl. 1090; People v. Case, 241 
 111. 279, 89 N. B. 638, 25 L. R. A. (N. S.) 578 ; Branson v. Branson, 76 Neb. 
 780, 107 N. W. 1011. 
 
 as Butler V. Butler, 15 Prob. Div. 13, 32, 66; Jessop v. Jessop, 2 Swab. & 
 T. 301 ; Stokes v. Anderson, 118 Ind. 533, 21 N. B. 331, 4 L. K. A. 313. 
 
 6 6 Hunt V. Hunt, 47 Law J. Prob. Div. & Adm. 22; Barnes v. Barnes, L. 
 R. X Prob. & Div. 505 ; Jessop v. Jessop, 2 Swab. & T. 301. It is collusion to 
 suppress evidence of a valid defense. Griffiths v. Griffiths, 69 N. J. Bq. 689, 
 60 Aa. 1090. 
 
 8 7 Todd V. Todd, L. K. 1 Prob. & Div. 121 ; Crewe v. Crewe, 3 Hagg. Ecc. 
 123. 
 
 « 8 Lloyd V. Lloyd, 1 Swab. & T. 567. But see Harris v. Harris, 4 Swab. 
 & T. 232; Frank v. Prank, 178 111. App. 557; Sheehan v. Sheehan, 77 N. J. 
 Eq. 411, 77 Atl. 1063, 140 Am. St. Rep. 566. Agreements intended merely to 
 facilitate the divorce proceedings do not show collusion. Dodge v. Dodge, 
 98 App. Div. 85, 90 N. T. Supp. 438. 
 
 6 Barnes v. Barnes, L. R. 1 Prob. & Div. 505; In re Ellis' Estate, 55 Minn. 
 401, 56 N.'W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514. An agreement 
 pending suit for divorce respecting alimony, not accompanied by any under- 
 standing that the wife shall have a divorce ,or that the husband shall re- 
 
§1 107-108) DEFENSES 277 
 
 There is no collusion, therefore, where one party takes advantage 
 of a matrimonial offense by the other as a ground for divorce, 
 though the offense was committed by the other in the desire, and 
 with the hope and expectation, that such advantage would be tak- 
 en of it. In other words, the fact that one party commits an offense, 
 such as adultery or desertion, for the purpose of affording the oth- 
 er grounds for divorce, does not bar the other's right to a divorce, 
 if the other did not act in concert to afford such ground.'"* 
 
 SAME— CONDONATION. 
 
 107. Condonation is the forgiveness of a marital offense constitut- 
 
 ing a ground for divorce, and bars the right to a divorce. 
 But condonation is on the condition, implied by law when 
 not express, that the wrongdoer shall not again commit 
 that offense, and also that he shall thereafter treat the oth- 
 er with "conjugal kindness" ; and a breach of the condition 
 will revive the original offense as a ground for divorce. 
 
 108. Condonation may be by express words, if acted upon; or it 
 
 may be inferred from conduct alone. 
 
 The forgiveness or remission by one of the spouses of a marital 
 offense committed by the other is, in law, such a condonation of the 
 offense as will bar a suit for divorce therefor.''^ This doctrine not 
 only applies to adultery, but it also applies to cruelty, and to every 
 other offense that constitutes a ground for divorce.^^ 
 
 train from contesting the suit is not collusion. Eapp v. Rapp, 162 Mo. App. 
 673, 145 S. W. 114. 
 
 10 Shaw V. Gould, L. R. 3 H. L. 55; C?rewe v. Crewe, 3 Hagg. Ecc. 123; 
 TJtterton v. Tewsh, Ferg. Const. 23 ; Kibblewhlte v. Rowland, Id. 226 ; Wil- 
 mer v. Wilmer, 21 N. D. 371, 130 N. W. 1015. 
 
 'iDurant v. Durant, 1 Hagg. Ecc.'733; Westmeath v. Westmeath, 2 Hagg. 
 Ecc. Supp. 1 ; Ferrers v. Ferrers, 1 Hagg. Const. 130 ; D'Aguilar v. D'Aguilar, 
 1 Hagg. Ecc. 773; Sewall v. Sewall, 122 Mass. 156, 23 Am, Rep. 299; Gum- 
 ming V. Gumming, 135 Mass. 386, 46 Am. Rep. 476; Johnson v. Johnson, 14 
 Wend. (N. Y.) 637 ; Taber v. Taber (N. J. Oh.) 66 Atl. 1082 ; Laycock v. Lay- 
 cock, 52 Or. 610, 98 Pac. 487; Griffith v. Griffith, 77 Neb. 180, 108 N. W. 981; 
 Quincy v. Qulncy, 10 N. H. 272 ; Turnbull v. TurnbuU, 23 Ark. 615. Where 
 a wife with full knowledge condones an offense and the husbapd is not guil- 
 ty of further ofCense, she cannot in a subsequent suit against her for deser- 
 tion set up the condoned act to prevent a divorce. Davis v. Davis, 134 Ga. 
 804, 68 S. E. 594 ; 30 L. R. A. (N. S.) 73, 20 Ann. Gas. 20. 
 
 72 Gardner v. Gardner, 2 Gray (Mass.) 434 ; Glague v. Clague, 46 Minn. 461, 
 49 N. W. 198; McGurk v. McGurk (N. J. Ch.) 28 Atl. 510; Sullivan v. SulU- 
 
278 SEPARATION AND DIVORCE (Ch. T 
 
 Forgiveness Conditional 
 
 Condonation is always conditional. When the condition is not 
 expressed, the law implies a condition, not only that the particular 
 offense shall not be repeated," but also that the offender shall treat 
 the other with "conjugal kindness." ^* A breach of this condition 
 will revive the original offense as a ground for divorce, and it may 
 be relied upon for this end just as fully as if it had never been con- 
 doned." A condoned offense, whatever it may be, is therefore re- 
 vived if the wrongdoer is subsequently guilty of adultery, cruelty, 
 desertion, or any other breach of "conjugal kindness." '° Acts of 
 cruelty will revive a condoned offense, even though they may not 
 themselves be sufficient as a ground for divorce ;"and the same must 
 be true of desertion for less than the period required to make it a 
 
 van, 34 Ind. 368; Phillips v. Phillips, 27 "Wis. 252; Bingham v. Bingham 
 (Tex. Civ. App.) 149 S. W. 214 ; Murthison v. Murchison (Tex. Civ. App.) 171 
 S. W. 790 ; Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78. 
 
 TSDurant v. Durant, 1 Hagg. Bcc. 783; Davis v. Davis, 134 Ga.- 804, 68 
 S. E. 594, 30 L. R. A. (N. S.) 73, 20 Ann. Cas. 20; Kostachek v. Kostachek, 
 40 Okl. 747, 140 Pac. 1021; Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78; 
 Sewall V. Sewall, 122 Mass. 156, 23 Am. Rep. 299. 
 
 74 "The plainer reason and good sense of the implied condition is 'that 
 you shall not only abstain from adultery but shall in future treat me — ^in 
 every respect treat me [to use the words of the lavy] — with conjugal kind- 
 ness. On this condition I will oyerlook the past injuries you have done me.' " 
 Durant v. Durant, 1 Hagg. Ecc. 743. And see Westmeath v. Westmeath, 2 
 Hagg. Ecc. Supp. 1, 114; Johnson v. Johnson, 14 Wend. (N. Y.) 637; Farn- 
 ham V. Farnham, 73 111. 497 ; "Warner v. "Warner, 31 N. J. Eq. 225 ; Atherton 
 V. Atherton, 82 Hun, 179, 31 N. Y. Supp. 977; Shackleton v. Shackleton, 48 N. 
 J. Eq. 364, 21 Atl. 935, 27 Am. St. Rep. 478; Nogees v. Nogees, 7 Tex. 538, 5S 
 Am. Dec. 78 ; Egidi v. lOgidi, 37 R. I. 481, 93 Atl. 908, Ann. Cas. 1918A, 648 ; 
 Robbins v. Robbins, 100 Mass. 150, 97 Am. Dec. 91. 
 
 7 6 Cases cited supra and infra. 
 
 7 6Worsley v. Worsley, cited in 1 Hagg. Ecc. 734, 2 Lee, Ecc. 572; Durant 
 v. Durant, 1 Hagg. Ecc. 7.33; D'Aguilar v. D'AguUar, Id. 773; Bramwell v. 
 Bramwell, 3 Hagg. Ecc. 618 ; Dent v. Dent, 4 Swab. & T. 105 ; Newsome v. 
 Newsome, L. R. 2 Prob. & Div. 313; Warner v. Warner, 31 N. J. Eq. 225;, 
 Farnham v. Farnham, 73 111. 497; Odom v. Odom, 36 Ga. 286; Johnson v. 
 Johnson, 14 Wend. (N. Y.) 637; Timerson v. Timerson, 2 How. Prac, N. S. 
 (N. Y.) 526 ; Egldi v. Egidi, 37 R. I. 481, 93 Atl. 908, Ann." Cas. 1918A, 648 ; 
 Viertel v. Viertel, 123 Mo. App. 63, 99 S. W. 759; Mosher v. Mosher, 16 
 N. D. 269, 113 N. W. 99, 12 L. R. A. (N. S.) 820, 125 Am. St. Rep. 654; Ctozard 
 V. Cozard, 48 Wash. 124, 92 Pac. 935; Copsey v. Copsey, 74 Law. J. Prob. 
 40, [1905] Prob. 94, 91 Law T. 363, 20 Times Law R. 728 ; Wellman v. Well- 
 man, 178 Mich. 107, 144 N. W. 493 ; Skinner v. Skinner, 47 Ind. App. 670, 95 
 N. E. 128; Page v. Page, 167 N. C. 346, 88 S. E. 625; Hartl v. Hartl, 155 
 Iowa, 329, 135 N. W. 1007 ; Anderson v. Anderson, 89 Neb. 570, 131 N. W. 
 907, Ann. Cas. 1912C, 1; McNamara v. McNamara, 93 Neb. 190, 139 N. W. 
 1045: But compare Brown v. Brown, 129 Ga. 246, 58 S. E. 825, holding that. 
 
§§ 107-108) DEFENSES 279 
 
 ground for divorce." It was said in a Massachusetts case : "The 
 law is settled in this commonwealth, in accordance with the doctrine 
 declared by Lord Stowell and Sir John Nicholl in the English ec- 
 clesiastical courts, that any condonation by the wife of her hus- 
 band's cruelty is on the implied, if not express, condition of his 
 treating her in the future with conjugal kindness; that any breach 
 of this condition will revive the right to maintain a libel for the 
 original offense ; and that such a breach may be shown by act, word, 
 or conduct which would not of themselves prove a cause of divorce. 
 Harshness and rudeness not sufficient to maintain a libel may re- 
 ceive a different interpretation and effect upon the question of con- 
 donation after proof that the husband has previously gone to the 
 length of positive acts of cruelty." ^' 
 
 What Amounts to Condonation 
 
 Condonation may be by express words of forgiveness ; ''" but an 
 offer to forgive will not amount to condonation, unless it is accepted 
 or acted upon by the other party.*" Condonation may also be im- 
 plied from the conduct of the parties, withcfut proof of express for- 
 giveness, and even, it seems from some of the cases, though it could 
 be shown that there was no forgiveness in fact. Sexual intercourse, 
 for instance, with knowledge of a prior offense,' is such condona- 
 tion.*^ Voluntary cohabitation, also, is generally held to be proof 
 
 where acts of cruelty have been condoned, such acts will not be revived as a 
 ground of divorce except by fresh acts of cruelty. 
 
 11 Durajit V. Durant, 1 Hagg. Ecc. 743; D'Aguilar v. D'Aguilar, Id. 773; 
 Bramwell v. Bramwell, 3 Hagg. Const. 618; Farnham v. Farnham, 73 111. 
 497 ; Warner v. Warner, 31 N. J. Eq. 225 ; Threewits v. Threewits, 4 Desaus. 
 (S. C.) 560; Kostachek v. Kostachek, 40 Okl. 747, 140 Pac. 1021; Mathewson 
 V. Mathewson, '81 Vt. 173, 69 Atl. 646, 18 L. R. A. (N. S.) 300; Marshall 7. 
 Marshall, 65 Vt. 238, 26 Atl. 900 ; Bobbins v. Robbing, 100 Mass. 150, 97 Am. 
 Dec. 91. 
 
 7 8 Robbins v. Robbing, 100 Mass. 150, 97 Am. Dec. 91. 
 
 7»Beeby v. Beeby, 1 Hagg. Ecc. 789; Quincy v. Quincy, 10 N. H. 272. 
 
 80 Keats V. Keats, 1 Swab. & T. 334 ; Popkin v. Popkin, 1 Hagg. Ecc. 765, 
 note; Ferrers v. Ferrers, Id. 781, note; Quarles v. Quarles, 19 Ala; 363; 
 WolfE v. WolfC, 102 Cal. 433, 36 Pac. 767, 1037; Anderson v. Anderson, 89 
 Neb. 570, 131 N. W. 907, Ann. Oas. 1912C, 1. And see Egbers v. Egbers, 79 
 Wash. 72, 139 Pac. 767. 
 
 81 Snow V. Snow, 2 Notes of Cas. Supp. 13; Dillon v. Dillon, 3 Curt. Ecc. 
 86 ; Timmings v. Timmings, 3 Hagg. Ecc. 76 ; Rogers v. Rogers, 67 N. J. Eq. 
 534, 58 Atl. 822 ; Pitt* v. Pitts, 52 N. Y. 593 ; Quincy v. Quincy, 10 N. H. 272, 
 274 ; Doe v. Doe, 52 Hun, 405, 5 N. Y. Supp. 514 ; Burng v. Burns, 60 Ind. 
 259; Thomas v. Thomas, 2 Cold. (Tenn.) 123; Farmer v. Farmer, 86 Ala. 
 322, 5 South. 434 ; Sparks v. Sparks, 94 N. O. 527 ; Eggerth v. Eggerth, 15 Or. 
 626, 16 Pac. 650 ; Auld v. Auld (Super. N. X.) 16 N. Y. Supp. 803 ; Tilton v. 
 
280 SEPARATION AND DIVORCE (Ch. 7 
 
 of condon;ation ; *^ but condonation will not necessarily be implied 
 from the fact that the husband and wife continued to live together 
 if there was no sexual intercourse.*^ Sexual intercourse will be pre- 
 sumed where the husband and wife are living together, but such 
 presumption may be rebutted.** 
 
 Because of the dependent position of the wife, condonation will 
 not be so readily inferred from conduct against her as it would be 
 against the husband.*^ 
 
 Same — Knowledge of Offense 
 
 Condonation necessarily implies knowledge of the offense com- 
 mitted. Conduct, as, for instance, continued cohabitation and inter- 
 course, cannot be construed as condonation if there was no knowl- 
 
 Tilton, 29 S. "W. 290, 16 Ky. Law Eep. 538 ; Shivey v. Shivey, 87 Ark. 175, 
 112 S. W. 369 ; Johnson v. Johnson, 78 N. J. Eq. 507, 80 Atl. 119 ; Shackle- 
 ton V. Shackleton, 48 N. J. Eq. 364, 21 Atl. 935, 27 Am. St. Eep. 478. But 
 see Bohnert v. Bohnert, 95 Cal. 444, 30 Pac. 590, where it was held that a 
 single act of sexual intercourse after the commencement of a suit for a di- 
 vorce for adultery was not alone sufficient to constitute condonation. See 
 Hall V. Hall, 60 Law J. Prob., Div. & Adm. 73. The rule should not be en- 
 forced so rigorously against the wife as against the husband. Johnson v. 
 Johnson, 78 N. J. Eq. 507, 80 Atl. 119 ; Leech v. Leech, 82 N. J. Eq. 472, 89 
 Atl. 51. 
 
 82 Beeby v. Beeby, 1 Hagg. Ecc. 789; Johnson v. Johnson, 14 Wend. (N. 
 Y.) 637; Anon., 6 Mass. 147; Eames v. Eames, 133 111. App. 665; MeDuffee 
 V. MtDuffee, 169 Mich. 410, 135 N. W. 242 ; Bridge v. Bridge (N. J. Oh.) 9S 
 Atl. 690 ; Rogers v. Rogers, 81 Wash. 502, 142 Pac. 1150 ; Phelps v. Phelps, 
 28 App. D. O. 577; Holschbach v. Holschbach, 184 Mo. App. 247, 114 S. W. 
 1035 ; Clague v. Clague, 46 Minn. 461, 49 N. W. 198 ; NuUmeyer v. NuUmeyer, 
 49 111. App. 573 ; Shivey v. Shivey, 87 Ark. 173, 112 S. W. 369 ; In re Adams' 
 Estate, 161 Iowa, 88, 140 N. W. 872 ; Johnsen v. Johnsen, 78 Wash. 423, 139 
 Pac. 189, 1200 ; Land v. Martin, 46 La. Ann. 1246, 15 South. 657 ; McGurk v. 
 McGurk (N. J. Ch.) 28 Atl. 510. But the fact that a wife put up with mis- 
 treatment in the hope of cessation will not prevent her from showing such 
 treatment in a baseless action for divorce brought by the husband. Bliss v. 
 Bliss, 161 Mo. App. 70, 142 S. W. 1081. And a wife does not comdone hus- 
 band's adultery by continuing to live with him in the belief that his miscon- 
 duct had ceased, when in fact it had not. Howard v. Howard, 188 Mo. App. 
 564, 176 S. W. 483. 
 
 83 Dance v. Dance, 1 Hagg. Ecc. 794, note; Westmeath v. Westmeath, 2 
 Hagg. Ecc. Supp. 1 ; Guthrie v. Guthrie, 26 Mo. App. 566 ; Harnett v. Har- 
 nett, 59 Iowa, 401, 13 N. W. 408; Jacobs v. Tobelman, 36 La., Ann. 842; 
 Denison v. Denison, 4 Wash. 705, 30 Pac. 1100; Lindsay v. LLodsay, 226 111. 
 309, 80 N. E. 876. 
 
 84 Beeby v. Beeby, 1 Hagg. Ecc. 789 ; Snow v. Snow, 2 Notes of Gas. Supp. 
 1, 13 ; Burns v. Burns, 60 Ind. 259 ; Phelps v. Phelps,- 28 App. D. O. 577. 
 
 soD'Aguilar v. D'Aguilar, 1 Hagg. Ecc. 773; Beeby v. Beeby, Id. 789; 
 Kirkwall v. Kirkwall, 2 Hagg. Const. 277; Gardner v. Gardner, 2 Gray 
 (Mass.) 434; Wood v. Wood, 2 Paige (N. Y.) 108; Bowie v. Bowie, 3 Md. Ch. 
 
§ 109) DEFENSES 281 
 
 edge of the offens'e claimed to have been condoned.^' Mere sus- 
 picion is not knowledge. Cohabitation under circumstances which 
 might excite suspicion merely, but without actual knowledge, is not 
 condonation.^^ That a wife retains confidence in her husband, or a 
 husband in his wife, notwithstanding rumors of his or her adultery, 
 and circumstances tending to show that they may be true, ought not 
 to be treasured up and relied upon as condonation.'^ Forgiveness 
 of one act is not forgiveness of other unknown acts ; but, when the 
 terms of the forgiveness are general, it is not necessary that there 
 should be actual knowledge of each distinct offense.'" 
 
 SAME— RECRIMINATION 
 
 109. Recrimination is a countercharge in a suit for divorce that the 
 complainant has been guilty of an offense constituting a 
 ground for divorce. Adultery is universally, and any con- 
 duct which is ground for divorce is in most states, a com- 
 plete bar to a divorce when set up in recrimination. 
 
 In most states it is a good defense in a suit for divorce that the 
 complainant has been guilty of any conduct which constitutes a 
 ground for divorce. This is the doctrine of recrimination. In 
 some states, as will presently be seen, the doctrine is more or less 
 restricted by statute or by judicial decision; and the extent to 
 which acts of one spouse constitutii g a ground for divorce may be 
 set up in bar of a suit for divorce brought by the other is not the" 
 same in all states. 
 
 The doctrine of recrimination has its foundation in the principle 
 that one who asks relief must come into court with clean hands. In 
 
 51; Armstrong v. Armstrong, 32 Miss. 279; Home v. Horne, 72 N. 0. 531; 
 Cochran v. Cochran, 35 Iowa, 477 ; Shackleton v. Shackleton, 48 N. J. Bq. 
 364, 21 Atl. 985, 27 Am. St. Rep. 478 ; CLAGUE v. CLAGUE, 46 Minn. 461, 49 
 N. W. 198, Cooley Cas. Persons and Domestic Relations, 189. 
 
 8« Durant v. Durant, 1 Hagg. Ecc. 733 ; Bramwell v. Bramwell, 3 Hagg. 
 Const. 629; Anon., 6 Mass. 147 ; Rogers v. Rogers, 122 Mass. 423 ; Delliber v. 
 Delliber, 9 Conn. 233 ; Laycock v. Laycock, 52 Or. 610, 98 Pac. 487 ; Howard 
 V. Howard, 188 Mo. App. 564, 176 S. W. 488 ; Odom v. Odom, 36 Ga. 286. 
 
 87 Qiiincy v. Quincy, 10 N. H. 272 ; Poison v. Poison, 140 Ind. 310, 39 N. 
 B, 498 ; Shackleton v. Shackleton, 48 N. J. Eq. 364, 21 Atl. 935, 27 Am. St. 
 Rep. 478; Welch v. Welch, 50 Mo. App. 395. 
 
 8 8 Poison V. Poison, 140 Ind. 310, 39 N. B. 498. 
 
 8 9 Rogers v. Rogers, 122 Mass. 423; Shackleton v, Shackleton, 48 N. J. Eq. 
 364, 21 Atl. 935, 27 Am. St. Rep. 478. 
 
282 SEPARATION AND DIVOECB (Ch. T 
 
 Hoff V. Hoff °° the complainant asked a divorce" on the ground of 
 extreme cruelty. The defendant, with an answer denying cruelty 
 filed a cross-bill charging the complainant with extreme cruelty. 
 The court found both cases made out, and awarded a divorce on 
 each bill. On appeal it was held that, when the court found that 
 "each party had been guilty of such conduct as under the statute 
 was cause for divorce, he should have dismissed both bills, and left 
 the parties where their misbehavior had placed them." "A proper- 
 administration of justice," it was said, "does not require that courts 
 shall occupy their time and the time of people who are so unfortu- 
 nate as to be witnesses of the misdoings of others in giving equita- 
 ble relief to parties who have no equities. And it is as true of 
 divorce cases as of any others that a party must come into a court 
 of equity with clean hands. Divorce laws are made to give relief 
 to the innocent, not to the guilty." °^ 
 
 In most states the statutes have merely prescribed the grounds 
 for divorce, and have made no provision at all respecting recrimina- 
 tion. Under these circumstances, the courts assume that the Legis- 
 lature intended to adopt the general principles which had governed 
 the ecclesiastical courts in England in granting divorces from bed 
 and board, so far as these principles are applicable and are found 
 to be reasonable.'^ In some states the subject of recrimination is 
 covered by the statute, the Legislature having undertaken to speci- 
 fy what conduct may be set up by way of recrimination ; and, of 
 course, in these states the statute is controlling.''* 
 
 The Conduct Constituting Ground for Recrimination 
 
 In the English ecclesiastical courts the only conduct on the part 
 of the complainant that could be set up in recrimination to defeat 
 
 »o 48 Mich. 281, 12 N. W. 160. 
 
 91 See, also, Beeby v. Beeby, 1 Hagg. Ecc. 789; Otway v. Otway, 13 Prob. 
 Div. 141; Derby v. Derby, 21 N. J. Eq. 36; Hubbard v. Hubbard, 74 Wis. 
 650, 43 N. W. 655, 6 L. R. A. 58 ; Hall v. Hall, 69 W. Va. 175, 71 S. E. 103, 
 34 L. R. A. (N. S.) 758; Day v. Day, 71 Kan. 385, 80 Pac. 974, 6 Ann. Cas.,' 
 169; Stoneburner v. Stoneburner, H Idaho, 603, 83 Pac. 938; Benedicto v. 
 Dela Rama, 3 Phil. Rep. 35. Though the rule that one who comes into equity 
 must come with clean hands would, where both parties show grounds for di- 
 vorce, render neither entitled to a decree, such rule is, on grounds of pub- 
 lic policy, or the peculiar exigencies of the case, often relaxed, and compara- 
 tive rectitude is considered. Weiss v. Weiss, 174 Mich. 431, 140 N. W. 587. 
 And see Johnsen v. Johnsen, 78 Wash. 423, 139 Pac. 189, 1200. 
 
 02 Morrison v. Morrison, 142 Mass. 361, 8 N. E. 59, 56 Am. Rep. 688; Rob- 
 bins V. Robbins, 140 Mass. 528, 5 N. E. 837, 54 Am. Rep. 488. 
 
 »8 Post, p. 285. 
 
§ 109) DEFENSES 283 
 
 his right to a divorce was adultery.** And in some states the of- 
 fense set up in recrimination must be like in kind to that which is 
 the ground on which divorce is claimed."" The rule, however, is 
 different under the modern English statutes ; "^ and it is not recog- 
 nized in many states in this country, unless expressly declared by 
 statute. The general rule in this country is, as stated lay the Massa- 
 chusetts court, that "a suitor for divorce cannot prevail if open to 
 a valid charge, by way of recrimination, of any of the causes of di- 
 vorce set out in the statute. Recrimination as a bar to divorce is 
 not limited to a charge of the same nature as that alleged in the 
 libel. It is sufficient if the recrimination charges any of the causes 
 for divorce so declared in the statute. The general principle which 
 governs in a case where one party recriminates is that recrimination 
 must allege a cause which the law declares sufficient for a di- 
 vorce." °'' According to this rule, in a suit for divorce, whatever 
 may be the ground alleged and relied upon, the defendant may set 
 up by way of recrimination any conduct on the part of the com- 
 plainant which the statute declares a ground for divorce; as, for 
 instance, cruelty or desertion or drunkenness in a suit for divorce 
 on the ground of adultery, and vice versa, or cruelty in a suit for 
 divorce on the ground of desertion, and vice versa.''* 
 
 9* Harris v. Harris, 2 Hagg. Ecc. 376, 411 ; Coeksedge v. Oocksedge, 1 Rob. 
 Bcc. 90. 
 
 9 5 Bast V. Bast, 82 111. 584; Huling v. Huling, 38 111. App. 144; Zimmerman 
 V. Zimmerman, 242 111. 552, 90 N. E. 192: Hughes v. Hughes, 138 111. App. 
 654; Bancroft v. Bancroft, 4 Boyce (Del.) 9, 85 Atl. 561; Kichardson v. 
 Richardson, 4 Port. (Ala.) 467, 30 Am. Dec. 538. Misconduct of the husband 
 other than cruelty or infidelity cannot be set up as a bar to his suit for di- 
 Torce for adultery. Seibert v. Seibert (N. J. Ch.) 83 Atl. 230. 
 
 86 Otway V. Otway, 13 Prob. Div. 141. 
 
 9^ Morrison v. Morrison, 142 Mass. 361, 8 N. E. 60, 56 Am. Rep. 688 ; CUSH- 
 MAN V. CUSHMAN, 194 Mass. 38, 79 N. E. 809, Oooley Oas. Persons and Do- 
 mestic Relations, 143. 
 
 9 8 Hall V. Hall, 4 Allen (Mass.) 39; Clapp v. Olapp, 97 Mass. 531; Handy 
 V. Handy, 124 Mass. 394 ; Gumming v. Gumming, 135 Mass. 386, 46 Am. Rep. 
 476 ; Redington v. Redington, 2 Colo. App. 8, 29 Pac. 811 ; PEASE v. PEASE, 
 72 Wis. 136, 39 N. W. 133, Gooley Gas. Persons and Domestic Relations, 141; 
 Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655, 6 L. R. A. 58 ; Church v. 
 Church, 16 R. I. 667, 19 Atl. 244, 7 L. R. A. 385; Grim v. Grim, 66 Or. 258-^ 
 134 Pac. 13; CoUett v. GoUett, 170 Mo. App. 590, 157 S. W. 90; Bgbers v. 
 Egbers, 79 Wash. 72, 139 Pac. 767; Wilson v. Wilson, 89 Neb. 749, 132 N. W. 
 401 ; Green v. Green, 125 Md. 141, 93 Atl. 400, L. R. A. 1915E, 972, Ann. Oas. 
 1917A, 175 ; Nagel v. Nagel, 12 Mo. 53 ; Ryan v. Ryan, 9 Mo. 539 ; Shacketit 
 V. Shackett, 49 Vt. 195; Conant v. Oonant, 10 Gal. 249, 70 Am. Dec. 717; 
 Johns V, Johns, 29 Ga. 718; Ribet v. Ribet, 89 Ala. 348; Holmes v. Holmes, 
 
284 SEPARATION AND DIVORCE (Ch. 7 
 
 In Pease v. Pease/" a husband sued for divorce on the ground of 
 his wife's adultery, and the wife was permitted to defeat the suit 
 by showing, in recrimination, that he had been guilty of cruelty 
 that would have entitled her to a divorce. "We do not perceive," 
 said the court, "upon what logical principle the court could grant 
 redress to the husband for the adultery of the wife when he him- 
 self has been guilty of an offense which would give her a right to 
 an absolute divorce were she was without fault. Both parties have 
 violated the marriage contract, and can the court look with more 
 favor upon the breach of one than the other? It is an unquestioned 
 principle that, where one party is shown to have been guilty of 
 adultery, such party cannot have a divorce for the adultery com- 
 mitted by the other.^ * * * j^ the forum of conscience, adul- 
 tery of the wife may be regarded as a more heinous violation of 
 social duty than cruelty by the husband. But the statute treats 
 them as of the same nature and same grade of delinquency. It is 
 true, the cruelty of the husband does not justify the adultery of 
 the wife; neither would his own adultery; but still the latter has 
 ever been held a bar. And where both adultery and cruelty are 
 made equal offenses^ attended with the same legal consequences, 
 how can the court, in the mutual controversy, discriminate between 
 the two, and give one the preference over the other? It seems to 
 us that, as the law has given the same effect to the one offense as 
 the other, the court should not attempt to distinguish between 
 them, but treat them alike, and hold one a bar to the other." 
 
 It has been held that recrimination, to constitute a valid defense, 
 must arise out of the fact that the acts or conduct for which the 
 complainant seeks a divorce were induced by or in retaliation of 
 complainant's conduct, relied upon in recrimination.'' This, how- 
 ever, is contrary to the great weight of authority. To allow any 
 
 Walk. (Miss.) 474; Adams v. Adams, 17 N. J. Eq. 324; Ee;d v. Reid, 21 
 N. J. Bq. 331; Harvey v. Harvey (N. J. Ch.) 7 Atl. 871; Wilson v. Wilson, 
 40 Iowa, 230; Stoneburner v. Stoneburner, 11 Idaho, 603, 83 Pac. 938 
 
 »" PEASE v. PEASE, 72 Wis. 136, 39 N. W. 133, Cooley Cas. Persons and 
 Domestic Relations, 141. 
 
 1 Proctor V. Proctor, 2 Hagg. Const. 292 ; Brisco v. Brisco, 2 Add. Ecc. 
 259; Astley v. Astley, 1 Hagg. Ecc. 714; Wood v. Wood, 2 Paige (N. X.) 108; 
 Smith V. Smith, 4 Paige (N. Y.) 432, 27 Am. Dec. 75; Smith v. Smith, 19 
 Wis. 522 ; Mattos v. Mattox, 2 Ohio, 233, 15 Am. Dec. 547 ; Christianberry v. 
 Christianberry, 3 Blackf. (Ind.) 202, 25 Am. Dec. 96 ; Home v. Home, 72 N. 
 C. 530; Haines v. Haines, 62 Tex. 216; Plavell v. Flavell, 20 N. J. Eq. 211; 
 Adams v. Adams, 17 N. J. Eq. 324 ; Reid v. Eeld, 21 N. J. Eq. 331. 
 
 2 Trigg V. Trigg (Tex.) 18 S. W. 313. 
 
§ 109) DEFENSES 285 
 
 such doctrine would exclude the charge of adultery by way of 
 recrimination in a suit for divorce on the ground of adultery. 
 
 Same — Statutes Governing Recrimination 
 
 In some of the states the subject of recrimination is entirely cov- 
 ered by the statutes, and no act can be set up by way of recrimina- 
 tion unless the case comes within the statute. In Minnesota it is 
 provided that, "in any action brought for a divorce on the ground of 
 adultery," the court may deny a divorce "when it is proved that 
 the plaintiff has also been guilty of adultery." It has been held 
 under this statute that the adultery of the plaintiff cannot be set 
 up by way of recrimination, unless the adultery of the defend- 
 ant is the ground of divorce relied upon.^ In other words, under 
 such a statute we have the absurd result that, while adultery 
 by the husband will b&r a suit by him for a divorce for the wife's 
 adultery, it will not bar a suit by him for a divorce on the ground 
 of some less heinous offense by the wife, such as desertion, cruel- 
 ty, or drunkenness. It would have been better if the Legisla- 
 ture had left the question to the courts to be determined on prin- 
 ciple. So, in Pennsylvania, where a statute provided that if the 
 defendant in a divorce suit should allege and prove certain things, 
 they should be a good defense and a perpetual bar, it was held 
 that no other defense than those mentioned in the statute could 
 be interposed.* 
 
 In a number of states it is expressly declared by statute, in ac- 
 cordance with the general rule obtaining both in England and in 
 this country, even in the absence of statutory provision, that a di- 
 vorce shall not be granted on the ground of adultery, when both 
 parties are guilty of such an offense. In a few states it is provided 
 that there shall be no divorce for any cause when the complainant 
 was guilty of "like conduct." If such a statute is to be strictly con- 
 strued, the only acts that can be set up by way of recrimination 
 would be adultery when, and only when, a divorce is sought on the 
 ground of adultery; desertion when a divorce is sought on the 
 ground of desertion ; cruelty when a ' divorce is sought on the 
 ground of cruelty, etc' It is doubtful, however, whether the stat- 
 ute should be so strictly construed, for the words "like conduct" 
 
 3 Buerfening v. Buerfening, 23 Minn. 563. 
 *JRlstine v. Eistine, 4 Rawle (Pa.) 460. 
 
 5 There have been, and perhaps there are now, such statutes in Michigan, 
 Nebraslta, Wyoming, and Arizona. Stim. Am. St. Law, § 6217. 
 
286 SEPARATION AND DIVORCE (Gh. 7 
 
 might well be taken to mean conduct constituting ground for di- 
 vorce.* 
 
 Same — Conduct Condoned 
 
 As to whether an offense which has been condoned can be set up 
 by way of recrimination, there has been some conflict in the author- 
 ities. Perhaps in no case has the offense of cruelty or desertion 
 been allowed as a defense after condonation. The conflict has 
 arisen in the case of adultery. In England, by statute, the courts 
 are given a discretionary power to refuse a divorce on the ground of 
 adultery, if the complainant has been guilty of adultery during the 
 marriage ; and some of the judges have, in the exercise of this dis- 
 cretion, refused a divorce on the ground of adultery, because of 
 adultery by the complainant which the defendant had condoned.^ 
 Authorities in New York are to the same effect.* By the better 
 opinion, however, both in England and in this country, and wheth- 
 er there is any statute on the subject or not, adultery by one spouse, 
 if it has been condoned by the other, is no bar to a suit for a divorce 
 for the subsequent adultery of the other." An offense, when it is 
 condoned, ceases to be a ground for a divorce, and for this reason, 
 if for no other, it is not ground for recrimination. The question was 
 fully considered by the Massachusetts court in Gumming v. Gum- 
 ming ; ^° and after a review of the authorities, and the reasons for 
 
 6 See HofiE v. HofC, 48 Mich; 281, 12 N. "W. 160, In this case the divorce 
 was aslied on the ground of extreme cruelty, and extreme cruelty was the 
 conduct set up by way of recrimination, so that it was strictly within the 
 words of the statute. But the language of the court makes it clear that the 
 broader view was taken of the statute. And see Morrison v. Morrison, 64 
 Mich. 53. 30 N. W. 903. 
 
 ■! Seller v. Seller, 1 Swab. & T. 482 ; Goode v. Goode, 2 Swab. & T. 253. 
 
 8 Wood V. Wood, 2 Paige (N. X.) 108 ; Morrell v. Morrell, 1 Barb. (N. X.) 
 318. 
 
 9 Gumming v. Gumming, 135 Mass. 386, 46 Am. Rep. 476 ; Anichini v. Ani- 
 chini, 2 Curt. Ecc. 210; Storms v. Storms, 71 N. J. Eq. 549, 64 Atl. 700; 
 Talley v. Talley, 215 Pa. 281, 64 Atl. 523; Jones v. Jones, 18 N. J. Eq. 33, 
 90 Am. Dec, 607; Masten v. Masten, 15 N. H. 159. See Bleck v. Bleck, 27 
 Hun (N. Y.) 296. In Gumming v. Gumming, supra, the rule was applied in 
 the adultery by the wife, which had been condoned by the husband. "An 
 act of adultery committed by the husband, and forgiven for years, should not 
 be held to compel the husband to submit without redress to the faithlessness 
 and unrestrained profligacy of his wife. The penalty is too severe for a 
 forgiven offense. It is better to hold that, when the erring party is re- 
 ceived back and forgiven, the marriage contract is renewed, and begins as 
 res Integra, and that it is for the party, and not for the courts, to forgive 
 the new offense." Jones v. Jones, supra. 
 
 10 135 Mass. 386, 46 Am. Rep. 476. 
 
§ 110) EXTRATERRITORIAL EFFECT OF DIVORCE 287 
 
 the rule, it was held that the court should exercise no discretion 
 in the matter, but should apply the rule in all cases. Even where 
 a statute expressly provides, as it does in some states, that a di- 
 vorce shall not be granted on the ground of adultery where both 
 parties have been guilty, it does not seem that the statute should 
 be construed as applying to adultery that has been condoned.^^ 
 
 EXTRATERRITORIAL EFFECT OF DIVORCE 
 
 110. A decree of divorce, rendered in accordance with the law of 
 the forum by a court of competent jurisdiction, is valid 
 everywhere, and will be given full force and effect in all 
 other states. This rule is, however, subject to' the excep- 
 tion that the decree is subject to collateral attack for want 
 of jurisdiction. 
 
 Under and by virtue of the "full faith and' credit" clause of the 
 federal Constitution,'^^ decrees of divorce, rendered by a court of 
 competent jurisdiction and valid when rendered, are conclusive 
 in every other state. This provision, however, does not preclude an 
 inquiry as to the jurisdiction, in so far as it rests on the domicile 
 of the parties, of the court rendering the decree. ^^ It follows J;hat, 
 as the court has jurisdiction when both parties are domiciled in 
 the state where the divorce is sought,'^* the decree of divorce, if val- 
 id there, is valid everywhere ; ^^ and, on the other hand, as the 
 
 11 See dictum in Gumming v. Gumming, 135 Mass. 386, 46 Am. Rep. 476, 
 and in Jones v. Jones, 18 N. J. Eq. 33, 90 Am. Dec. 607. 
 
 12 Const. U. S. art. 4, § 1, providing that full faith and credit shall be given 
 in each state to the public acts, records, and judicial proceedings of every 
 other state. Ditson v. Dltson, 4 K. I. 87. 
 
 13 HADDOCK v. HADDOCK, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 
 Ann. Gas. 1, Gooley Gas. Persons and Domestic Relations, 144; Hood v. 
 State, 56 Ind. 263, 26 Am. Rep. 21; Hunt v. Hunt, 72 N. T. 217, 28 Am. 
 Rep. 129; Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 Atl. 684, Ann. Gas. 
 1916B, 920. 
 
 i*Ante, p.- 244. 
 
 15 Hall V. Hall, 139 App. Div. 120, 123 N. T. Supp. 1056, reversing 67 Misc. 
 Rep. 267, 122 N. Y. Supp. 401; Guggenheim v. Wahl, 203 N. Y. 390, 96 N. 
 E. 72p, Ann. Gas. 1913B, 201 ; Zentzis v. Zentzls, 163 Wis. 342, 158 N. W. 284 ; 
 Hood V. Hood, 11 Allen (Mass.) 196, 87 Am. Dec. 709; Burlen v. Shannon, 
 115 Mass. 438 ; Gheely v. Clayton, 110 V. S. 701, 4 Sup. Ct. 328, 28 L. Ed. 298 ; 
 McGill V. Deming, 44 Ohio St. 645, 11 N. B. 118. See, also, Atherton v. Ather- 
 ton, 181 U. S. 155, 21 Sup. Gt. 544, 45 L. Ed. 794, reversing 155 N. Y. 129, 
 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650. So, where the parties both 
 
288 SEPARATION AND DIVORCE (Ch. 7 
 
 court has no jurisdiction if neither party is domiciled in the state 
 where divorce is sought,^" the decree, whether regarded as valid 
 in that state or not, is of no force in other states.^'' In accordance 
 with these principles it has been held that the dissolution of an 
 Indian marriage contract according -to the tribal laws and customs 
 will be upheld, in the absence of a federal statute invalidating such 
 laws and customs.^^ So, too, a divorce rendered in a foreign coun- 
 try, if valid according to the law of that country, will be recognized 
 by our courts," if it appears that the jurisdiction to grant a divorce 
 according to the foreign law existed.^" 
 
 It may be, however, that only one of the parties is domiciled in 
 the state when divorce is sought. As to the effect of the decree in 
 such cases, there is a great conflict of opinion. The general rule 
 seems to be that, if the defendant does not reside jn the state where 
 suit is brought, the plaintiff must reside there or the court will 
 have no jurisdiction.^^ The conflict in this, class of cases grows 
 out of the difference of opinion as to the nature of the proceeding 
 for divorce, viz., whether it is a proceeding in reiti or a proceeding 
 
 appear and submit to the jurisdiction of the court, the decree is valid. Bled- 
 soe V. Seaman, 77 Kan. 679, 95 Pac. 576. 
 16 Ante, p. i!45. 
 
 17 State V. Armington, 25 Minn. 29; Barber v. Root, 10 Mass. 260; People 
 V. Dawell, 25 Mich. 247, 12 Am. Eep. 260. A decree of divorce by a court 
 in Nevada undertaking to dispose of the marriage status of spouses not 
 residents there would be a nullity, as that state has no power either by 
 legislative act or by decree of its court to fix the matrimonial status of one 
 only transiently commorant therein. Lister v. Lister, 86 N. J. Eq. 30, 97 
 Atl. 170. 
 
 18 La Framboise v. Day, 136 Minn. 239, 161 N. W. 529, L. R. A. 1917D, 571; 
 James v. Adams, 56 Okl. 450, 155 Pae. 1121. 
 
 i» Jewish divorces, granted by rabbis in Russia and Rumania, being valid 
 there, are valid here. In re Spondre's Estate, 98 Misc. Rep. 524, 162 N. Y. 
 Supp. 943; Miller v. Miller, 70 Misc. Rep. 368, 128 N. Y. SUpp. 787. The 
 law of Turkey governing the marital status of a Christian man and woman 
 domiciled there, that the act of the wife renouncing Christianity, and em- 
 bracing the Mohammedan religion, and marrying a Mohammedan, nullifies 
 the former marriage, will be given force in Massachusetts. Kapiglan v. Der 
 Minassian, 212 Mass. 412, 99 N. E. 264, Ann. Cas. 1913D, 535. 
 
 20 See Saperstone v. Saperstone, 73 Misc. Rep. 631, 131 N. Y. Supp. 241, 
 where a rabbinical divorce was refused recognition on the ground that the 
 Russian rabbi did not have jurisdiction. 
 
 21 Gildersleeve v. Gildersleeve, 88 Conn. 689, 92 Atl. 684, Ann. Cas. 1916B, 
 920 ; Dunham y. Dunham, 162 111. 589, 44 N. E. 841, 35 L. R. A. 70 ; Adams 
 v. Adams, 154 Mass. 290, 28 N. E. 260, 13 L. R. A. 275; People v. Dawell, 
 25 Mich. 247, 12 Am. Rep. 260; HofEman v. Hoffman, 46 N. Y. 30, 7 Am. 
 Rep. 299 ; Lister v. Lister, 86 N. J. Eq. 30, 97 Atl. 170. 
 
§ 110) EXTRATEBKITORIAL EFFECT OF DIVOECE 289 
 
 in personam." Regarding the actual subject-matter of the litiga- 
 tion as the marriage status, the general do'ctrine is that the proceed- 
 ing is in rem ; the status being the res.^^ This doctrine has, how- 
 ever, been modified in spme jurisdictions, where it has been recog- 
 nized that the proceeding is not strictly in rem, but contains a per- 
 sonal element. In these jurisdictions the proceeding is regarded as 
 quasi in rem.^* 
 
 It is evident that, in cases where only one party is domiciled in 
 the state where divorce is sought, there is only partial jurisdiction 
 of the res. On the view the courts have taken of the nature of 
 divorce proceedings as in rem or in personam depends the decision 
 when the question of the extraterritorial effect of the decree has 
 arisen. In some states the courts, regarding the proceeding as one 
 in rem, have held that only such notice to the nonresident defend- 
 ant is necessary as is required by the local law, and that the decree, 
 so rendered is binding in all courts.^^ 
 
 22 A proceeding in personam is one which seeks to fix a personal liability 
 on the defendant, such as an action to recover a money judgment. A pro- 
 ceeding in rem, on the other hand is aimed only at defendant's property or 
 something within the court's jurisdiction. A judgment in personam requires 
 personal service on the defendant within the limits of the court's jurisdiction, 
 while a judgment in rem does not require, service within the jurisdiction, 
 except on the thing itself; service on the defendant outside the jurisdiction 
 by publication or otherwise being generally sufficient. See Cross v. Arm- 
 strong, 44 Ohio St. 613, 10 N. B. 160. 
 
 23 McGUl v. Deming, 44 Ohio St. 645, 11 N. E, 118 ; Ellison v. Martin, 53 
 Mo. 575; Dunham v. Dunham, 162 111. 589, 44 N. E. 841, 35 L. R. A. 70; 
 Butler V. "Washington, 45 La. Ann. 279, 12 South. 356, 19 L. K. A. 814 ; In re 
 BlUs' Estate, 55 Minn. 401, 56 N. W. 1056, 28 L. R. A. 287, 43 Am. St. Rep. 
 514. 
 
 2* Doughty V. Doughty, 27 N. J. Eg. 315; McFarlane v. McFarlane, 43 Or. 
 477, 73 Pac. 203, 75 Pac. 139. 
 
 25 Difson V. Ditson, 4 R. I. 87, is the leading case. The doctrine has been 
 followed and approved in Kline v. Kline, 57 Iowa, 386, 10 N. W. 825, 42 Am. 
 Rep. 47; Thurston v. Thurstoii, 58 Minn. 279, 59 N. W. 1017; Doerr v. For- 
 sythe, 50 Ohio St. 726, 35 N. E. 1055, 40 Am. St. Rep. 703 ; Rodgers v. Rodgers, 
 56 Kan. 483, 43 Pac. 779; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 
 546; Howard v. Strode, 242 Mo. 210, 146 S. W. 792, Ann. Gas. 1913C, 1057; 
 Searles v. Searles, 140 Minn. 385, 168 N. W. 133; Kenner v. Kenner, 13,9 
 Tenn. 211, 201 S. W. 779, L. B. A. 1918E, 587, rehearing denied 139 Tenn. 
 700, 202 S. W. 723, L. B. A. 1918E, 587; Dunham v. Dunham, 162 111. 589, 
 44 N. E. 841, 35 L. B. A. 70. In these cases it was, however, conceded that a 
 decree for alimony, or for custody of the children, or affecting property rights, 
 was not conclusive, as such decrees were in personam. But see Hawkins v. 
 Bagsdale, 80 Ky. 353, 44 Am. Rep. 483, where the rule was under the 
 statute extended even to a decree affecting dower. On the general doctrine, 
 
 ' TUT.P.& D.Rbl.(3d Ed.)— 19 
 
290 SEPARATION AND DIVORCE (Ch. 7 
 
 In New Jersey and a few other states the courts have taken the 
 position that a proceeding for divorce is quasi in rem, not requiring 
 actual personal service within the jurisdiction of the court, and that 
 the service is sufficient to render the decree binding extraterritorial- 
 ly if the best practicable service is made, such as service by mail 
 or personal service outside the territorial jurisdiction of the court.^" 
 The courts of New York and some other states' have adopted the 
 contrary rule, and, on the theory that the proceeding for divorce 
 is in personanl, have held that a divorce obtained in a state where 
 the plaintiff alone is domiciled is of no extraterritorial effect, if 
 the defendant were not personally served with notice within the 
 jurisdiction of the court granting the divorce, or voluntarily ap- 
 peared and submitted to the jurisdictioi>,^' unless the state of the 
 
 see, also, Hilbish v. Hattle, 145 Ind. 59, 44 N. E. 20, 33 L,. R. A. 783, where, 
 however, there seems to have been personal service on . the defendant. 
 
 2 6 Felt V. Felt, 59 N. J. Eq. 606, 45 Atl. 105, 49 Atl. 1071, 47 L. R. A. 546, 
 83 Am. St. Rep. 612; Doughty v. Doughty, 28 N. J. Eq. 581; Magowan v. 
 Magowan, 57 N. J. Eq. 195, 39 Atl. 364. See, also. Smith v. Smith, 43 La. 
 Ann. 1140, 10 South. 248, and Van Orsdal v. Van Orsdal, 67 Iowa, 35, 24 N. W. 
 579, in which personal service was had outside the jurisdiction of the court 
 rendering the decree. The New Jersey rule has also been approved in 
 Massachusetts. Burlen v. Shannon, 115 Mass. 438; Loker v. Gerald, 157 
 Mass. 42, 31 N. E. 709, 16 L. R. A. 49T, '34 Am. St. Rep. 252. Compare State 
 V. Armington, 25 Minn. 29. 
 
 2 7 People V. Baker, 76 N. Y. 78, 32 Am. Rep. 274, is the leading case. See 
 also. In re Kimball, 155 N. Y. 62, 49 N. E. 331; Williams v Williams, 130 
 N. Y. 193, 29 N. B. 98, 14 L. R. A. 220, 27 Am. St. Rep. 517; Ransom v. Ran- 
 som, 54 Misc. Rep. 410, 104 N. Y. Supp. 198 ; Cross v. Cross, i08 N. Y. 628, 
 15 N. E. 333 ; Barber v. Barber, 89 Misc. Rep. 519, 151 N. Y. Supp. 1064 ; 
 Olmsted v. Olmsted, 190 N. Y. 458, 83 N. E. 569, 123 Am. St. Rep. 585; O'Dea 
 V. O'Dea, 101 N. Y. 23, 4 N. E. 110. In Jones v. Jones, 108 N. Y. 415, 15 N. 
 Ei 707, 2 Am. St. Rep. 447, the doctrine of People v. Baker was approved, 
 but the decree was held valid, because the defendant had voluntarily ap- 
 peared in the suit in the Texas court. See, also, Strauss v. Strauss, 122 
 App. Div. 729, 107 N. Y. Supp. 842. The doctrine of the New York courts 
 has also been approved in Cook v. Cook, 56 Wis. 195, 14 N. W. 33, 443, 43 
 Am. Rep. 706; Harris v! Harris, 115 N. C. 587, 20 S. E. 187, 44 Am. St. 
 Rep. 471 ; Perkins v. Perkins, 225 Mass. 82, 133 N. E. 841, L. R. A. 1917B, 
 1028; State v. Duncan, 110 S. C. 253, 96 S. E. 294; Jacob! v. Jacobi, 45 
 App. D. 0. 442; Bruguiere v. Bruguiere, 172 Cal. 199, 155 Pac. 988, Ann. 
 Oas. 1917E, 122 ; Pettis v. Pettis, 91 Conn. 608, 101 Atl. 13, 4 A. L. R. 852 ; 
 McCreery v. Davis, 44 S. C. 195, 22 S. E. 178, 28 L. R. A. 655, 51 Am. St. 
 Rep. 794. And see HADDOCK v. HADDOCK, 2Q1 U. S. 562, 26 Sup. Ct. 525, 50 
 L. Ed. 867, 5 Ann. Cas. 1, Cooley Cas. Persons and Domestic Relations, 
 144; affirming 178 N. Y. 557, 70 N. E. 1099, where the decree of divorce 
 was obtained by the husband, domiciled in Connecticut, with only construc- 
 tive service on the wife, whose domicile was New York. Nevertheless, the 
 New York courts recognize the rule that the party obtaining the divorde 
 
§ 111) LEGISLATIVE DIVORCE 291 
 
 former was the matrimonial domicile of the parties,'" in whicji case 
 constructive service by publication is sufficient.'" This also seems 
 to be the rule adopted by the United States Supreme Court.'"' 
 
 In accordance with principles already stated the injured party 
 may for the purposes of divorce acquire a new domicile, and nei- 
 ther spouse can by unjustifiably abandoning the dther acquire a 
 hew matrimonial domicile.'^ ' ■ 
 
 LEGISLATIVE DIVORCE 
 
 HI. In the absence of constitutional restrictions, the legislature of 
 a state has the power to grant divorces by special act ; and 
 such an act is not within the constitutional prohibition 
 against laws impairing the obligation of contracts. 
 
 The English ecclesiastical courts were limited to the granting of 
 divorces from bed and board," and could not grant a divorce a vin- 
 culo matrimonii. This power, however, was exercised by Parlia- 
 
 may be estopped to set up the want of jurisdiction. Starbuck v. Starbuck, 
 
 173 N. Y. 503, 66 N. E. 193, 93 Am. St. Eep. 631; Kaufman v. Kaufman, 177 
 App. Div. 162, 163 N. Y. Supp. 566, afflriing (Sup.) 160 N. T. Supp. 19. 
 Wliere defendant is served in the state of the forum or appears, a judgment 
 in any state of the Union, irrespective of thei ground upon which it was 
 granted, is wjthin the full faith and credit clause of the federal Constitu- 
 tion. In re Caltabellotta's Will, 183 App. Div. 753, 171 N. Y. Supp. 82. 
 
 2 8 The term "matrimonial domicile" means that place where one spouse 
 is rightfully domiciled, and where the other spouse ougtt to be in order to 
 fulfill the marital obligations. Decrees of divorce of other states recovered 
 upon service by publication are not judgments in personam, and, if not ren- 
 dered by the court of the last matrimonial domicile, are not within the full 
 faith and credit clause of the federal Constitution, and are only recognized 
 by otner states by reason of comity, and will not prevail where in contra- 
 vention of the public policy of the state. Ball v. Cross, 106 Misc. Rep. 184, 
 
 174 N. Y. Supp. 259. Where the husband and wife were married in New 
 York, but the husband had always resided in Cbnnecticut, a decree of New 
 York divorcing the parties a mensa et thoro cannot claim recognition as 
 a decree of the court of matrimonial domicile. Pettis v. Pettis, 91 Conn. 608, 
 101 Atl. 13, 4 A. L. K. 852. 
 
 2 9 Post V. Post, 149 App. Div. 452, 133 N. Y. Supp. 1057, affirmed 210 N. 
 Y. 607, 104 N. E. 1139 ;' Buckley v. Buckley, 50 Wash. 213, 96 Pac. 1079, 126 
 Am_. St. Rep. 900; Montmorency v. Montmorency (Tex. Civ. App.) 139. S. W. 
 1168 ; People ex rel. Catlin v. Catlin, 69 Misc. Rep. 191, 126 N. Y. Supp. 350. 
 
 s." Atherton v. Atherton, 181 U. S. 155, 21 Sup. Ct. 544, 45 L. Ed. 794; HAD- 
 DOCK v. HADDOCK, 201 XJ. S. 562, 26 Sup. Ct. 525, 50 h. Ed. 867, 5 Ann. Cas. 
 1, Cooley Cas. Persons and Domestic Relations, 144; Thompson v. Thomp- 
 son, 226 U. S. 551, 33 Sup. Ot. 129, 57 L. Ed. 347. 
 
 31 See ante, p. 245. 
 
292 SEPARATION AND DIVORCE / (Ch. 7 
 
 ment; and, when this country was settled, the legislative assem- 
 blies of the colonies followed the example of Parliament, and 
 treated the subject as within their province. Since then divorces 
 a vinculo have been granted by special act, of the Legislature in 
 very many of the states. In some states the power of the L,egisla^ 
 ture to grant divorces is restricted by constitutional provisions.^^ 
 In the absence of such restrictions, however, it is well settled that 
 the power exists. In a late case the question came before the Su- 
 preme Court of the United States.; and it was held that a special act 
 of a territorial Legislature dissolving the marriage relation between 
 a husband resident in the territory and a wife who was a nonresi? 
 dent was a valid act of legislative power, and that it was not ren- 
 dered invalid by the fact that there was no cause for divorce, and 
 that the wife was not notified.^^ It was also held that such an act 
 does not violate the clause of the federal Constitution prohibiting 
 laws impairing the obligation of contracts, since marriage is not a 
 contract. Within the meaning of that provision.** 
 
 In some states the granting of divorces by the Legislature is. re- 
 .garded as an encroachment on the judicial powers. ^^ And it has 
 'also been held that the passage of a special act granting a divorce 
 contravenes the constitutional provision forbidding the enactment 
 of special laws.*' 
 
 32 Sparhawk v. Sparhawk, 116 Mass. 315; State v. Fry, 4 Mo. 120. 
 
 »* MATNAKD v. HILL, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654, C!ooley 
 Gas. Persons and Domestic Relations, 1; Cronise v. Cronise, 54 Pa. 255; 
 Crane v. Meginnis, 1 Gill & J. (Md.) 474, 19 Am. Dec. 237 ; Starr v. Pease, 
 8 Conn. 541 ; Bingham v. Miller, 17 Ohio, 445, 49 Am. Dec. 471 ; State v. 
 Duket, 90 Wis. 272, 63 N. W. 83, 31 L. R. A. 515, 48 A^. St. Rep. 928. 
 
 S3 MATNARD v. HILL, 125 V. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654, Cooley 
 Gas. Persons and Domestic Relations, 1. 
 
 35Bryson v. Campbell, 12 Mo. 498; Jones v. Jones, 12 Pa. 351, 51 Am. 
 Dec. 612 ; In re Christiansen, 17 Utah, 412, 53 Pac. 1003, 41 L. R. A. 504, 
 70 Am. St. Rep. 794. 
 
 3s Winkles v. Powell, 173^Ala. 46, 55 South. 536. 
 
PART II 
 
 PARENT AND CHILD 
 
 CHAPTER VIII 
 
 ' LEGITIMACY, ILLEGITIMACY, AND ADOPTION 
 
 112-113. Legitimacy of Children. 
 
 114. Status of Illegitimate Children, 
 
 115. Adoption of Children. 
 
 Persons occupying the relation of parent and child have certain' 
 rights, and are subject to certain duties and obligations, which arise 
 from the legal status established by that relation. Strictly speak- 
 ing, the status exists only between the parent and his legitimate 
 children and his children by adoption. But in some degree these 
 rights, duties, and obligations may arise where one person has as- 
 sumed to stand in loco parentis to another, without legal adoption. 
 Before explaining these rights, duties, and obligations, it is neces- 
 sary to show what constitutes legitimacy, how the relation of par- 
 ent and child may arise through adoption, and how the relation in 
 loco parentis may arise. In this chapter will also be considered the 
 status of parent and illegitimate child, and the rights and duties 
 which arise from that relation. 
 
 LEGITIMACY OF CHILDREN 
 
 112. A child is legitimate at common law when it was born or be- 
 
 gotten during the lawful wedlock of its parents, and very 
 generally, by statute in this country, when its parents mar- 
 ry subsequent to its birth. 
 
 113. There is a strong presumption that the child of a married wo- 
 
 man is legitimate; but this is a presumption of fact, and 
 may be rebutted by clear and convincing evidence that her 
 husband is not its father. 
 
 Legitimacy and Illegitimacy 
 
 *'A legitimate child," says Blackstone, "is he that is born in lawful 
 wedlock, or within a competent time afterwards. 'Pater est quem 
 
 (293) 
 
294 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 nuptise demonstrant,' is the rule of the civil law ; and this holds with 
 the civilians, whether the nuptials happen before ,or after the birth 
 of the child. With us in England the rule is narrowed, for the 
 nuptials must be precedent to the birth." ^ A child, to be legiti- 
 mate, need not necessarily have been begotten during wedlock. It 
 is sufficient if he was born after, though begotten before, marriage.^ 
 In Rex v. Lufife,^ Lord Ellenboroiigh said that, "with respect to the 
 case where the parents have married so recently before •the birth 
 of the child that it could not have been begotten in wedlock, it 
 stands upon its own peculiar ground. The marriage of the parties 
 is the criterion adopted by the law, in cases of antenuptial genera- 
 tion, for ascertaining the actual parentage of the child. For this 
 purpose it will not examine when the gestation began, looking 
 only to the recognition of it by the husband in the subsequent act 
 of marriage." "A bastard, by our English laws," says Blackstone, 
 "is one that is not only begotten, but born, out of lawful rhatrimony. 
 The civil and canon laws do not allow a child to remain a bastard 
 if the parents afterwards intermarry; and herein they differ most 
 materially from our law; which, though not so strict as to require 
 that the child shall be begotten, yet makes it an indispensable con- 
 dition, to make it legitimate, that it shall be born after lawful wed- 
 lock." * Of course, all children born so long after the death of the 
 husband that, by the usual course of gestation, they could not pos- 
 sibly have been begotten by him, are illegitimate; and, generally, 
 all children are illegitimate if it is clearly shown by the circum- 
 , stances that the husband could not have been or is not their father. 
 At common law, if a marriage is void, the children of such a mar- 
 
 1 1 Bl. Comm. 446. 
 
 2 Rex v". Uifte, 8 East, 19S ; Stesall v. Stegall, 2 Brock. 256, Fed. Oas. No. 
 13,351; Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644 ; Bowles v. Bingbam, 2 
 Munf. (Va.) 442, 5 Am. Dec. 497; Id., 3 Munf. (Va.) 599; State v. Wilson, 
 32 N. C. 131 ; State v. Herman, 35 N. C. 502. And see Grant v. Stimpsou, 
 79 Conn. 617, 66 Atl. 166. 
 ■ 3 8 East, 19S. 
 
 4 1 Bl. Comm. 454. In countries governed by the civil law, three classes 
 of children are recognized: liegitimate, natural, and bastards. Natural chil- 
 dren are illegitimate children born of parents both of whom at the time of the 
 child's birth had capacity to marry. Such children can be acknowledged 
 or legitimated by the parents. Bastards are the illegitimate children of 
 parents, one or both of whom were incapacitated to marry; 1. e., children 
 of adulterous conhection. This class of children cannot be legitimated. See 
 Civil Code Philippine Islands, art. 119 et seq. The rule in Louisiana is 
 practically the same. Briggs v. McLaughlin, 134 La. 133, 63 South. 851. 
 
\ 
 
 §§ 112-113) ■ LEGITIMACY OF CHILDREN 295 
 
 riage are illegitimate, though the parties in marrying may have act- 
 ed in the most perfect good faith/ So it is, also, where a marriage 
 is voidable and avoided by disaffirmance, or by a decree of nullity in 
 the lifetime of the parties, so as to render it void ab initio on such 
 disaffirmance or the entry of such a decree. ° These were harsh 
 rules, and in most states they have been greatly modified by statute. 
 In some states the statute is very broad. In Wisconsin, for in- 
 stance, the statute declares that "the issue (^f all marriages declared 
 null in law. shall, nevertheless, be legitimate." Such a statute, said 
 the Wisconsin court, means "that a child born within the wedlock 
 of a regular marriage, which is null in law, shall, nevertheless, be 
 the legitimate child and heir of each and both parents, 50 far as the 
 question of legitimacy is concerned. In other words, all such chil- 
 dren are legitimate to all intents and purposes. It is a very just 
 and humane provision, and serves to mitigate somewhat the sever- 
 ity of the old law, which visited upon the children the siris of their 
 parents." In the case from which we have quoted, therefore, it was 
 held that a child born within the wedlock of a regular marriage, 
 which is void in law because the wom^in is already married, is, 
 nevertheless, the legitimate child and heir of both parents.^ 
 
 Presumption of Legitimacy — Bvidcnce 
 
 The child of a married woman is presunied to be legitimate, in 
 the absence of evidence that the husband is not its father.* This 
 
 Ante, pp. 32, 58. " -^nte, p. 58. 
 
 "> Watts V. Owens, 62 Wis. 512, 22 N. W. 720. And see Lincecum v. Lin- 
 eecuni, 3 Mo. 441 ; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359 ; Green v. 
 Green, 126 Mo. 17, 28 S. W. 752, 1008; Evatt v. Miller, 114 Ark. 84, 169 
 S. W. 817, L. R. A. 1916C, 759; Nelson v. Jones, 245 Mo. 579, 151 S. W. 80; 
 Glass V. Glass, 114 Mass. 563 ; Inhabitants of Hiram v. Pierce, 45 Me. 367, 
 71 Am. Dec. 555; Earle v. Dawes, 3 Md. Oh. 230; Hartwell v. Jackson, 7 
 Tex. 576 ; Graham v. Bennet, 2 Oal. ,503 ; Heckert v. Hlle'^s Adm'r, 90 Va. 390, 
 18 S. E. 841. But see Baylls' v. Bay'lis, 207 N. Y. 446, 101 N. E. 176, affirming 
 146 App. Div. 517, 131 N. Y. Supp. 671; Green v. Kelly, 228 Mass. 602, 118 
 N. E. 235. 
 
 8 Wallace v. Wallace, 137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 544, 
 126 Am. St. Rep. 253, 15 Ann. Gas. 761; Ex parte Madalina, 174 Oal. 693, 
 164 Pae. 348, 1 A. L. B. 1629; Sims v. Birden, 197 Ala. 690, 73 South. 379, 
 744; Lewis v. Sizemore, 78 S. W. 122, 25 Ky. Law Rep. 1354; Grant v. 
 Stimpson, 79 Conn. 617, 66 Atl. 166 ; Illinois Land & Loan Oo. v. Bonner, 75 
 111. 315 ; Rhyne v. Hbffman, 59 N. O. 335 ; Buckner's Adm'r v, Buckner, 120 
 Ky. 596, 87 S. W. 776; Vreeland v. Vreeland, 78 N. J. Eq. 256, 73 Atl. 336, 
 34 L. R. A. (N. S.) 940 ; Powell v State, 84 Ohio St. 165, 95 N. E. 660, 36 L. 
 R. A. (N. S.) 255; State v. Shaw, 89 Vt. 121, 94 Atl. 434, L. R. A. 1915F, 1087; 
 Kennedy v. State, 117 Ark. 113, 173 S. W. 842, L. R. A. 1916B, 1052, Ann. Oas, 
 1917 A, 1029; In re Campbell's Estate, 12 Cal. App. 707, 108 Pac. 669, 676; 
 
296 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 presumption is very strong, and will not, as a rule,* be rebutted by 
 anything less than clear and convincing proof that sexual inter- 
 course did not take place between the father and mother at any 
 time when, in the course of nature, the husband might have been the 
 father of the child, or that the father and mother were not legally 
 married.^" This presumption is one of fact, and not of law, and 
 may always be rebutted by showing that, in fact, the husband could 
 not have been the father.^^ The presumption is clearly rebutted. 
 
 In re Henry's Estate, 167 Iowa, 557, 149 N. W. 605 ; Wallace v. Wallace, 73 
 N. J. Rq. 403, 67 Atl. 612 ; Timmann v. Timmann (Sup.) 142 N. T. Supp. 298 ; 
 Ewell V. Ewell, 163 N. O. 233, 79 S. E. 509, Ann. Gas. 1915B, 373 ; Cave v. 
 Cave, 101 S. O. 40, 85 S. E. 244. Evidence that plaintiff's mother was legally 
 married to a man, and that there was opportunity for procreation within 
 the period of gestation, raises a conclusive presumption that plaintiff is his 
 legitimate son. Vanover v. Steele, 173 Ky. 114, 819, 190 S. W. 667. While 
 the presumption is not overcome by proof of an antenuptial conception it is 
 weakened. • Jackson v. Thornton, 133 Tenn. 36, 179 S. W. 384. 
 
 9 See ]5ost, p. 298, as to rebuttal of presumption of legitimacy, even where 
 intercourse by the husband is sbovm to have taken place. 
 
 i»Head v. Head, 1 Sim. & S. 150; Banbury Peerage Casef, Id. 153; Pend- 
 rell V. Pendrell, 2 Strange, 925 ; Hargrave v. Hargrave, 9 Beav. 552 ; Bury v. 
 Phillpot, 2 Mylne & K. 349 ; * I'lowes v. Bossey, 31 Law J. Ch. 681 ; In re 
 Kelly's Estate, 46 Misc. Rep. 541, 95 N. T. Supp. 57 ; Wallace v. Wallace, 73 
 N. J. Eq. 403, 67 Atl. 612 ; Orthwein v. Thomas, 127 111. 554, 21 N. E. 430, 
 4 li. B. A. 434, 11 Am. St. Rep. 159 ; Hemmenway v. Towner, 1 Allen (Mass.) 
 209 ; Phillips v. Allen, 2 Allen (Mass.) 453 ; Strode v. Magowan's Heirs, 
 2 Bush (Ky.) 627 ; Wright v. Hicks, 15 Ga. 160, 60 Am. Dec. 687 ; Watts v. 
 Owens, 62 Wis. 512, 22 N. W. 720; Egbert v. Greenwalt, 44 MBch. 245, 6 
 N. W. 654, 38 Am. Rep. 260; Illinois Land & Loan Co. v. Bonner, 75 111. 
 315; Patterson v. Gaines, 6 How. 550, 12 L. Ed. 553; Cross v. 'Cross, 3 
 Paige (N. Y.) 139, 23 Am. Dec. 778; xMayer v. Davis, 122 App. Div. 922, 106 
 N. Y. Supp. 1041; Fox v. Burke, 31 Minn. 319, 17 N. W. 861; Klelnert V. 
 EhlerSj 38 Pa. 439 ; SCANLON v. WALSHB, 81 Md. 118, 31 Atl. 498, 48 Am. St. 
 Rep. 488, Cooley Cas. Persons and Domestic Relations, 157; In re Pickens' 
 Estate, 163 Pa. 14, 29 Atl. 875, 25 L. B. A. 477. In Strode v. Magowan's 
 Heirs, supra, it is said: "The law presumes that every child In, a Christian 
 country is prima face the offspring of a lawful, rather than a meretricious 
 union of the parents, and that, consequently, the mother, either by actual 
 marriage, or by cohabitation and recognition, was the lawful wife of the 
 father ; and, in the absence of any negative evidence, no supplemental proof 
 of legal marriage will be necessary to legitimate the offspring. Mere rumor 
 is insufficient to bastardize issue, or require positive proof of actual marriage. 
 If the presumption be false, repellant facts may be generally established; 
 and, if no such facts can be clearly proved, the presumption from mere filia- 
 tion should stand." 
 
 iiBunel V. O'Day (O. C.) 125 Fed. 303; In re Blersack, 961 Misc. Rep. 
 161, 159 N. Y. Supp. 519; Craig v. Shea, 102 Neb. 575, 168 N. W. 135; West 
 V. Redmond, 171 N. C. 742, 88 S. E. 341; People v. Woodson, 29 Cal. App. 
 531, 156 Pac. 378 ; Harkrader v. Reed, 5 Alaska, 668 ; Flint v. Pierce (Sup.) 
 136 N. Y. Supp. 1056; State v. Shaw, 89 Vt 121, 94 Atl. 434, L. R. A. 1915F, 
 
 \ 
 
§§ 112-113) LEGITIMACY OF CHILDREN 297 
 
 for instance, if it is shown that the husband was physically incapa- 
 ble of sexual intercourse, so that he could not have begotten the 
 child ; ^^ or that he was beyond the seas, or, though not beyond the 
 seas, that he was away from his wife, so that he could not have 
 had intercourse with her during the time when, in the course of 
 nature, the child must have been begotten.^' 
 
 If access by the husband is shown, there is a very strong pre- 
 sumption of intercourse ; and if there was intercourse at such a time 
 that the child could, in the course of nature, have been begotten by 
 him, the' presumption is almost conclusive that he is the father.^* 
 "The modern rule, which is marked out by its good sense, is that, 
 to bastardize the issue of a married woman, it must be shown be- 
 yond all reasonable doubt that there was no such access as could 
 have enabled the husband to be the father of the child. The rules 
 of law, as laid down by the judges on the questions propounded to 
 them by the house of lords, in the Banbury Peerage Case,'" are sub- 
 stantially these: Sexual intercourse is to be presumed where per- 
 sonal access is not disproved, unless such presumption is rebutted 
 by satisfactory evidence to the contrary; and, where sexual inter- 
 course is presumed or proved, the husband must be taken to be the 
 
 1087; Kennedy v. State, 117 Ark. 113, 173 S. W. 842, L. R. A. 1916B, 1052, 
 Ann. Cas. 1917A, 1029; Wallace v. Wallace, 73 N. J. Bq. 403, 67 Atl. 612; 
 Ewell V. Ewell, 163 N..,C. 233, 79 S. E. 509, Ann. Cas. 1915B, 373; Powell 
 V. State, 84 Ohio St. 165, 95 N. E. 660, 36 !•. R. A. (N. S.) 255. But see People 
 v. Case, 171 Mich. 282, 137 N. W. 55. 
 
 12 Banbury Peerage Case, 1 Sim. & S. 153; Eexi v. LufEe, 8 East, 193, 207; 
 Hargrave v. Hargrave, 9 Beav. 552 ; Ewell v. Ewell, 163 N. C. 233, 79 S. E. 
 509, Ann. Cas. 1915B, 373; West v. Redmond, 171 N. C. 742, 88 S. B. 341; 
 People V. Woodson, 29 Cal. App. .531, 156 Pae. 378. 
 
 13 Banbury Peerage ^ase, 1 Sim. & S. 153; Head v. Head, Id. 150; Hark- 
 rader v. Reed, 5 Alaska, 668 ; Bosvlle v. Attorney General, 12 Prob. Div. 177. 
 In the last case it was' in evidence that the usual period of gestation is 270 
 to 275 days, and that the child was born 276 or 277 days after the last 
 opportunity for intercourse between the husband and wife. There was also 
 evidence that it might have been the child of another. The jury found 
 against legitimacy, and the court refused to set the verdict aside. This deci- 
 sion jUustrates and sustains the proposition stated in the text, but clearly it 
 goes too far, and allows too slight evidence to rebut the presumption of 
 legitimacy ; for it is a well-known fact that the period of gestation may ex- 
 tend far beyond 277 days. Perhaps the evidence that another man had in- 
 tercourse with the wife may have had controlling weight. 
 
 1* Banbury Peerage Case, 1 Sim. & g. 153 ; Head v. Hiead, Id. 150 ; Rex 
 V. Lufte, 8 East, 193 ; Cross v. Cross, 3 Paige (N. T.) 139, 23 Am. Dec. 778 ; 
 Wilson V. Wilson, 174 Ky. 771, 193 S. W. 7; In re Walker's Estate, 176 Cal. 
 402, 168 Pac. 689. 
 
 15 1 Sim. & S. 153. 
 
298 LE&ITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 father of the child, unless there was a physical or natural impossi- 
 bility that such intercourse should have produced such child." ^° 
 
 Mere proof of the wife's adultery is not sufficient to rebut the 
 presumption, in the absence of any other evidence going to show 
 that her husband could not have begotten the child. "Although 
 actual adultery with other persons is established at or about the 
 commencement of the usual period of gestation, yet if access by the 
 husband has taken place, so that, by the laws of nature, he may be 
 the father of the child, it must be presumed to be his, and not the 
 child of the adulterer." ^^ 
 
 By the early common law of England, the rule was that the hus- 
 band must be conclusively presumed to be the father of his wife's 
 children born during wedlock, if he was within the four seas at any 
 time during the period of his wife's gestation, and was not physical- 
 ly incapable of procreation. To such an absurd length was the doc- 
 trine carried that it was decided that a child born in England was 
 legitimate, although it clearly appeared that the husband resided 
 in Ireland during the whole time of his wife's pregnancy, and for a 
 long time previously, because Ireland was within the king's domin- 
 ion.^* This absurd doctrine was exploded by Lord Raymond in 
 Pendrell v. Pendrell,^" in 1732, where he held that the legal pre- 
 sumption of access by the husband might be controverted.^" And 
 the rule now is well settled, both in England and in this country, 
 that the presumption is in 'all cases a presumption of fact, and 
 not a presumption of law, and may always be rebutted; and, fur- 
 ther than this, that it may be rebutted even where access by the 
 husband is shown. ''^ And the presumption may be rebutted, not 
 only by showing physical incapacity, as stated above, but by any 
 other legitimate evidence, including the conduct of the parties, 
 
 IS Cross V. Cross, 3 Paige (N. Y.) 139, 23 Am. Dec. 778. 
 
 17 Cross V. Gross, 3 Paige (N. Y.) 139, 23 Am. Dec. 778; Town of Canaan 
 V. Avery, 72 N. H. 591, 58 Atl. 5'09 ; Wright v. Hicks, 15 Ga. 160, 60 Am. Dec. 
 687; Bury y. Phillpot, 2 Mj'lne & K. 349; Hemmemvay v. Towner, 1 Allen 
 (Mass.) 209; Foote v. State, 65 Tex. Cr. R. 368, 144 S. W. 275, Ann. Gas. 
 191 6A, 1184. And see State v. Shaw, 89 Vt. 121, 94 Atl. 434, L. R, A. 1915F, 
 1087. 
 
 18 Wright V. Hiclts, 12 Ga. 155, 56 Am. Dec. 451, where the ancient rule is 
 shown by Lumpkin, J. And see Co. I/itt. 244a ; Reg. v. Murray, 1 Salk. 122._ 
 
 18 2 Strange, 925. 
 
 2 Wright V. Hicks, 12 Ga. 155, 56 Am. Dec. 451. 
 
 21 Pendrell v. Pendrell, 2 Strange, 925; Wright v. Hicks, 12 Ga. 155, 56 
 Am. Dec. 451; Id., 15 Gn. 160, 60 Am. Dec. 687; Cross v. Cross, 3 Paige (N. 
 Y.) 139, 23 Am. Dec. 778, and cases hereafter cited. 
 
§§ 112-113) ■ LEGITIMACY OP CHILDEEN 299 
 
 which clearly shows that there was no intercourse."'' In Cope v. 
 Cope,"" where the husband and wife were living separate, and the 
 wife in open adultery^ the court said that, "although the husband 
 and wife have an opportunity for access, it would be monstrous 
 to suppose that under such circumstances he would avail himself 
 of such opportunity. The legitimacy of a child, therefore, born un- 
 der such circumstances, could not be established." "* In Wright 
 V. Hicks,"^ it is said by Lumpkin, J.: "The law now is universally 
 understood to be clearly settled that, although the birth of a child 
 during wedlock raises a presumption that such child is legitimate, 
 yet this presumption may be rebutted both by direct and presump- 
 tive evidence. And, in arriving at a conclusion upon this subject, 
 the jury may not only take into their consideration proofs tending 
 to show the physical impossibility of the child born in wedlock 
 being legitimate, but they may decide the question of paternity by 
 attending to the relative situation of the parties, their habits of life, 
 the evidence of conduct and of declarations connected with con- 
 duct, and to any induction which reason suggests, for determining 
 upon the probabilities of the case. Where the husband and wife 
 have had the opportunity of sexual intercourse, a very strong pre- 
 sumption arises that it must have taken place, and that the child 
 in question is the fruit; but it is only a very strong presumption, 
 and no more. This presumption may be rebutted by evidence, and 
 -it is the duty of the jury to weigh the evidence against the presump- 
 tion, and to decide as, in the exercise of their judgment, either may 
 appear to preponderate." 
 
 Even where there was intercourse by the husband, actually shown 
 or presumed from access in the absence of evidence to the contrary 
 the presumption of legitimacy may still be rebutted by circum- 
 stances showing that it was a natural impossibility that the hus- 
 band could be the father of such a child; as, for instance, where 
 the wife and husband are white persons, and an adulterous inter- 
 course is shown to have existed between the wife and a negro at 
 
 22 2 Kent, Oomm. 211; Hargrave v. Hargrave, 9 Beav. 552; Plowes v. 
 Bossey, 31 T^w .7. Ch. 681 ; Head v. Head, 1 Sim. & S. 150 ; Rex v. LufEe, 
 8 East. 193, 207 ; Morris v. Davis, o Clark & F. 163 ; Aylesford Peerage Case, 
 11 App. Cas. 1 ; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. ^51 ; Id., 15 Ga. 
 160, 60 Am. Dec. 687 ; Van Aemam v. Van Aernam, 1 Barb. Cti. (N. T.) 375 ; 
 Cannon v. Cannon, 7 Humph. (Tenn.) 410; Cope v. Cope, 1 Moody & R. 269. 
 
 23 1 Moody & R. 269. 
 
 24 gee McLoud v. .State, 122 Ga. 393, .50 S. E. 145. 
 
 2 6 12 Ga. 155, 56 Am. Dec. 451; 15 Ga. 160, 60 Am. Dec. 687. 
 
300 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 or about the time when the child must have been begotten, dnd 
 the color and other physiological develoipments of the child demon- 
 strate its African paternity.^" 
 
 Though the presumption of legitimacy may be overthrown by 
 proof of nonaccess, such proof must be clear and convin'cing.^'' 
 The policy of the law does not allow either the husband or the 
 wife to testify as to the fact of access or nonaccess, whether the 
 testimony relates to access before or after marriage. "Nonaccess 
 cannot be proved by either the husband or the wife, whether the 
 action be civil or criminal, or whether the proceeding is one of 
 settlement or bastardy, or to recover property claimed as heir at 
 law." "^ In Goodright v. Moss,^' where the question of legitimacy 
 arose in an action of ejectment, Lord Mansfield said: "As to the 
 time of the birth, the father and mother are the most proper wit- 
 nesses to prove it. But it is a rule founded in decency, morality, 
 and policy that they shall not be permitted to say after marriage 
 that they have had no connection, and therefore that the offspring 
 is spurious." 
 
 Legitimation by Subsequent Mar*riage or Acknowledgment 
 
 It will be noticed from what has been said that, according to the 
 civil law, children born before the marriage of their parents are 
 rendered legitimate by the marriage. The rule of the common law 
 to the contrary is still in force in England, and in some of our 
 states; '" but in many stages statutes have been enacted providing, 
 
 2« See Whisterlo's Case, cited in Cross v. Cross, 3 Paige (N. T.) 139, 23 Am. 
 Dee. 778; Wright v. Hides, 12 Ga. 155, 56 Am. Dec. 451; Bullock v. Knox, 
 S>6 Ala. 195, 11 South. 339. 
 
 s 7 Mayer v. Davis, 122 App. Div. 393, 106 N. T. Supp. 1041. 
 
 28 Dennlson v. Page, 29 Pa. 420, 72 Am. Dec. 644. And see Bex v. Luflfe, 
 8 East, 198 ; Rex v. Rook, 1 Wils. 340 ; Goodright v. Moss, 2 Cowp. 591 ; 
 Parker'v. Way, 15 N. H. 45; People v. Overseers of Poor of Town of Ontario, 
 15 Barb. (N. Y.) 286; Mink v. State, 00 Wis. 583, 19 N. W. 445, 50 Am. Rep. 
 386; People v. Case, 171 Mich. 282, 137 N. W. 55; Groom v. Whitehead, 174 
 N. C. 305, 93 S. E. 854 ; Watts v. Owens, 62 Wis. ^12, 22 N. W. 720 ; Egbert 
 V. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. Rep. 260. And the rule also 
 applies, so as to exclude declarations of husband or wife, unless they are ad- 
 missible because connected with, and explanatory of, conduct. Bowles v. 
 Bingham, 2 Munf. (Va.) 442, 5 Am. Dec. 497. 
 
 2 2 Cowp. 591. 
 
 3 Eversley, Dom. Bel. 526. It is held in England that a child born before 
 marriage, though made legitimate according to the laws of the country of 
 kis birth, per subsequens matrimonium, cannot inherit land in England. 
 Birtwhistle v. Vardill, 7 Clark & P. 895. This decision was based on the 
 Statute of Merton (20 Hen. Ill, c. 9). And see Smith v. Deer's Adm'ra, 
 
§§ 112-113) LEGITIMACY OF CHILDBEN 301 
 
 in accordance with the civil law, that the marriage of parents shall 
 render legitimate, for all purposes, a child born before the rhar- 
 riage," and in other states that such result will follow the marriage 
 if the>child is also acknowledged and taken into the family.'^ And 
 such statutes are valid.^' But it is held in some states that the 
 marriage will not legitimate the offspring of an adulterous inter- 
 course before the marriage.^* In a number of states, also, by stat- 
 
 34 Pa. 126, 75 Am. Dec. 641, which arose under a statute of Pennsylvania 
 similar to the Statute of Merton. The general rule in this country, however, 
 is different. MUler v. Miller, 31 N. Y. 315, 43 Am. Rep. 669. 
 
 31 Stim. Am. St. Law, § 6631; Ohnsted v. Olmsted, 190 N. Y. 458, 83 N. E. 
 569, 122 Am. St. Rep. 585; Summs v. Snare & Triest Co., 166 App. Div. 
 425, 152 N. Y. Supp. 29; Harrison v. Harker, 44 Utah, 541, 142 Pac. 716; 
 In re Adams' Estate, 6 Pa. Co. Ct. R. 591 ; Clauer's Appeal, 11 Wkly. Notes 
 Gas. (Pa.) 427 ; Miller v. Miller, 91 N. Y. 315,, 43 Am. Rep. 669. But a void mar- 
 riage will not legitimate a child bom prior thereto, though the children of such 
 marriage are legitimate. Adams v. Adams, 154 Mass. 290, 28 N. E. 260, 13 L. 
 R. A. 275. And see Olmsted v. Olmsted, 190 N. Y. 458, 83 N. E. 569, 123 Am. 
 St. Rep. 585, affirn»ed in 216 U. S. 386, 30 Sup. Ct. 292, 54 L. Ed. 530, 25 L. R. 
 A. (N. S.) 1292. But it has been hpld in New York that under Domestic Rela- 
 tions Law, §§ 7, 24, and in view of section 6, and Code Civ. Proc. § 1745, an il- 
 legitimate child was legitimized by subsequent marriage of its parents, and 
 its status was not affected because marriage was annulled on ground that fa- 
 ther consented under duress. Houle v. Houle, 100 Misc. Rep. 28, 166 N. Y. 
 Supp. 67. And it has been held in Pennsylvania that a subsequent marriagej 
 to legitimate a child born before marriage, must be followed by cohabitation. 
 In re SoUingei's Estate, 40 Pa. Super. Ct. 3. These statutes are not confined 
 in their operation to minor children. Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 
 346, 350. The dvil-law rule is followed in the Philippine Islands. Cosio v. 
 Antonio, 10 Phil. Rep. 73. 
 
 3 2 Inhabitants of Monson v. Inhabitants of Palmer, 8 Allen (Mass.) 551; 
 Town of Rockingham v. Town of Mount Holly, 26 Vt. 653 ; McBride v. Sul- 
 livan, 155 Ala. 166, 45 South. 902 ; Breidensteln v. Bertram, 198 Mo. 328, 95 
 S. "W. 828; Stein's Adm'r v. Stein, 106 S. W. 860, 32 Ky. Law Rep, 664; 
 Harrison v. Odum, 148 Ga. 489, 96. S. B. 1038 ; Kotzke v. Kotzke's Estate, 
 205 Mich. 184, 171 N. W. 442; Cain v. Gray, 146 Ky. 402, 142 S. W. 715; 
 Haddon v. Crawford, 49 Ind; App. 551, 97 N. E. 811; Landry v. American 
 Creosote Works, 119 La. 231, 43 South. 1016, 11 L. R. A. (N. S.) 387 ; Trayer 
 V. Setzer, 72 Neb. 845, 101 N. W. 989. See, also, Rentie v. RenUe (Okl.) 
 172 Pac. 1083. The recognition may be by conduct as well as by declara- 
 tions. Houghton V. Dickinson, 196 Mass. 389, 82 N. E. 481. 
 ' 33 Stim. Am. St. Law, § 6631. See Miller v. Miller, 91 N. Y. 315, 43 Am. 
 Rep. 669 ; Houghton v. Dickinson, 196 Mass. 389, 82 N. E. 481. 
 
 34 Adams v. Adams, 154 Mass. 290, 28 N. B. 260, 13 L. R. A. 275; Hall v. 
 Hall, 82 S. W. 300, 26 Ky. Law Rep. 610; Sams v. Sams' Adm'r, 85 Ky. 
 396, 3 S. W. 593. But seS,~ contra. Miller v. Pennington, 218 111. 220, 75 N. 
 E. 919, 1 L. R. A. (N. S.) 773; Robinson v. Ruprecht, 191 111. 424, 61 N. B. 631 ; 
 Bates V. Meade, 174 Ky. 545, 192 S. W. 666 ; Drake v. Milton Hospital Ass'n, 
 266 Mo. 1, 178 S. W. 462; Kotzke v. Kotzke's Estate, 205 Mich. 184, 171 
 
302 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 ute, the father of an illegitimate child, by publicly acknowledging it 
 as his own, receiving it as such into his family, and otherwise 
 treating it as if legitimate, thereby renders it legitimate for all 
 purposes.'" And in Michigan, by statute, if the father, by writing 
 executed, acknowledged "and recorded like deeds of real estate, but 
 with the judge of probate, acknowledged such child, it is legitimate 
 for all purposes.'" There are various other methods in different 
 states by which illegitimate children may be rendered legitimate.'' 
 In a few states the putative father of a bastard has a process in 
 court by which he may legitimate the child.'* In some of the states 
 illegitimate children who have been rendered legitimate under 
 statutory provisions are called "legitimated" children. Statutes 
 allowing illegitimate children to inherit, or otherwise clothing 
 them with the status and rights of a legitimate child, are perfectly 
 valid, for the L,egislature has the right to change the common law 
 in this respect." Such statutes, being in derogation of the com- 
 mon law, should be strictly construed ; but the courts cannot refuse 
 to give full efifect to the clear intention of the Legislature, as evi- 
 denced by the language of the statute.*" 
 
 The courts are not in agreement as to what constitutes a suffi- 
 cient acknowledgment of the child to legitimate it. In a few 
 instances it has been held that the acknowledgment must be by 
 an instrument executed for the express purpose,*^ but the better 
 rule seems to be that the writiri^ need not be made for the express 
 
 N. W. 442; Ives v. McNicoU, 59 Ohio St. 402, 53 N. B. 60, 43 K R. A. 772, 
 69 Am. St. Bep. 780. 
 
 3 5 Stlm. Am. St. Law, § 6632. See Blythe v. Ayres, 96 Cal. 532, 31 Pac. 
 915, 19 L. R. A. 40; Id., 102 Cal. 254, 36 Pac. 522; In re Gird's Estate, 
 157 Cal. 534, 108 Pac. 499, 137 Am. St. Rep. 181; Harrison v. Barker, 44 
 Utah, 541, 142 Pac. 716. 
 
 36 How. Ann. St. § 5775a. 
 
 87 As ij notarial act in Ijouisiana. Davenport v. Davenport, 116 La. 1O09, 
 41 South. 240, 114 Am. St. Rep. 575; Succession of Davis, 126 La. 178, 52 
 South. 266. In some instances legitimation has been effected by special 
 act of the Legislature. Lee v. Shankle, 51 N. C. 313. See, also, Rohwer v. 
 District Court of First Judicial District, 41 Utah, 279, 125 Pac. 671, con- 
 struing the Utah statute relating to the legitimatibn of children of Mormon 
 polygamous marriages; 
 
 38 Such statutes exist in Georgia, Mississippi, North Carolina, and Ten- 
 nessee. 
 
 8 8 Cope V. Cope, 137 U. S. 682, 11 Sup. Ct. 222, 34 L. Ed. 832; Miller v. 
 Miller, 91 N. Y. 315, IS Am. Rep. 669. 
 
 "0 Cope V. Cope, 137 U. S. 682, 11 Sup. Ct. 222, 34 L. Ed. 832. 
 
 *iHunt V. Hunt, 37 Me. 333; Childress v. Cutter, 16 Mo. 24. 
 
§§ 112-113) LEGITIMACY OF CHILDREN 303 
 
 purpose of acknowledging the child, but that the acknowledgment 
 is sufficient if made in any written instrument, collateral or other- 
 wise." It is, of course, necessary that paternity should be direct- 
 ly, unequivocally, and unquestionably acknowledged.*^ 
 
 The .writing must be complete in itself, so far as the acknowl- 
 edgment is concerned, and must not require aid from extraneous 
 evidence as to this fact." If it appears with reasonable clearness 
 and certainty from the written words that the paternity of the child 
 is acknowledged, the instrument is sufficient, though it is in- 
 formal,*^ and though the writing does not recite that the child 
 is illegitimate.*' 
 
 Conflict of Laws 
 
 By the great w eig^ht nf anthnrity, the legitimacy of a child, no t 
 only for the purpose of determining whether he can inherit, bu t 
 for all other purposes, is to be determined hy the law of the place 
 where he was born and the parents; wprp rlnmirilpr] * ^ A_dlild, 
 therefo re, that is legiti mate in the place of its birth is le£;itimat e 
 ' everywhere^*" On the other hand, a child that is illegitimate in 
 the place of its birth is illegitimate every where, -a-nd4s- incapable of 
 inheriting in another state, though, if he had been born in the latter 
 state, he would have been capable of inheriting.** 
 
 Whether an illegitimate child is legitimated by the subsequent 
 
 *2 Pederson v. ChristofCerson, 97 Mir i. 491, 106 N. W. 958 (when the in- 
 strmnent was a lease) ; Succession of Serres, 136 La. 531, 67 Soutti. 356 
 (will) ; In re Eohrtr, 22 Wash. 151, 60 Pac. 122, 50 L. R. A. 350 (where the 
 lather had certified before a notary that the plaintiff in an action, for 
 seduction was his daughter). 
 
 43 Moore v. Flack, 77 Neb. 52, 108 N. W. 143; HoUoway v. McCormlck, 
 41 Okl. 1, 136 Pac. 1111, 50 L. R. A. (N. S.) 536. 
 
 *4 HoUoway v. McCormick, 41 Okl. 1, 136 Pac. 1111, 50 L. R. A. (N. S.) 
 536. 
 
 *5 In re Loyd's Estate, 170 Cal. 85, 148 Pac. 522 ; HoUoway v. McCormick, 
 41 Okl. 1, 136 Pac. 1111, 50 L. R. A. (N. S.) 536; Richmond v. Taylor, 151 
 Wis. 633, 139 N. W. 435. 
 
 46 In re Gregory, 13 Misc. Rep. 363, 35 N. X. Supp. 105 ; In re Loyd, 170 
 Cal. 85, 148 Pac. 522; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 
 40. The person making the acknowledgment must be the real father of the 
 child. In re Reid's Estate, 130 Minn. 256, 153 N. W. 324. 
 
 4? Story, Oonfl. Law, § 87 et seq.; Smith, v. Kelly's Heirs, 23 Miss. 167, 55 
 Am. Dec. 87; MiUer v. Miller, 91 N. Y. 315, 43 Am. Rep. 669; Shedden 
 V. Patrick, 5 Paton, 194; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; 
 Green v. KeUey, 228 Mass. 602, 118 N. E. 235; Holmes v. Adams, 110 Me. 
 167, 85 Atl. 492. 
 
 48 Green v. KeUey, 228 Mass. 602, 118 N. B. 235. 
 
 48 Smith V. KeUy's Heirs, 23 Miss. 167, 55 Am. Dec. 87. 
 
304 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 marriage of its parents, or by acknowledgment or otherwise, is 
 deter mined by the law of the rInmiVilp. nf tlip. father at the time of 
 the attempted legiti triatinn g" If an illegitimate child has, by the 
 subsequent marriage of his parents, or otherwise, been rendered 
 legitimate, he will be recognized as legitimate for all purposes 
 in another state, in which there is no such statute/^ Some of 
 the cases are in conflict with this doctrine. Thus, it has been held 
 in some jurisdictions that a person cannot inherit land in one 
 state or country if he is illegitimate by the laws of that state or 
 country, though he may be legitimate by the laws of the state or 
 country in which he was born, and in which he and his parents 
 are domiciled."^ These cases seem to turn, however, on the Statute 
 of Merton or statutes similar thereto in effect. 
 
 STATUS 6f illegitimate CHILDREN 
 
 114. The natural relation between a parent and his illegitimate 
 children does not, at cornmon law, give rise to those rights 
 and duties which pertain to the legal status of parent and 
 child. But to some extent the law recognizes bastards as 
 children. Thus : 
 
 (a) The mother is entitled to the custody and services of her 
 
 illegitimate child, as against the father or strangers; but 
 the welfare of the child may require the court to award 
 its custody to another. 
 
 (b) The child's domicile is determined by that of its mother. 
 
 (c) The putative father is under no legal obligation to support 
 
 his illegitimate child, but now, by statute, he may very 
 generally be compelled to do so. 
 
 (d) At common law, a bastard cannot inherit, and can have no 
 
 heir except of his own body ; but this rule has been to a 
 great extent modified by statute. 
 
 BOBlythe v. Ayres, 96 Oal. 532, 31 Pac. 915, 19 L. R. A. 40; Irving v. 
 Fora, 183 Mass. 448; 67 N. E. 366, 65 W R. A. 177, 97 Am. St. Rep. 447 ; Mil- 
 ler V. Miller, 91 N. Y. 315, 43 Am. Rep. 669; In re Grove, 40 Ch. Div. 
 216 ; Adams v. Adams, 154 Mass. 290, 28 N. E. 260, 13 L. R. A. 275. 
 
 61 Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669 ; Finley v. Brown, 122 
 Tenn. 316, 123 S. W. 359, 25 L. R. A. (N. S.) 1285; Scott v. Key, 11 La. 
 Ann. 232. 
 
 6 2 Burtwhistle v. Vardill, 6 Ring. N. 0. 385 (as to this case see Ross v. 
 Ross, 129 Mass. 243, 37 Am. Rep. 321); Smith v. Derr's Adm'rs, 34 Pa. 
 126, 75 Am. Dec; 641; Dingen v. Lingen, 45 Ala. 410. See, also, Hall v 
 Gabbert, 213 111. 208, 72 N. E. 806. 
 
§ 114) STATUS OF rCiLEQlTIMATE CHILDREN 305 
 
 The relation between a parent and his illegitimate offspring 
 does not give rise to the rights afld uLligaliuiij, diLina from the 
 relation of a parent and his legitimate child. At least, it is so at 
 common law." In the, absence of statutory provision, the com- 
 mon law scarcely recognizes the father of a bastard, if, indeed, it 
 recognizes him at all. The courts, however, for some purposes, do 
 recognize the blood relationship between a bastard and its mother." 
 They recognize the mother's right to' the custody and, control of 
 it, and will generally award her the custody as against strangers, 
 and even as against the father.^" The mother can also transfer 
 her rights in this respect to another.^" The rights of the mother, 
 however, or of one to whom she has transferred the custody of 
 the child, are not absolute and beyond control. As in the case of 
 a legitimate child, so in the case of a bastard, the welfare of the 
 child will be the controlling consideration, where a question arises 
 as to its custody."*' The rules applicable in the case of legitimate 
 children °^ are equally applicable here. On the death of the mother 
 of a bastard, it becomes an orphan in law, even though its father 
 is living, and claims its custody." ° 
 
 The domicile of a bastard is determined by that of its mother,"" 
 
 B3 Sunmons v. Bull, 21 Ala. 501, 56 Am. Dec. 257. 
 
 5* Eaton V. .Eaton, 88 Conn. 269, 91 Atl. 191 ; Moore v. Saxton, 90 Conn. 
 164, 96 Atl. 960, Ann. Cas. 1917C, 534; Purinton v. Jamrock, 195 Mass. 187, 
 80 N. B. 802, 18 I/. R. A. (N. S.) 926. 
 
 65Eeg. V. Nash, 10 Q. B. Dlv. 454; Rex v. New, 20 Tlm^s Law R. 583; 
 Reg. V. Barnardo, 24 Q. B. Div. 283; Ex parte Knee, 1 Bos. & P. (N. R.) 
 148; Marshall v. Reams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118; 
 Aycock V. Hampton, 84 Miss. 204, 36 South. 245, 65 L. R. A. 689,^05 Am. 
 St. Rep. 424; Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49; In re Moore, 72 
 Misc. Rep. 644, 132 N. Y. Supp. 249; Ex parte Bryon, 83 Vt. 108, 74 Atl. 488; 
 Purinton v. Jamrock, 195 Mass. 187, 80 N. E. 802, 18 L. R. A. (N. S.) 926 ; 
 Friesner v. Symonds, 46 N. J. Bq. 521, 20 Atl. 257; Robalina v. Armstrong, 
 15 Barb. (N. Y.) 247; Wright v. Wright, 2 Mass. 109; Carpenter v. Whit- 
 man, 15 Johns. (N. Y.) 208; Com. v. Fee, 6 Serg. & R. (Pa.) 255; Town of 
 Hudson V. Hills, 8 N. H. 417; Lawson v. Scott, 1 Yerg. (Tenn.) 92; Adams 
 y. McKay, 36 Ga. 440; Pratt v. Nitz, 48 Iowa, 33. But see Hesselman v. 
 Haas, 71 N. J. Eq. 689, 64 Atl. 165, holding that as against any person ex- 
 cept the putative father, the motner of a natural child has the natural right 
 to its custody. 
 
 68 Marshall v. Reams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118. 
 
 s7Reg. V. Nash, 10 Q. B. Div. 454; Marshall v. Reams, 32 Ma. 499, 14 , 
 South. 95, 37 Am., St. Rep. 118 ; In re Lloyd, 3 Man. & G. 547. 
 
 6 8 Post, p. 343. 
 
 B9 Friesner v. Symonds, 46 N. J. Bq. 521, 20 Atl. 257. 
 
 80 2 Kent, Comm. 214; Dicey, Dom. 5; Blythe v. Ayres, 96 Cal. 532, 31 
 aiFF.P.& D.Eel.(3d Ed.)— 20 
 
306 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 In the absence of proof of her domicile, the child will be presumed 
 to be settled in the place of its birth. *^ 
 
 At common law the father is under no legal obligation to main- 
 tain his illegitimate children, for as has been seen, in the eye of the 
 common law, an illegitimate child has no father, but is regarded 
 as nuUius filius/^ But the father is liable on an express promise 
 to pay for support and maintenance to be furnished to his illegiti- 
 mate children, and on an implied contract to pay tlierefor where 
 he has adopted the child as his own, and acquiesced in any par- 
 ticular disposition of it.'^ It has been held that the mother, even 
 in the absence of a statute, is bound to maintain her illegitimate 
 child,'* and she is in consequence theredf entitled to the child's 
 services.'^ 
 
 In England, and in most of our states, statutes have been enact- 
 
 Pac. 915, 19 L. E.. A. 40; Inhabitants of Monson v. Inhabitants of Palmer, 
 8 Allen (Mass.) 551. 
 
 «i Guardians of Headington Union v. Guardians of Ipswicb. Union, 25 Q. 
 B. Div. 143, 
 
 62 Moncrlef v. Ely, 19 Wend. (N. Y.) 405; Todd v. Weber, 95 N. T. 181, 47 
 Am. Eep. 20; Bissell v. Myton, 160 App. Div. 268, 145 N. Y. Supp. 591, af- 
 firmed 214 N. Y. 672, ,108 N. B. 1089; Simmons v. Bull, 21 Ala. 501, 56 
 Am. Dec. 257 ; Glidden v. Nelson, 15 111. App. 297 ; Nine v. Starr, 8 Or. 49 ; 
 Wiggins V. Keizer, 6 Ind. 252; Duncan v. Pope, 47 Ga. 445. But see Best 
 V. House' (Ky.) 113 S. W. 849; Sanders v. Sanders, 167 N.C. 319, 83 S. B. 
 490; State v. Kucker, 86. S. C. 66, 68 S. E. 133, holding that there is a 
 natural and moral duty on the father to support his illegitimate child. 
 
 63 Todd V. Weber, 95 N. Y. 181, 47 Am. Bep. 20, and cases cited thereinl 
 Knowlman v. Bluett, L. K. 9 Exch. 307; Hicks v. Gregory, 19 Law J. C. P. 
 81 ; Wiggins v. Keizer, 6 Ind. 252 ; Franklin v. Ford, 13 Ga. App. 469, 79 S. 
 
 'B. 366; Burton v. Belvin, .142 N. C. 151, 55 S. E. 71; Moncrlef v. Ely, 19 
 Wend. (N. Y.) 405 ; Birdsall v. Edgerton, 25 Wend. (N. Y.) 619 ; Hesketh v. 
 ■Gowing, 5 Esp. 131. But not, it , seems, where the woman was married to 
 another at the time the child was begotten. Vetten v. Wallace, 39 111. App. 
 390. An agreement by a man to pay for the maintenance of children Which 
 may result from future illicit cohabitation is void, because of its immoral 
 tendency. Clark, Cont. 439; Crook v. Hill, 3 Ch. Div. 773. But such an 
 agreement as to children already born, or as to a child in ventre sa mere, is 
 valid; the illicit intercourse in such case being past. Clark, Cont. 439; 
 Crook V. Hill, 3 Ch. Div. 773. The moral obligation of a father to support 
 his Illegitimate children is a sufficient consideration for his bond so to dp. 
 Trayer v. ^etzer, 72 Neb. 845, 101 N. W. 989. 
 
 64 Wright V. Wright, 2 'Mass. 109; Friesner v. Symonds, 46 N. J. Bq. 521, 
 20 Atl. 257, 259 ; Nine v. Starr, 8 Or. 49 ; Carpenter v. Whitman, 15 Johns. 
 <N. Y.) 208; People- v. Landt, 2 Johns. (N. Y.) 375; Com. v. Fee, 6 Setg. & 
 R. (Pa.) 255; Town of Hudson v. Hills, 8 N. H. 417. And see People ,v-' 
 Chamberlain (Sup.) 106 N. Y. Supp. 149 (under statute). 
 
 65 Illinois Central K. Co. v. Sanders, 104 Miss. 257, 61 South. 309, 44 L. 
 R. A. (N. S.) 1137. 
 
§ 11*) STATUS OF HiLBGITlMATE CHILDREN 307 
 
 ed making the father chargeable with the maintenance of. his 
 illegitimate children, for the purpose of relieving the parish or 
 county of the expense. And in most states, by statute, the mother 
 has a compulsory remedy, generally known as "bastardy proceed- 
 ings," to compel the father to support the child." 
 
 Inheritance by and from Bastards 
 
 At common law the rights of an illegitimate child were much 
 restricted. Blackstone says : "The rights are very few, being only 
 such as he can acquire; for he can inherit nothing, being looked 
 upon as the son of nobody, and sometimes called 'filius.nullius,^ 
 sometimes 'filius populi.' " "'' At common law he cannot inherit 
 property from any one, for, while his blood relationship to his 
 mother" is recognized for certain purposes, he has no legal status as 
 child and heir.°* Nor can he have heirs except of his own body.'* 
 "A bastard," says Kent, "being, in the eye of the law, nullius filius, 
 or, as the civil law, from the difficulty of ascertaining the father, 
 equally concluded, patrem habere non intelliguntur, he has no in-' 
 heritable blood, and is incapable of inheriting as heir, either to his 
 putative father, or his mother, or to any one else; nor can he have 
 heiVs but of his own body. The rule of the common law, so far at 
 least as it excludes him from inheriting as heir to his mother, is 
 
 «6 St. 18 Eliz. c. 3; 4 & 5 Wm. IV, c. 76, § 72; Mann v. People, 35 III. 
 467; Maloney.v. People, 38 111 62; State v. Evans, 19 Ind. 92; Scantland 
 V. Com., 6 J. J. Marsh. (Ky.) 585; Bailey v. Chesley, 10 Gush. (Mass.) 284; 
 Wilbur V. Crane, 13 Pick. (Mass.) 284; People v. Harty, 49 Mich. 490, 13 N. 
 W. 829 ; State v. Nichols, 29 Minn. 357, 13 N. W. 153 ; State v. Muahied, 12 
 Wis. 561 ; Van Tassel v. State, 59 "Wis." 351, 18 N. W.. 328. There is a valuable 
 note on this subject covering, also, the procedure, evidence, etc., under the 
 statutes, in 56 Am. Dec. 210-223. 
 
 «f 1 Bl. Comm. 459. 
 
 88 1 Bl. Comm. 459; 2 Kent, Comm. 213; Houghton v. Dickinson, 196 
 Mass. 389, 82 N. E. 481; State v. McDonald, 59 Or. "520, 117 Pac. 281; 
 Hayworth v. Williams, 102 Tex. 308, 116 S. W. 43, 132 Am. St. Kep. 879; 
 Jackson v. Hocke, 171 Ind. 371, 84 N. E. 830; Berry v. Powell, 47 Tex. Civ. 
 App. 599, 105 S. W. 345; Hicks v. Smith, 94 Ga. 809, 22 S. E; 153. The 
 civil law was different as regards inheritance from the mother. Pettus v. 
 Dawson, 82 Tex. 18, 17 S. W. 714. 
 
 69 1 Bl. Comm. 459; 2 Kent, Comm. 213; Cooley v. Dewey, 4 Pick. (Mass.) 
 93, 16 Am. Dec. 326 ; Stover v. Boswell's Heir, 3 Dana (Ky.) 233 ; Barwiek 
 V. Miller, 4 Desaus. (S. C.) 434; Bent's Adm'r v. St. Vrain, 30 Mo. 268; 
 State V. McDonald, 59 Or. 520, 117 Pac. 281 ; GROAN v. PHELPS' ADM'R, 94 
 Ky. 213, 21 S. W. 874, 23 L. R. A. 753, Cooley Gas. Persons and Domestic 
 Relations, 164. 
 
308 LEGITIMACY, ILLEGITIMACY, AND ADOPTION , (Ch. 8 
 
 supposed to be founded partly in policy, to discourage illicit com- 
 merce between the sexes." '" 
 
 The harsh rules of the common law, in so far as they rendered a 
 bastard incapable of inheriting as heir, and of having heirs except 
 of his own body, have been greatly modified by statute in this 
 country/"- In most states it is npw provided by statute that bas- 
 tards shall inherit from or through their mother share and share 
 alike with her legitimate children.''^ "This relaxation in the laws 
 of go many of the states, of the severity of the common law, rests 
 -upon the principle that the relation of parent and child, which ex- 
 ists in this unhappy case in all its native and binding force, ought to 
 produce the ordinary legal consequences of that consanguinity." ^' 
 So, also, in most states, by statute, bastards may not only have 
 heirs of their own body, as at common law, but they may transmit 
 to their mother and her kin, as if legitimate.''* In 'some states, bas- 
 
 70 2 Kent, Comm. 213. 
 
 71 The right of inheritance of illegitimate children is purely statutory, 
 and unless given by statute no such right exists. Mansfield v. Neff, 43 
 Utah, 258, 134 Pac. 1160. Illegitimate children are not favored in the law, 
 and have only such property rights as are expressly granted by statute. 
 Bell V. Terry & Tench Co., 177 App. Div. 123, 163 N. Y. Supp. 733. The 
 Legislature can remove the disabilities of illegitimate children as the right 
 of inheritance is a creature of the law and can be changed by the Legislature 
 at any time and to any extent. Wolf v. Gull, 32 Oal. App. 286, 163 Pac. 346, 
 350. 
 
 72 Stim. Am. St. Law, § 3151. See Alexander's Adm'r v. Alexander, 31 
 Ala. 241 ; Neil's Appeal, 92 Pa. 193 ; Stover v. Boswell's Heir, 3 Dana (Ky.) 
 233 ; Jackson v. Collins, 16 B. Mon. (Ky.) 21^ ; McGuire v. Brown, 41 Iowa, 
 650 ; Lee v. Prater (Tex. Civ. App.) 185 S. W. 325 ; Hahn v. Hammerstein, 
 272 Mo. 248, 198 S. W.. 833; Moore v. Saxton, 90 Conn. 164, 96 Atl. 960, 
 Ann. Cas. 1917C, 534; Eaton v. Baton, 88 Conn. 269, 91 Atl. 191; Smith v. 
 Garber, 286 111. 67, 121 N. ?3. 173. 
 
 73 2 Kent, Comm. 213. 
 
 7* Stim. Am. St. Law, § 3154. See Garland v. Harrison, 8 Leigh (Va.) 
 368 ; Neil's Appeal,' 92 Pa. 193 ; Keese v. Starner, 106 Md. 50, 66 Atl. 443 ; 
 Osborne v. McDonald (C. C.) 159 Fed. 791, affirmed 167 Fed. 894, 93 C. C. A 
 294; Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 346;. Dickinson's 
 Appeal, 42 Conn. 491, 19 Am. Rep. 553 ; ' Ellis v. Hatfield, 20 Ind. 101 ; No- 
 lasco V. Lurty, 13 La. Ann. 100; Remmington v. Lewis, 8 B. Mon. (Ky.) 
 606; Blankenshlp v. Ross, 95 Ky. 306, 25 S. W. 268. See, also, Lewis v. 
 Butsler, 4 Ohio St. 354. A statute providing that "bastards shall be capable 
 of inheriting and transmitting an inheritance on the part of or to the 
 mother" does not provide for the transmission of a bastard's estate through 
 the mother and on to her collateral kindred. CROAN v. PHELPS' ADM'R, 94 
 Ky. 213, 21 S. W. 874, 23 L. K. A. 753, Cooley Cas. Persons and Domestic Re- 
 lations, 164; McSurley v. Venters (Ky.) 104 S. W. 365. See, also, Blair v. 
 
§ 114) STATUS OF ILLEGITIMATE CHILDREN 309 
 
 tards may not only inherit from their mother, but they may repre- 
 sent her so as to inherit from her kin/" and in several states the il- 
 legitimate children of the same mother may inherit from each other 
 through their mother.' « In other states illegitimate children can 
 inherit only from the mother." 
 
 Of course, at common law an illegitimate child could not inherit 
 from its father.'^ But such right is given by statute in many states, 
 if there was proper acknowledgment of the child by the father.'^" 
 In some states, on the fajlure of legitimate heirs, an illegitimate 
 child may inherit from its father.*" 
 
 Adams (C. C.) 59 Fed. 243; University of North Carolina v. Markham, 174 
 N. O. 338, 93 S. B. 845. 
 
 7= See Doe v. Bates, 6 Blackf. (Ind.) 533; Waggoner v. MUler, 26 N. O. 
 480; Berry v. PoweU, 47 Tex. Civ. App. 599, 105 S. W. 345; Keech v. Bn- 
 riquez, 28 Pla. 597, 10 South. 91 ; Barron v. Zimmerman, 117 Md. 296, 83 
 Atl. 258, Ann. Cas. 1914D, 574; Chambers v. Chambers, 249 111. 126, 94 
 N. E. 108. See, also, Tigert v. Wells, 134 Tenn. 144, 183 S. W. 737. But it 
 was held in Thigpen v. Thigpen, 136 Ga. 541, 71 S. E. 790, that an illegiH- 
 mate is not, on the death of his mother, capable of inheriting from his ma- 
 ternal grandfather. 
 
 Te Curlew V. Jones, 146 Ga. 367, 91 S. E. 115; In re Lutz's Estate, 43 Misc. 
 Rep. 230, 88 N. Y. Supp. 55&; Berry v. Tullis (Tex. Civ. App.) 105 S. V- 
 348; Yates v. Craddock (Tex. Civ. App.) 184 S. W. 276; McOline v. Ridley, 
 134 Tenn. 164, 183 S. W. 736. 
 
 *T Jackson v. Jackson, 78 Ky. 390, 39 Am. Rep. 246; McSurley v. Ven- 
 ters, 104 S. W. 365, 31 Ky. Law Rep. 963; Overton v. Overton, 123 Ky. 311, 
 96 S. W. 469 ; Reynolds v. Hitchcock, 72 N. H. 340, 56 Atl. 745 ; Brown v. 
 Kerby, 9 Humph. (Tenn.) 460. A statute making bastards capable of inherit- 
 ing "on the part of their mother" does not enable a bastard to inherit from 
 collateral kindred of his mother. Williams v. Kimball, 35 Ela. 45, 16 South. 
 783, 26 L. R. A. 746, 48 Am. St. Rep. 238 ; Holmes v. Adams, 110 Me. 167, 85 
 Atl. 492. But see Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 345. 
 
 7 8 Houghton V. Dickinson, 196 Mass. 389, 82 N. B. 481; Pair v. Pair, 147 
 Ga. 754, 95 S. E. 295. 
 
 ''» See the statutes 'of the various states. See, also, McKellar v. Harkins, 
 183 Iowa, 1030, 166 N. W. 1061 ; Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 350 ; 
 Rentie v. Rentle (Okl.) 172 Pac. 1083; Pederson v. ChristofCerson, 97 Minn. 
 491, 106 N. W. 958 ; Moore v. Mack, 77 Neb. 52, 108 N. W. 143. Such stat- 
 utes are remedial, and should be liberally construed. Wilson v. Bass (Ind. 
 App.t 118 N. E. 379. The right of inheritance may be given by special act of 
 the legislature. See Davis v. Milford, 85 S. C. 504, 67 S. E. 744. 
 
 80 Cox V. Rash, 82 Ind. 519 ; Haddon v. Crawford, 49 Ind. App. 551, 97 N. 
 E. 811. Under Burns' Ann. St. 1914, §§ 870, 871, an adopted child is a "legiti- 
 mate chUd," whose survivorship of his adopting father bars right of inherit- 
 ance of illegitimate children of the father under Burns' Ann. St. 1914, § 
 3000. Cooley v. Powers, 63 Ind. App. 59, 113 N. E. 382. 
 
810 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Cll. 8 
 
 ADOPTION OF CHILDREN 
 
 115. By statute, in most jurisdictions, but not at common law, a 
 , person may adopt a child ; and in such a case, unless there 
 are statutory provisions to the contrary, the rights, duties, 
 and obligations arising from the artificial relation will be 
 substantially the same as those arising from the natural re- 
 lation of parent and child. 
 
 Adoption is the act by which the relations of paternity and af- 
 filiation are recognized as legally existing between persons not so 
 related by nature.*^ The legal adoption by one person of the off- 
 spring of another, giving him the status of a child by adoption, was 
 unknown to the common law,*^ and in the sense in which the term 
 is used in the United States is not recognized in England.*' It was 
 recognized, however, by the Roman law, and exists in many coun- 
 tries on the continent of Europe, which derive their Jurisprudence 
 from that law. It was long ago introduced, from the law of France 
 or of Spain, into Louisiana and Texas, and more recently, at various 
 times and by different statutes, into most of the other states.** 
 
 Since it was unknown to the common law, adoption exists in the 
 United States only by virtue of statute.*^ Though the statutes au- 
 
 si In re Sessions' Estate, 70 Mich. 29T, 38 N. W. 249, 14 Am. St Rep. 500. 
 For other definitions, see 1 Words and Phrases, pp. 206, 207. 
 
 82AlbTing V. Ward, 137 Mich. 352, 100 N. W. 609; Morrison v. Sessions' 
 Estate, 70 IVTich. 297, 38 N. W. 249, 14 Am. St. Rep. 500; In re Huyck, 49 
 Misc. Rep. 391, 99 N. T. Supp. 502 ; In re Jobson's Estate, 164 Cal. 312, 128 
 Pac. 938, 43 L. R. A. (N. S.) 1062 ; Ex parte Livingston, 151 App. Div. 1, 135 
 N. Y. Supp. 328 ; Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 585, 8 U R. A. 
 (N. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775. 
 
 83 Eversley, Law of Domestic Relations (3d Ed. 1906) pt. 2, c. 2, p. 514, 
 This authority -says: "The law of England, strictly speaking, knows nothing 
 of adoption, and does not recognize any rights, claims, or duties arising out 
 of such a relation, except as arising out of an express or implied contract. 
 But, in so far as the court of chancery will, in the interests- of the children, 
 enforce the waiver or abandonment of the control of the father (or mother), 
 up to that point it might be said to countenance the claim of the adoptive 
 parent, not on the ground of any right in the latter, but of the material 
 well-being of the infant." Adoption is unknown in Scotland. See Kerrigan 
 V. Hall, [1901] 4 Sess. Cas. 10. 
 
 84 Ross V. Ross,' 129 Mass. 243, 37 Am. Rep. 321. Adoption in Texas, how- 
 ever, gives the adopted person only the status of heir of the adopter, and does 
 not create the relation of parent and child. Eckford v. Knox, 67 Tex 205 2 
 S. W. 372. 
 
 80 Morrison v. Sessions' Estate, 70 Mich. 297, 38 N. W. 249, 14 Am. St. Rep. 
 
§ 115) ADOPTION OF CHILDREN 311 
 
 thorizing adoption of children are in derogation of the common law, 
 and for this reason are, in some respects to be strictly construed,"' 
 so that, in order that there may be a legal adoption, there must be a 
 substantial compliance with the terms of the statute," yet the con- 
 struction should not be narrowed so closely as to defeat the legisla- 
 tive intent.** 
 
 Proceedings to Adopt 
 
 The statutes relating to adoption vary so widely in the different 
 states, that only the most general statement of the provisions gov- 
 erning adoption can be made. Whether the statute contains ex- 
 press provisions as to the age of the person adopting another or 
 not it is contemplated that the adopter shall be of suitable age to 
 assume the parental relation."" In some states, if the adopter is 
 
 500 ; In re Thome's Will, 155 N. Y. 140, 49 N. E. 661 ; In re Oozza, 183 Gal. 
 514, 126 Pac. 161, Ann. Cas, 1914A, 214; Eahn v. Hamilton, 144 Ga. 644, 
 87 S. E. 1061; Hillers v. Taylor, 108 Md. 148, 69 Atl. 715; In re Sharon's Es- 
 tate, 179 Cal. 447, 177 Pac. 283. Of the states whose jurisprudence is based 
 on the common law, Massachusetts seems to have been the first state to enact 
 statutes relating to adoption. Koss v. Aoss, 129 Mass. 243, 37 Am. Kep. 321. 
 
 86 Furgeson v. Jones, 17 Or. 204, 20 Pac. 842, 3 A. L. R. 620, 11 Am. St. 
 Hep. 808; Bresser v. Saarman, 112 Iowa, 720, 84 JST. W. 920; Appeal of 
 Woodward, 81 Conn. 152, 70 Atl. 453 ; Purinton v. Jamrock, 195 Mass. 187, 
 80 N. E. 802, 18 L. R. A. (N. S.) 926 ; Long v. Dufer, 58 Or. 162, 113 Pac. 59. 
 The adoption statutes of Texas ingrafted on the law of the state the provi- 
 sions of the civil law, as well as its construction of the law. Harle v. Harle 
 (Tex. Oiv. App.) 166 S. W. 674. 
 
 8'Appeal of Woodward, 81 Conn. 152, 70 Atl. 453; Long v. Dufur, 58 Or. 
 162, 113 Pac. 59; People v. Wethel, 202 111. App. 77; In re Sharron's Estate, 
 179 Cal. -447, 177 Pac. 283. ' ' 
 
 88 Ferguson v. Herr, 64 Neb. 649, 90 N. W. 625, 94 N. W. 542 ; In re 
 Brown's Adoption, 25 Pa. Super. Ct. 259. While the Adoption Act is in 
 derogation of the common law in so far as judgments under it deprive par- 
 ents of their natural rights to the custody of their children, it is, on the oth- 
 er hand, highly remedial and charitable in that it provides a method where- 
 by children who would otherwise be the objects of public charity are suit- 
 ably provided for by persons who assume a legal duty to do so. People v. 
 Wethel, 202 111. App. 77. The adoption statutes, being humane and salutary, 
 and designed to provide homes, care, and education for unfortunate children, 
 should be construed so as to encourage the adoption of such children by per- 
 sons who can properly rear and educate them. In re Havsgord's Estate, 34 
 S. D. 131, 147 N. W. 378. 
 
 8 9 Krug V. Davis, 87 Ind. 590. In Massachusetts the statute (Pub. St. 1882, 
 c. 148, § 1) authorizes a person over 21 to adopt one younger than himself, 
 See Collamore v. Learned, 171 Mass. 99, 50 N. B. 518. In North Dakota the 
 statute authorizes any adult to adopt a minor, but the adopter must be at 
 lease 10 years older than the person adopted. Oomp. Laws 1913, §§ 4441, 
 4442. It is jurisdictional that the person adopting a child must be 10 years 
 older than the child. In re Sharron's Estate, 179 Oal. 447, 177 Pac. 283. 
 
312 LEGITIMACY, ILLBGITIMACT, AND ADOPTION (Ch. 8 
 
 married, both the husband and Wife must join in the adoption."* 
 In the absence of statute, either spouse may adopt a child without 
 the other joining therein; °^ but in such case the adoption confers 
 no rights and creates no duties as between the child and the spouse 
 not joining."^ In some states nonresidents may not adopt children 
 residents of the state,"' though other states have no such restric- 
 tion."* ' 
 
 If the statute provides for the adoption of minors, necessarily 
 the person adopted must be under 21 years of age."° There is some 
 difference of opinion^ where the statute provides for the adoption 
 of a "child." In some jurisdictions such statutes have been con- 
 strued as referring to minor children only;"" but the weight of 
 authority is that under such statutes adults as well as minors may 
 be adopted."^ 
 
 It is generally required that the parents of the child to be adopt- 
 ed, or the survivor of them, must consent to the adoption, unless 
 such parents have abandoned the child or otherwise forfeited the 
 right to its custody."* If the parents are dead, or have abandoned 
 
 90 In re Williams, 10^ Cal. 70, 36 Pae. 407, 41 Am. St. Eep. 163 ; Watts v. 
 Dull, 184 111. 86, 56 N. E. 303, 75 Am. St. Eep. 141 j Jones v. Bean, 136 III. 
 App. 545. 
 
 9iBamlilzel v. Ferrell, 47 Ind. 335; Baskette v. Streight, 106 Tenn. 549, 
 62 S. W. 142 ; In re Carroll's Estate, 219 Pa. 440, 68 Atl. 1038, 123 Am. St 
 Eep. 673. 
 
 82 Baskette v. Streight, 106 Tenn. 549, 62 S. W. 142; In re Carroll's Es- 
 tate, 219 Pa. -440, 68 Atl. 1038, 123 Am. St. Eep. 673. 
 
 93 Knight V. Callaway, 42 Wash. 413, 85 Pae. 21; Appeal of Woodward, 81 
 Conn. 152, 70 Atl. 453. 
 
 94 Caldwell's Succession, 114 La. 195, 38 South. 140, 108 Am. St. Eep. 341. 
 
 96 Bartholow v. Davies, 276 :[J1. 505, 114 N. E. 1017 ; McCollister v. Yard, 
 90 Iowa, 621, 57 N. W. 447. See, also, Comp. Laws N. D. 1013, § 4441. 
 
 9 6 Anonymous, 1 Wkly. Notes Cas. (Pa.) 576; Williams v. Knight, 18 E. 1. 
 333, 27 Atl. 210. 
 
 97 Markover v. Krauss, 132 Ind. 294, 31 N. E. 1047, 17 L. E. A. 806; Colla- 
 more v. Learned, 171 Mass. 99, 50 N. E. 518; Sheffield v. Franklin, 151 Ala. 
 492, 44 South. 373, 12 L. E. A. (N. S.) 884, 125 Am. St. Eep. 37, 15 Ann. Cas. 
 90 ; In re Moran, 151 Mo. 555, 52 S. W. 377 ; Succession of Caldwell, 114 I^a. 
 195, 38 South. 140, 108 Am. St. Eep. 341. But see Succession of Pizzati, 141 
 La. 645, 75 South. 498. 
 
 98 In re Williams, 102 Cal. 70, 36 Pae. 407, 41 Am. St. Eep. 163; Baker v. 
 Strahorn, 33 111. App. 59 ; Luppie v. Winans, 37 N. J. Eq. 245 ; Ferguson v. 
 Jones, 17 Or. 204, 20 Pae. 842, 3 L. E. A. 620, 11 Am. St. Eep. 808 ; In re Mc- 
 cormick's Estate, 108 Wis. 234, 84 N. W. 148, 81 Am. -St. Eep. 890; Willis v. 
 Bell, 86 Ark. 473, 111 S. W. 808 ; I^ re McDevitt, 176 App. Dlv. 418, 162 N. 
 y. Supp. 1032; In re Knott, 138 Tenn. 349, 197 S. W. 1097; In re Lease, 99 
 Wash. 413, 169 Pae. 816. The mere fact that the parents of the child have 
 
§ 115) , ADOPTION OP CHILDREN 313 
 
 the child, consent may be given by the person having the legal 
 custody of the child." 
 
 Though the statutes in several states provide for adoption by 
 deed or declaration,^ it is generally required that adoption shall be 
 by judicial proceedings in a court of Competent jurisdiction. Resi- 
 dence, either permanent or temporary, is usually sufficient to give 
 the court jurisdiction.^ The statutes usually require that the per- 
 son seeking to adopt a child shall file a petition setting forth the 
 necessary facts,* and that proper notice shall be given to the par- 
 ents of the child to be adopted, or other persons interested.* If the 
 
 been divorced does not as a rule do away with the necessity of the consent of 
 both parents. In re Lease, 99 Wash. 413, 169 Pac. 816; In re Cozza, 163 
 Cal. 514, 126 Pac. 161, Ann. Gas. 1914A, 214. Where a child had been 
 adopted by its paternal grandparents, the child was subject to subsequent 
 adoption by its maternal grandmother, without notice to or consent of the 
 child's natural father. In re McRae, 189 N. T. 142, 81 N. E. 956, 12 Ann. 
 Gas. 505. 
 
 »9 Burger v. Frakes, 67 Iowa, 460, 23 N. W. 746, 25 N. "Sy. 735; Holmes v. 
 Derrig, 127 Iowa, 625, 103 N. W. 973; Ghubb v. Bradley, 58 Mich. 208, 25 
 N. W. 186; EgofC v. Board of Ghildren's Guardians of Madison County, 170 
 Ind. 238, 84 N. E. 151. Where a child was never legally rendered to or 
 placed in custody of a children's aid society, it never had authority to legally 
 act as its guardian and consent to its adoption. Ex parte Martin, 29 Idaho, 
 716, 161 Pac. 573. The mere failure of parents to support a child is not aban- 
 donment, but there must be a giving up of the child or total desertion. In 
 re Kelly, 25 Oal. App. 651, 145 Pac. 156. And see In re Wright, 79 Neb. 10, 
 112 N, W. 311. In Iowa consent to adoption of an abandoned child may be 
 given by the mayor of the city. Anderson v. Blakesly, 155 Iowa, 430, 136 N. 
 W. 210. 
 
 1 See, for example, Abney v. De Loach, 84 Ala. 393, 4 South. 757 ; Fos- 
 burgh V. Rogers, 114 Mo. 122, 21 S. W. 82, 19 L. B. A. 201; Hilpire v. Claude^ 
 109 Iowa, 159, 80 N. W. 332, 46 L. K. A. 171, 77 Am. St. Rep. 524 ; Manuel 
 V. Beck, 70 Misc. Rep. 357, 127 N. X. Supp. 266. 
 
 2 Rives V. Sneed, 25 Ga. 612; Glos v. Sankey,, 148 111. 536, 36 N. E. 628, 
 23 L. R. A. 665, 39 Am. St. Rep. 196 ; In re Brown's Adoption, 25 Pa. Super. 
 Gt. 259. 
 
 3 Watts V. DuU, 184 111. 86, 56 N. E. 303, 75 Am. St. Rep. 141 ; In re McCor- 
 mick's Estate, 108 Wis. 234, 84 N. W. 148, 81 Am. St. Rep. 890; In re Edds, 
 137 Mass. 346. Husband and wife must join in the petition. Davis v. Mc- 
 Graw, 206 Mass. 294, 92 N. B. 332, 138 Am. St. Rep. 398. 
 
 4 In re Humphrey, 137 Mass. 84 ; Glos v. Sankey, 148 111. 536, 36 N. E. 628, 
 23 L. R. A. 665, 39 Am. St. Rep. 4.96; Parsons v. Parsons, 101 Wis. 76, 77 
 N. W. 147, 70 Am. St. Rep. 894 ; Omaha Water Co. v. Sehmal, 147 Fed. 502, 
 78 C. C. A. 68 (construing Nebraska statute) ; People v. Sullivan, 126 111. 
 App. 389. Under Thompson's Shannon's Code, §§ 5409-5411, relating to adop: 
 tion, but not providing for notice to the natural parents of child to be adopt- 
 ed, some notice to and some appearance of such parents must be shown, 
 though the notice need not necessarily be a formal notice. In re Knott, 138 
 Tenn. 349, 197 S. W. 1097. 
 
314 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. & 
 
 Statutory requirements have been substantially complied with, and? 
 it appears that the best interests of the child will be promoted 
 thereby the court will in the exercise of its discretion enter an order 
 or decree of- adoptian.^ 
 
 Status' of Adoptive Parent and Child 
 
 Where the artificial relation of parent and child is created by , 
 adoption under the statutes, the relation will, by the express pro- 
 visions of most of the statutes, and even independently of such 
 express provisions, give rise to substantially the same rights, du- 
 ties, apd liabilities as arise out of the natural relation.* The law,' 
 cannot, and does not purport to, do the work of nature, and create 
 one a child who by nature is a stranger.' But it can and does fix 
 the status of the adoptive child to the adoptive parent as substan- 
 tially the same as the status of a natural child.* By the act of 
 adoption, the child becomes, in a legal sense, the child of the adop- 
 tive parent.' The general effect of adoption, therefore, is, with few 
 exceptions, to place the parties in the legal relation of parent and 
 child, with all the legal consequences.^" The law declares the sta- 
 tus, and from the status, as a necessary consequence, spring the or- 
 
 5 In re Ward's Estate, 59 Misc. Eep. 328, 112 N. Y. Supp. 282 ; In re Wells, 
 60 Wash. 518, 111 Pae. 778. The welfare of the child is the controlling fac- 
 tor in the determination of adoption proceedings. Knight v. Galloway, 42' 
 Wash. 413, 85 Pac. 21 ; In re Peterson's Estate, 212 Pa. 453, 61 Atl. 1005 ; In 
 re Sharron's Estate, 179 Cal. 447, 177 Pac. 283. The Supreme Court, in the 
 exercise of its equity jurisdiction, may annul an adoption to promote the' 
 child's welfare. In re McDevitt, 176 App. Div. 418, 162 N. T. Supp. 1032. 
 Lawfully rendered (^ecree of adoption adjudicates status of minor as to fu- 
 ture parentage at law and extinguishes parental rights of natural parents, 
 and the court has no continuing jurisdiction -as in guardianship or divorce- 
 proceedings. In re Lease, 9,9 Wash. 413, 169 Pac. 816. An adoption is Ipso 
 facto revoked by a second adoption of the child by other persons; the adop- 
 tive parent consenting thereto. Klapp v. Pulsipher, 197 Mich. 615, 164 N. W. 
 381, L. R. A. 1918A, 818. 
 
 6 As to the rights and duties arising out of the natural relation of parent 
 and child, see post, pp. -321, 339. 
 
 ' Adoption does not change the child's identity, nor make him a child in 
 fact. In re Puterbaugh's Estate, 261 Pa. 235, 104 Atl. 601, 5 A. L. R 1277. 
 
 s Eiley v. Day, 88 Kan. 503, 129 Pac. 524, 44 L. H. A. (N. S.) 296 ; Kroff v. 
 Amheln, 94 Olalo St. 282, ll4 N. E. 267 ; Scott v. Scott (D. C.) 247 Fed. 976 ; 
 Franklin v. Fairbanks, 99. Kan. 271, 161 Pac. 617. 
 
 , Miller v. Miller, 123 Iowa, 165, 98 N. W. 631 ; Rives v. Sneed, 25 Ga. 
 612. 
 
 10 In re Knott, 138 Tenn. 349, 197 S. W. 1097. On readoptlon the rights of" 
 the first adopter are ipso facto terminated. Klapp v. Pulsipher, 197 Mich. 
 615, 164 ]Sr. W. 381, L. R. A. 1918A, 818. 
 
§ 115) ADOPTION OF CHILDEEN 315 
 
 dinary rights, duties, and liabilities wh'ich arise out of the same 
 status created by nature." In Texas, however, adoption does not 
 constitute the adopted person a member of the family of the adopt- 
 er, nor does it confer the privileges or impose the duties of parent 
 and child. The person adopted is adopted merely as heir and not as 
 child of the adopter.^^ 
 
 In accordance with the general principles set forth above, the 
 adoptive parent is entitled to the custody,^' services, and earnings 
 of the adopted child,^* and is bound to support and maintain such 
 child.^" The adopted child acquires the domicile of its parent by 
 adoption,^° and its domicile will change with the change of domicile 
 of the adopting parent.^^ The property rights of an adopted child 
 are substantially the sanae as those of a natural child,^* and conse- 
 quently the adopting parent is entitled to 'dispose of his property 
 by will as he may see fit.^° 
 
 11 Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788; Paul v. Davis, 100 
 Ind. 422; Dunay v. Vantyne, 40 Vt. 503; Sewall v. Roberts, 115 Mass. 262; 
 Burrage v. Briggs, 120 Mass. 103; Rives v. Sneed, 25 Ga. 612; Moran v. 
 Stewart, 122 Mo. 295, 26 S. W. 962. 
 
 12 Harle v. Harle (Tex.) 204 S. W. 317, reversing (Tex. Civ. App.) 166 S. W. 
 -674; Bckford v. Knox, 67 Tex. 205, 2 S. W. 372; State ex rel. Walton v. 
 Yturria (Tex.) 204 S. W. 315, L. R. A. 1917F, 1079. 
 
 isTilley v. Harrison, 91 Ala. 295, 8 South. 802; In re Clements, 78 Mo. 
 352. As to religious training of adopted child, see Purinton v. Jamrock, 195 
 Mass. 187, 80 N. E. 802, 18 L. R. A. (N. S.) 926. 
 
 i*Tilley v. Harrison, 91 Ala. 295, 8 South. 802. And see In re Carroll, 219 
 Pa. 440, 68 Atl. 1038, 123 Am. St. Rep. 673. The adopting parent may main- 
 tain an action for damages for the wrongful deatli of the adopted child. 
 Ransom y. New York, G. & St. L. Ry. Co., 93 Ohio St. 223, 112 N. E. 586, 
 L. R. A. 1916E, 704. And see Carpenter v. Buffalo General Electric Co., 213 
 N. Y. 101, 106 N. E. 1026, Ann. Cas. 1916C, 754. But see Mount v. Tre- 
 mount Lumber Co., 121 La. 64, 46 South. 103, 16 L. B. A. (N. S.) 199, 126 
 Am. St. Rep. 312, 15 Ann. Cas. 148. 
 
 15 Ryan V. Foreman, 181 111. App. 262, affirmed in 262 111. 175, 104 N. E. 
 189, Ann. Cas. 1915B, 780; Beach v. Bryan, 155 Mo. App. 33, 133 S. W. 
 635; Greenman v. Gillerman's Estatef; 188 Mich. 74, 154 N. W: 82. A nat- 
 ural parent cannot recover from the adoptive , parent for the support of the 
 child while it is In his own home and custody. McNemar v. McNemar, 137 
 111. App. 504. 
 
 16 Washburn v. White, 140 Mass. 568, 5 N. E. 813. 
 
 17 Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892. 
 
 18 Odenbreit v. Utheim, 131 Minn.i56, 154 N. W. 741, U B. A. 1916D, 421. 
 loMalaney v. Cameron, 99 Kan. 70, 424, 161 Pac. 1180, affirming judgment 
 
 -on rehearing 98 Kan. 620, 159 Pac. 19, additional rehearing denied 99 
 Kan. 677, 162 Pac. 1172 ; Hprton v. T^'oU, 183 Mo. App. 677, 167 S. W. 1081 ; 
 ilasterson v. Harris, 107 Tex. 73, 174 S. W. 570.' 
 
316 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. S 
 
 The natural parents are divested of all personal rights in respect 
 to the child, and are relieved of all legal duties as its parents.^" 
 They lose, for instance, and the adoptive parent acquires, the right 
 to the child's custody and control, and to its services and earn- 
 ings ; ^^ and they are relieved from, and the adoptive parent as- 
 sumes, the duties of maintenance; education, etc. 
 
 Rights of Inheritance 
 
 The right of inheritance by and from adopted children is very 
 generally regulated by statute, and the statutes, in this as in other 
 respects, vary in the different states. The rights of inheritance by 
 reason of an adoption are determined by the law in force at the time 
 such rights accrue, and not by the law in force at the time of the 
 adoption.^^ In most, if not all, states thfe adopted child becomes the 
 heir of the adoptive parent in all respects as if he were a natural 
 child,^^ except that in some states he cannot take, by representa- 
 
 2 In re Masterson's Estate, 45 Wash. 48, 87 Pac. 104T, 122 Am. St. Rep. 
 886; Allison v. Bryan, 26 OM. 520, 109 Pac. 934, 30 L. R. A. (N. S.) 146, 13S 
 Am. St. Rep. 988; In re Macrae, 189 N. Y. 142, 81 N. E. 956, 12 Ann. Cas. 505; 
 In re Cozz^, 163 C'al. 514, 126 Pac. 161, Ann. Cas. 1914A, 214. And see 
 State r. Kelley, 32 S. D. 526, 143 N. W. 953. See, also, Schlltz v. Roenitz, 
 86 Wis. 31, 56 N. W. 194, 21 L. R. A. 483, 39 Am. St. Bep. 873. 
 
 2iLunay y. Vantyne, 40 Vt. 503. 
 
 2 2 Rosenkrans v. Rosenkrans, 163 App. Div. 730, 148 N. Y. Supp. 954, 
 affirmed 220 N. Y. 628, 115 N. E. 1050; United States Trust Co. v. Hoyt, 
 150 App. Dlv. 621, 135 N. Y. Supp. 849; In re Sorenson v. Rasmussen, 114 
 Minn. 324, 131 N. W. 325, 35 Z,. R. A. (N. S.) 216. 
 
 2 3 See Barnes v. Allen, 25 Ind. 222; Virgin v. Marwick, 97 Me. 578, 55 
 Atl. 520; Davis v. Krug, 95 Ind. 1; Humphries v. Davis, 100 Ind. 274, 50 
 Am. liep. 788; Sewall v. Roberts, 115 Mass. 262; Hoss v. Ross, 129 Mass. 243, 
 37 Am. Rep. 321 ; In re Kl.app's Estate, 197 Mich. 615, 164 N. W. 381, L. R. A. 
 1918A, 818; Adams v. Merrill, 45 Ind. App. 315, 85 N. E. 114, 87 N. B. 
 36 ; Wagner v. Varner, 50 Iowa, 582 ; Keegan v. Geraghty, 101 111. 26; Glos 
 V. Sankey, 148 111. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; 
 Com. V. Nancrede, 32 Pa. :-{89; Schafer v. Enen, 54 Pa. 304; Moran v. 
 Stewart, 122 Mo. 295, 26 S. W. 962; Riley v. Day, 88 Kan. 503, 129 Pac. 
 524, 44 L. R. A. (N. SO 296; Ultz v. Upham, 177 Mich. 351, 143 N. W. 66; 
 Horton v. Troll, 183 Mo. App. 677, 167 S. W. 1081 ; In re Cupples' Estate, 
 272 Mo. 465, 199 S. W. 556; In re Pepin's Estate, 53 Mont. 240, 163 Pac. 
 104; Nickerson v. Hoover (Ind. App.) 115 N. E. 588. If the husband only 
 adopts the child, the wife not joining In the adoption, the child cannot in- 
 herit her estate. In re Carroll's Estate, 219 Pa. 440, 68 Atl. 1038, 123 Am. 
 St. Rep. 673. On a second adoption the child loses all rights of inheritance 
 under the first adoption, and is entitled only to Inherit under the second 
 adoption. Klapp v. Pulsipher, 197 Mich. 615, 164 N. W. 381. In Missis- 
 sippi adoption does not include heirship, unless specifically conferred in the 
 decree. Beaver v. Crump, 76 Miss. 84, 23 South. 432 ; Adams v. Adams, 102 
 Miss.. 256, 59 South. 84, Ann. Cas. 1914D, 235. Leonard v. H. Weston Lumber 
 Co., 107 Miss. 729, 65 South. 459. See, also, Webb v. Mcintosh, 178 Iowa, 
 
§ 115) ADOPTION OF CHILDEEN 317 
 
 tion, from the adoptive parent's kindred, either lineal or collateral." 
 If tlie adopted child die during the lifetime of the adoptive parent, 
 leaving issue surviving, the surviving child inherits by represen- 
 tation from the adopting parent, who dies intestate." In some 
 states it is expressly provided that the adopted person can also in- 
 herit from his natural parents or kindred, though such a provision 
 would not be necessary to so entitle him.^* 
 
 In most states, either by express provision or necessary impli- 
 cation, the adoptive parent may inherit from the adopted person," 
 
 156, 159 N. W. 637. When adopted , person acquires property by descent 
 from his adopter, it is not because he is a child of the adopter, but because 
 Adoption Statute, §§ 1, 2, puts him in position of child with respect to in- 
 heritance. State V. Yturria (Tex.) 204 S. Vt. 315, L. R. A. 1918F, 1079, re- 
 versing judgment (Civ. App.) 189 S. W. 291. 
 
 2* See Keegan v. Geraghty, 101 111. 26. And see, also, Van Derlyn' v. Mack, 
 137 Mich. 146, 100 N. W. 278, 66 L. R. A. 437, 109 Am. St. Rep. 669, 4 
 Ann Cas. 879; Wallace v. Noland, 246 111. 535, 92 N. E. 956, 138 Am. St. 
 Rep. 247; Ryan v. Foreman, 181 111. App. 262, affirmed 262 111. 175, 104 N. 
 B. 189, Ann. Cas. 1915B, 780; Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 
 565, 8 L. R. A. (N. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775; In re 
 Burnett's Estate, 219 Pa. 599, 69 Atl. 74; Rhode Island Hospital Trust 
 Co. V. Humphrey, 32 R. I. 318, 79 Atl. 829. Under the adoption statute 
 (Pub. St. 1882, c. 164, §§ 6, 7 ; Gen. Laws 1909, c. 244, §§ 5, 6) no right of in- 
 heritance from a child of the adopting parent born to him in lawful wed- 
 lock is grvea to an adopted child. Batcheller-Durkee t. Batcheller, 89 K. I. 
 45, 97 Atl. 378, L. B. A. 1916E, 545. 
 
 2 5Bemero v. Goodwin, 267 Mo. 427, 184 S. W. 74; Williams v. Rollins, 
 271 Mo. 150, 195 S. W. 1009; Kroff v. Amrhein, 5 Ohio App. 37, judgment 
 affirmed 114, N. E. 267 ; Walworths' Estate, 85 Vt. 322, 82 Atl; 7, 37 L. R. A. 
 (N. S.) .849, Ann. Cas. 1914C, 1223. Where one leaves a life estate to his 
 sole heir, an adopted daughter, and the remainder to her issue, if. any, on 
 her death without issue, the remainder descends to those who claim through 
 her, and not (o the ancestor's collateral kindrecl. Franklin v. Fairbanks, 
 99 Kan. 271, 161 Pac. 617. 
 
 28 Wagner v. Varner, 50 Iowa, 532; Humphries v. Davis, 100 Ind. 274, 50 
 Am. Rep. 788 ; Clarkson v. Hatton, 143 Mo. 47, 44 S. W. 761, 39 L. R. A. 74^ 
 65 Am. St. Rep. 635 ; In re Klapp's Estate, 197 Mich. 615, 164 N. W. 381, 
 L. R. A. 1918A, 818; Head v. Leak, 61 Ind. App. 253, lil N. E. 952; Mc- 
 Kellar v. Harkins, 183 Iowa, 1030, 166 N. W. 1061. But see In re Darling's 
 Estate, 173 Cal. 221, 159 Pac. 606. Where the adoption of the minors follow- 
 ed the death of their father, it did not^affect their status as his heirs. In re 
 Pillsbury's Estate, 175 Cal. 454, 166 Pac. 11, 3 A. L. R. 1396. Under Do- 
 mestic Relations Law, § 114, relating to rights of adopted person, the right of 
 a half-sister of an intestate to share in his estate was not lost by her previous 
 legal adoption by a stranger. In re Landers' Estate, 100 Misc. Rep. 635, 166 
 N. Y. Supp. 1036. A child adopted by her grandfather cannot take in the dual 
 capacity of grandchild and adopted child, but can take only one share. Bill- 
 ings v. Head, 184 Ind. 361, 111 N. E. 177. ^ 
 
 2' See Swick v. Coleman, 218 111. 33, 75 N, E. 807, affirming Coleman v. 
 
318 LEGITIMACY, ILLBGITIMACT, AND ADOPTION (Ch. 8 
 
 though generally the right is limited to property received from 
 or through the adoptive parent."' ' 
 
 As to the right of inheritance by and from adopted persons, where 
 the statute is silent on the subject, the authorities are not very 
 clear. In Indiana, where the statute was silent on this question, 
 it was held, after a thorough consideration, arid a full review of 
 the authorities, that where an adopted child acquires property 
 by inheritance,^ not fropi his natural parents or kindred, but from 
 his adoptive mother, such property, on the death of the child, will 
 go to his adoptive father, to the exclusion of his natural parents 
 or kindred.^' The court was influenced by the consideration that 
 this was only just, in view of the fact that the property had been 
 acquired by the child from its adoptive parent, and not from its 
 natural parent, and that equity has a potent influence in the con- 
 struction of statutes. It was also considered, however, on princi- 
 ple and on authority, that this result followed necessarily from the 
 legal status of adoptive parent and child. The status of an adopt- 
 ed child, it was said, for all legal purposes, and as to property 
 inherited by it from an adoptive parent, is that of a natural child. 
 
 In the case just referred to, the court expressly limited its de- 
 cision to the facts, and it was intimated, if not virtually conceded, 
 that property inherited by a child from its natural parent would go 
 back to its natural kindred, to the exclusion of its adoptive parent; 
 and in some cases it has been expressly so held.*" 
 
 In Missouri it was held that, though the legal relation of parent 
 and child exists between adoptive parent and child, yet, as the 
 statute, vests the right of inheritance in the child only, the adoptive 
 
 Swick, 120 111. App. 381; In re Jotson's Estate, 164 Cal. 312, 128 Pac. 038, 
 43 L. E. A. (N. S.) 1062; Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 266; 
 In re Darling's Estate, 173 Cal. 221, 159 Pac. 606. See, also, MacMaster 
 V. Fobes, 226 Mass. 396,, 115 N. E. 487. But see Edwards v. Yearby, 168 N. 
 C. 663, 85 S. K 19, L. R. A. 1815E, 462. 
 
 2 8 Dunn V. Means, 48 Ind. App. 383, 95 N. E. 1015; Warner v. King, 267 
 111. 82, 107 N. E. 837 ; Lanferman v. Vanzile, 150 Ky. 751, 150 S. W. 1008, Ann. 
 Cas. 1014D, 563. Since an adopted child under Rev. Laws, c. 154, becomes 
 the child of both adopting parents, and inherits from them the same as 
 other children, on such child's dying intestate her property descends to all 
 of her next of kin by adoption, irrespective of whether it came from one 
 adopting parent or the other. MacMaster v. Fobes, 226 Mass. 396, 115 N. K 
 487. 
 
 2 Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788 (collecting and re- 
 viewing the cases). But see Hole v. Robbins, 53 Wis. 514, 10 N. W. 617. 
 
 30 Hole v. Robbins, 53 Wis. '514, 10 N. W. 617. And see dictum in Hum- 
 phries V. Davis, 110 Ind. 274, 50 Am. Rep. 788. 
 
§ 115) ADOPTION OF CHILDEEN 319 
 
 parent cannot inherit from the adopted child ; and that, even where 
 the child has acquired property from an adoptive parent under the 
 statute, the property, on the child's death intestate, goes to its 
 natural parents or kinsmen." But this decision has been very just- 
 ly criticised.'^ 
 
 In Massachusetts the doctrine that, the legal status of adoptive 
 parent and child is the same in substance as that of natural parent 
 and child was carried so far as to hold that an adopted child took 
 as a child under a residuary clause of the adoptive mother's will, 
 where the specific legacy had lapsed.'* 
 
 Agreement to Adopt — Invalid Adoption 
 
 Mere agreements to adopt a child cannot, in the absence of a stat- 
 ute so providing, give rise to the relation of parent and child, such 
 as results from a legal adoption.'* But, where such agreements 
 purport to make the child the heir of the adopting person, equity 
 will enforce the agreement to protect the rights of the child. '^ And 
 if the contract to adopt was valid in the .state where it was made it 
 wiirbe given effect in another state, though it would not have been 
 effective as an adoption in the latter state.'" So, too, a defective 
 adoption may be construed as a contract to adopt which will be en- 
 forced in equity." 
 
 Persons Standing in Loco Parentis 
 
 When a person assumes a liability to maintain, rear, and educate 
 a child, or receives a child into his family under such circumstances 
 
 81 Eelnders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802. But see Laws 
 Mo. 19ir, p. 193 (Act April 10, 1917). 
 
 32 Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788. 
 
 83 Burrage v. Briggs, 120 Mass. 103. 
 
 .34 Wall V. McEnnery's Estate, 105 Wash. 445, 178 Pac. 631 ; Malaney v. 
 Cameron, 98 Kan. 620, 159 Pac. 19, judgment affirmed on rehearifig 99 Kan. 
 70, 424, 161 Pac. 1180, additional rehearing denied 99 Kan. 677, 162 Pac. 
 1172. 
 
 soOdenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741, L. R. A. 19] 6D, 421; 
 Fiske V. Lawton, 124 Minn. 85. 144 N. W. 455; Ghehak v. Battle, 333 Iowa, 
 107, 110 N. W. 330, 8 L. E. A. (N. S.) 1130, 12 Ann. Gas. 140; Buck v. Meyer, 
 195 Mo. App. 287, 190 S. W. 997 ; Slgnaigo v. Signaigo (Mo.) 205 S. W. 23 , 
 Barney v. Hutchinson, 25 N. M. 82, 177 Pac. 890. And see Malaney \. 
 Gameron, 99 Kan. 70, 424, 161 Pac. 1180, affirming judgment on rehearing 
 98 Kan. 620, 159 Pac. 19, additional rehearing denied 99 Kan. 677, 162 
 Pac. 1172. 
 
 36 In re Herrick's Estate, 124 Minn. 85, 144 N. W. 455. 
 
 37 Prince v. Prince, 194 Ala. 455, 69 South. 90G ; Anderson v. Blakesly, 155 
 Iowa, 430, 136 N. W. 210. 
 
320 LEGITIMACY, ILLEGITIMACY, AND ADOPTION (Ch. 8 
 
 as give rise to the presumption that he has assumed such liability, 
 there being no legal adoption, such person is said to stand in loco 
 parentis to the child.'' One who assumes that relation is generally 
 entitled to the rights and subject to the duties of an actual parent.'* 
 
 What Law Governs 
 
 Since status, independ ent of any rights that may flow from th at 
 ^tatus. is depenaent on the law of the domicile of th '^ ppff^nn at the 
 .ti me the status is acquired,^" the question whether a rhrld has ac- 
 quired the status of an adopted child is determined by the law o f 
 jJie state where thp adnption took place.*^ and an adoption va lid 
 and effective in the state where made will be recogni yed as rreatinty 
 the status in every other state.*^ As to the rights of inheritanc e 
 resulting from the adoption, they are determined by th g. law nf 
 the domicile of the decedent in the rasf^ of personal property, and 
 lexrei sitae m the case of real p roperty, and not by the law oL the 
 p lace o f adoption.^" 
 
 38 In re DuU's Estate, 1 Leg. Op. (Pa.) 125; BrinkerhofiE v. Merselis E&'rs, 
 24 N. J. Law, 680; Schrimpf v. Settegast, 36 Tex. 296. Zent v. Fuchs, 60 
 Hun, 582, 14 N. Y. Supp. 806 : Von der Horst v. Von der Horst, 88 Md. 127, 
 41 Atl. 124. 
 
 3 3 Williams v. HutcMnson, 3 N. T. 312, 53 Am. Dec. 301. As to the rights 
 and duties of a natural parent, see post, pp. 321, 339. 
 
 *o Matre v. Sankey. 148 111. 536, 36 N. E. 628, 23 1.. R. A. 665, 39 Am. St. 
 Rep. 196 ; Woodward v. Woodward, 87 Tenn. 644, 11 S. W. 892. 
 
 41 Boss v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Anderson v. French, 77 
 N. H. 509, 93 Atl. 1042, L. R. A. 1916A, 660, Ann. Cas. 1916B, 89; Appeal 
 of Woodward, 81 Conn. 152. 70 Atl. 458 (holding- that an adoption once 
 legally made is not terminated by a change of domicile). 
 
 4 2 See cases cited in preceding note. 
 
 *3 Keegan v. Geraghty, 101 111. 26; Calhoun v. Bryant, 28 S. D. 266, 133 N. 
 W. 266; Van Matre v. Sankey, 148 111. 536, 36 N. E. 628, 2.S L. R. A. 665, 
 39 Am. St. Rep. 196 ; Ross. v. Ross, 129 Mass. 243, 37 Am. Rep. 321 : Ander- 
 son V. ITrencb, 77 N. H. 509, 93 Atl. 1042, L. R. A. 1916A, 660, Ann. Cas. 
 1916B, 89; Knley v. Brown, 122 Tenn. 316, 123 S. W. 359, 25 L. R. A. (N. S.) 
 1285. But see Brown v. Finley, 157 Ala. 424, 47 South. 577, 21 L. R. A. 679, 
 131 Am. St. Rep. 68, 16 Ann. Cas. 778. Apparently contrary to the above 
 cases is In re Sunderland, 60 Iowa, 732, 13 N. W. 655. But this case in- 
 volved an adoption by special act of the Legislature of Louisiana, and 
 should therefore be distinguished from the cases cited above. In Shick 
 V. Howe, 137 Iowa, 249, 114 N. W. 916, 14 L. R. A. (N. S.) 9S0, the law of 
 the place of adoption (New York) and the law of Iowa (where intestate 
 died) were the same. Boaz v. Swinney, 79 Kan. 332, 99 Pac. 621, is clearly 
 contrary to the weight of authority. 
 
§ 116) DUTIES AND LIABILITIES OF PARENTS 321 
 
 CHAPTER IX 
 
 DUTIES AND LIABILITIES OF PARENTS 
 
 116. Parent's Diity to Maintain Ohild. 
 
 117. Maintenance in Equity — ^Allowance Out of Child's Estate. 
 
 118. Contracts by Child as Parent's Agent. 
 
 119. Parent's Duty to Protect Child. 
 
 120. Parent's Du^ to Educate Child. 
 
 121. Parent's laability for Child's Torts. 
 
 122. Parent's Liability for Child's Crimes. 
 
 PARENT'S DUTY TO MAINTAIN CHILD 
 
 116. Whether there is a legal duty on the part of the parent, at 
 common law, to maintain his minor child, so as to render 
 him liable for necessaries furnished the child, is a question 
 upon which the authorities are conflicting. 
 
 (a) In England, and in some states, it is held that there is only 'a 
 
 moral obligation, in the absence of a statute, and that there 
 is no liability for necessaries unless there is a promise in 
 fact to pay for them, express or implied. But even in 
 these jurisdictions it is usually provided by statute that 
 the municipal authorities may compel the parent, if he is 
 able to to so, to maintain his child. In most states it is a 
 penal offense if the parent neglect to support his minor 
 child. 
 
 (b) In other states it is held that the obligation is a legal one, 
 
 and that there is a liability for necessaries, in case of non- 
 support by the parent, in the absence of any promise in 
 fact, or else that, if the obligation is merely a moral one, it 
 is nevertheless sufficient to create such a liability. 
 
 Morally, of course, a parent is bound to support his children, if 
 they are unable to support themselves. In most jurisdictions this 
 moral obligation is expressly made a legal obligation by statute. It 
 is provided by the statute of 43 Eliz. c. 2, that the father and moth- 
 er, grandfather and grandmother, of poor, old, blind, lame, and im- 
 potent persons, shall maintain them, if of sufficient ability, but that 
 no person is bound to provide for his children unless they are im- 
 potent, or unable to work, through infancy, disease, or accident, and 
 then.that he is only obliged to furnish them with necessaries. Stat- 
 TIFF.P.& D.Rel.(3d Ed.)— 21 
 
322 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 utes more or less similar to this, and having the same object, have 
 been enacted in many of our states.^ Even where this is not the 
 case, it would seem that the English statute is to be regarded as in 
 force, for it is old enough to have become a part of our common 
 law, and is applicable to our conditions. In most states, by statute, 
 it is made a penal offense 'for a parent to abandon his minor chil- 
 dren, or neglect to support them.^ Irresfjective of the statutes 
 referred to, which are in the nature of poor laws, in many states 
 statutes have been enacted imposing on the parents of infant chil- 
 dren the legal duty of furnishing them with adequate support and 
 education.' • 
 
 Whether or not, at common law and independently of statutory 
 provision, a parent is under a legal obligation to support and main- 
 tain his children, or whether it is merely a natural duty, binding in 
 morals only, is a question upon which the authorities are conflict- 
 ing. The later English cases hold that there is only a moral obliga- 
 tion. ■ "Except under the operation of the poor law," said Cockburn, 
 J., "there is no legal obligation on the part of the father to maintain 
 his child, unless, indeed, the neglect to do so should bring the 
 case within the criminal law. Civilly there is no such obligation." * 
 It is accordingly held in England that a parent, even where he neg- 
 lects to support his child, is not liable for necessaries furnished to 
 it, in the absence of an express promise to pay for them, or conduct 
 from which a promise may be implied as a matter of fact. In other 
 words, it is held that the law does not, as in the case of husband 
 and wife, create any liability on the part of a parent for necessaries 
 furnished his child, in the absence of contract in fact, express or im- 
 plied, on his part. "It is a clear principle of law," said Parke, B., 
 "that a father is not under, any legal obligation to pay his son's 
 debts, except, indeed, by proceeding under St. 43 EHz. c. 2, by which 
 he may, under certain circumstances, be compelled to support his 
 children according to his ability ; but the mere moral obligation to 
 do so cannot impose upon him any legal liability." " 
 
 1 See the statutes of the various states. 
 
 2 See post, p. 328. * 
 
 a See, for example, Civ. Code Cal. § 196, as distinguished from section 206. 
 See, also, Rev. Laws Okl. 1910, § 4367 ; Comp. Laws, N. D. 1913, § 4423. And 
 see the statutes of various states. 
 
 ^Eazeley v. Forder, L. E. 3 Q. B. 659. 
 
 BMortimore v. Wright, 6 Mees. & W. 482. And see Shelton v. Springett, 
 11 C. B. 452, where it is said that "a father is not liable on a contract made 
 
§ 116) parent's duty to maintain child 323 
 
 In this country the rule is the same in many states. In a number 
 of states it has been expressly held, in accordance with the English 
 cases referred to, that a parent is under no legal obligation to sup- 
 port his children ; * and that he is not liable, therefore, for neces- 
 saries furnished to them, in the absence of any express contract to 
 pay for them, or a contract implied in fact/ 
 
 The result of these decisions is clearly opposed to every natural 
 sense of justice. If they are sound, the result is that a father can 
 desert a child which, because of its youth or of sickness or other 
 cause, is absolutely helpless, and a stranger who, to save its life, 
 feeds and clothes it, and procures necessary medical attendance,/ 
 cantiot recover his expenditures from the father. On the other 
 hand, if a husband deserts his wife, though she may be fully able 
 to work and to earn a living, the law allows her to bind her hus- 
 band for necessaries furnished her, even against his express com- 
 mand not to furnish them.* Again, it is well settled, both in Eng- 
 land and in this country, that a parent who, being able, neglects to 
 provide the necessaries of life, including necessary medical attend- 
 ance, for a child who is unable to provide for himself, and thereby 
 causes the child's death, is guilty of manslaughter at least; and, 
 if the neglect is willful and malicious, he is guilty of murder.' It is 
 equally well settled, as a general principle of law, that to render a 
 person guilty of manslaughter, because of a neglect of duty causing 
 another's death, the duty must be a legal, as distinguished from a 
 merely moral, duty.^" It is inconsistent, therefore, to hold a parent 
 
 by Ws minor child, even for necessaries furnished, unless an actual authority 
 be proved or the circumstances be sufficient to imply one:" And it is also 
 said that the mere obligation to provide for the child's maintenance affords 
 no legal inference for a promise. It is not altogether clear that these deci- 
 sions are sustainable by authority. See Rawlyns v. Vandyke, 3 Esp. 252; 
 Stone V. Oarr, Id. 1. 
 
 6 Kelley v. Davis, 49 N. H. 187, 6 Am. iep. 499 (but see Hillsborough v. 
 Deering, 4 N. H. 86 ; Pidgin v. Cram, 8 N. H. 352) ; Gordon v. Potter, 17 Vt. 
 348; Freeman v. Robinson, 38 N. J. Law, 383, 20 Am. Kep. 399; Raymond 
 v. Loyl, 10 Barb. (N. T.) 483; Chilcott v. Trimble, 13 Barb. (N. Y.) 502; 
 Hunt V. Thompson, 3 Scam. (111.) 179, 36 Am. Dec. 538 ; McMillen v. Lee, 78 
 111. 443 (but see cases cited in note 11, infra); Hollings worth v. Sweden- 
 borg, 49 Ind. 378, 19 Am. Rep. 687; Holt v. Baldwin, 46 Mo. 265, 2 Am. Rep. 
 515; White v. Mann, 110 Ind. 74, 10 N. E. 629. And see Sassaman v. Wells, 
 178 Mich. 167, 144 N. W. 478., 
 
 7 See the cases cited above. 
 
 8 Ante, p. 175. 
 
 9 Clark, Cr. Law, 177, and cases there cited ; fteg. v. Morby, Clark, Cr, 
 Cas. '75. 
 
 10 Clark, Cr. Law, 177, 178, and cases there cited. 
 
I 
 324 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 criminally liable for neglect to support his child, and at the same 
 time to say that he is under no legal obligation to support it. The 
 law says that a parent is criminally liable for neglect causing his 
 child's death ; and it says that a stranger who sees a child starving 
 on the common, or attacked by a dog, or drowning, is not criminally 
 liable for not rescuing it, because the stranger is not legally, but 
 only morally, bound to interfere. And yet the law also says that 
 a parent is not under a legal, but only under a moral, obligation to 
 feed his starving child. 
 
 These inconsistencies in the decisions show that some of them 
 are wrong. The truth is that, in reason and on principle, a parent 
 is legally, as well as morally, bound to support his children, if they 
 are unable to care for themselves, and if he is able to do so ; and if 
 he neglects to do so, and another performs the duty for him, even 
 against his wish or directions, he may recover therefor from the 
 father, without regard to any idea of a contract in fact. There are 
 a number of cases, and much dictum, in favor of this view.^^ Some 
 of the cases 'cited in support of the above proposition seem to rec- 
 ognize, what is held in England, that there is only a moral obliga- 
 tion on the part of the parent to furnish support, but that this moral 
 obligation is sufficient to impose legal liability for necessaries upon 
 the parent; but it is not proper to put the decision on this ground, 
 for the general rule is that a moral obligation will not even sup- 
 
 112 Kent, Comm. 190; Reeve, Dom. Eel. 283; Van Valkinburgli v. Wat- 
 son, ]3 .Tohns, (N. Y.) 480, 7 Am. Dec. 395; Edwards v. iDa vis, 16 Johns. 
 (N. Y.) 285 ; In re Ryder, 11 Paige (N. Y.) 188, 42 Am. Dec. 109 ; Furman v. 
 Van Sise. 56 N. Y. 435, 15 Am. Dec. 441 ; Manning v. Wells, 8 Misc. Rep. 64C, 
 29 N. Y. Snpp. 1044; Guthrie County v. Conrad, 133 Iowa, 171, IIQ X. W. 
 454;' Plaster v. Plaster, 47 111. 290; Allen v. Jacobi, 14 111. App. 277; Miller 
 V. Davis, 45 111., App. 447 (but see Hmnt v. Thompson, 3 Scam. [111.] 179, 36 
 Am. De<'.. 538 ; McMillen v. Lee, 78 111. 443) ; Owen v. "White, 5 Port. (Ala.) 
 435, 30 Am. Dec. 572; Pretzinger v.. Pretzinger, 45 Ohio St. 452, 15 N. E. 
 471, 4 Am. St. Rep. 542 ; Luflcln v. Harvey, 131 Minn. 238, 154 N. W. 1097, 
 L. R. A. 1916B, 1111 ; Snell v. Ham (Tex. Civ. App.) 151 S. W. 1077 ; Keaton 
 V. Davis, 18 Ga. 457; Reynolds v. Sweetser, 15 Gray (Mass.) 78; Dennis y. 
 Clark, 2 Cush. (Mass.) 347, 352, 48 Am. Dec. 671; Weeks v. Merrow, 40 Me. 
 /LSI ; Hillsborough v. Deering, 4 N. H. 86 ; Pidgin v. Cram, 8 N. H. 352 (but 
 / see Kelley v. Davis, 49 N. H. 187, 6 Am. Rep. 499) ; Fitler v. Fltler, 33 Pa. 
 50; Holtzman v. Castleman, 2 MacArthur (D. O.) 555; Maguinay v. Saudek, 
 5 Sneed (Tenn.) 147; PORTER v. POWELL, 79 Iowa, 151, 44 N. W. 295, 7 L. 
 R. A. 176, 18 Am. St. Rep. 353, Caoley Cas. Persons and Domestic Relations, 
 168; Stanton v. Willson, 3 Day (Conn.) 37, 3 Am. Dec. 255 (approved in Finch 
 V. Finch, 22 Conn. 421) ; EVans v. Pearce, 15 Grat. (Va.) 613, 78 Am. Dec. 
 635. See, also. Conn v. Conn, 57 Ind. 323; Courtright v. Courtright, 40 
 Mich. 633; Buckminster v. Buckminster, 38 Vt. 252, 88 Am. Dec. 652; 
 
136) parent's duty to maintain child 325 
 
 port an express promise. To hold the parent liable, the, courts, in 
 effect, hold that the obligation is a legal one. This obligation to 
 support is not based on the duty of the child to serve, but rather 
 on the inability of the child to care for itself. Otherwise, those who 
 are unable to render service because of extreme infancy, sickness, 
 or accident — those who most of all, .need support — would not be 
 entitled to it. The duty is not merely to the child, but also to the 
 public.^^ 
 
 The obligation thus imposed on the parent is not, however, en- 
 forceable at the suit of the child, even in equity, in the absence of a 
 statute giving the right. ^^ But it has been held in California that 
 the duty imposed by the provisions of the statute relating to the 
 support of poor persons ^* may be enforced in equity at the suit of 
 the child." 
 
 While the father is primarily liable for the support of his minor 
 children,^' the mother will generally become lia;ble on the death of 
 the father.^'^ She will not be held liable if the child has an estate 
 or income of its own.^* The widow is not liable for the support 
 of her stepchildren,^" and where a widowed mother marries again 
 the stepfather is under no obligation to support her children by her 
 first husband.^" But if he voluntarily assumes the obligation of 
 
 Wright V. Leupp. 70 N. .T. Eq. 130, 62 Atl. 464; Cousins v. Boyer, 114 
 App. Div. 787, 100 N. Y. Supp. 290; Holt v. Holt, 42 Ark. 495. 
 
 12 POKTBB V. POWELL, 79 Iowa, 151, 44 N. W. 295, 7 L. K. A. 176, 18 Am. 
 St. Rep. 353, Cooley Cas. Persons and Domestic Relations, 168. ( 
 
 13 Huke V. Huke, 44 Mo. App. 308. 
 1* Civil Code, § 206. 
 
 isPaxtOD V. Paxton, 150 Cal. 667, 89 Pac. 1083, 
 
 16 PORTER V. POWELL, 79 Iowa, .151, 44 N. W. 295, 7 L. R. A. 176, 18 Am. 
 St. Rep. 353, Cooley Cas. Persons and Domestic Relations, 168; Alvey v. 
 Hartwig, 106 Md. 254, 67 Atl. 132, 11 L. R. A. (N. S.) 678, 14 Ann. Cas. 
 250 ; Gilley v. GUley, 79 Me. 292, 9 Atl.. 623, 1 Am. St. Kep. 307 ; Leibold v.. 
 Leibold, 158 Ind. 60, 62 K. E. 627. In some states by statute the mother 
 must assist in the support of children if the father is unable to furnish 
 adequate support. See Comp. Laws N. D. 1913, § 4423. 
 
 17 Girls' Industrial Home v. Fritehey, 10 Mo. App. 344 ; Missouri Pac. Ry. 
 Co. V. Palmer, 55 Neb. 559, 79 N. W. 169; Finch v. Finch, 22 Conn. 411; 
 Furman y. Van Sise, 56 N. Y. 435, 15 Am. Rep. 441; Gray v. Durland, 50 
 Barb. (N. Y.) 100, and dissenting opinion, page 211. 
 
 isEnglehardt v. Yung, 76 Ala. 534; Mowbry v. Mowbry, 64 111. 383; In 
 re Lyons' Estate (Sur.) 137 N. Y. Supp. 171 ; Whipple v. Dow, 2 Mass. 415 ; 
 Dawes v. Howard, 4 Mass. 97 (but see Inhabitants of Dedham v. Inhabitants 
 of Natick, 16 Mass. 135) ; In re Besondy, 32 Minn. 385, 20 N. W. 366, 50 Am. 
 Rep. 579. 
 
 19 Popejoy V. Hydraulic Press Brick Co., 193 Mo. App. 612, 186 S. W. 1133. 
 
 2orubb V. Harrison, 4 Term R, 118; Com. v. Hamilton, 6 Mass. 273; In 
 
326 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 support, by receiving the children into his family and assuming to 
 stand in loco parentis to the children, he is liable.^^ And generally 
 a person who assumes to stand in loco parentis- to a child is subject 
 to the legal responsibilities flowing from the parental relation, and 
 is therefore liable for the support of the child.^^ 
 
 The obligation on the part of the parent to maintain the child 
 continues until the, child is in a condition to provide for its own 
 maintenance, and no further; and in no case does it extend further 
 than to a necessary support." The legal obligation ceases, except 
 under some of the statutes, as soon as the child reaches the age of 
 majority, however helpless he may be, and however wealthy the 
 father may be.^* 
 
 Effect of Separation or Divorce 
 
 Whether the liability of the father to support his children per- 
 sists if the parents 'are separated by divorce or otherwise depends 
 on the circumstances of the particular case. If the father deserts 
 his family, the wife can recover from him for the support of the 
 children.^'' On the other hand, if the mother leaves her husband 
 without cause, taking the children with her, the father is not lia- 
 ble.^" The duty of the father to support the children is not relieved 
 merely because the parents have separated by agreement and the 
 mother has the custody of the children.^' Though an agreement 
 
 re Besondy, 32 Minn. 385, 20 N. W. 366, 50 Am. Rep. 579; Bond v. Lock- 
 wood, 33 111. 212 ; McMahill v. McMahill, 113 111. 461. But see Ela v. Brand. 
 63 N. HI. 14. 
 
 21 State ex rel. Deckard v. Macom (Mo. App.) 186 S. W. 1157; Coakley v. 
 CoaWey, 216 Mass. 71, 102 N. E. 930, Ann. Cas. 1915A, 867; White v. Mc- 
 Dowell, 74 Wash. 44, 132 Pac. 734. See, also, Huber v. Roth, 91 Kan. 134, 
 'l36 Pac. 794 ; Daniel v. Tolon, 53 Okl. 666, 157 Pac. 756, 4 A. L. R. 704. 
 
 2 2 In re Harris, 16 Ariz. 1, 140 Pac. 825; Monk v. Hurlburt, 151 V\'is. 41, 
 ,138 N. W. 59, 42 L. E. A. (N. S.) 535; Howard v. Randolph. 134 Ga. 691. 
 68 S. E. 586, 29 L. R. A. (N. S.) 294, 20 Ann. Cas. 392. 
 
 23 2 Kent, Comm. 190. When the child is emancipated, ' the father is not 
 liable. Holland v. Hartley, 171 N. C. 376, 88 S. E. 507. 
 
 2*2 Kent, Comm. 191 ; Skidmore v. Skidmore, 160 App. Div. 594, 145 N. Y. 
 Supp. 939 ; Studebaker Bros. Mfg. Co. v. De Moss, 62 Ind. App. 635, 118 N. E. 
 417. 
 
 2r. De Brauwere v. De Brauwere, 203 N. Y. 460, 96 N. E. 722, 38 L. R. A. (N. 
 S.) 508. 
 
 2 8 Hyde v. Leisenring, 107 Mich. 490, 65 N. W. 536. But see Gilbert v. 
 Gilbert, 149 Ky. 638, 149 S. W. 964; White v. White, 169 Mo. App. 40, 154 S. 
 W. 872, where the parties were divorced for wife's fault. 
 
 27 McGarvey's Guardian v. McGarvey's Adm'r, 163 Ky. 242, 173 S. W. 765; 
 Ahrens v. Ahrens (OIjI.) 169 Pac. 486 ; Edelson v. Edelson, 179 Ky. 300, 200 
 
§ 116) parent's duty to maintain child 327 
 
 as to the custody and maintenance of children will be enforced as 
 between the husband and the wife, it cannot afiEect the paramount 
 liability of both imposed by statute.^* 
 
 Though in several well-considered cases it has been held that , 
 when the care and custody of the children have been awarded to 
 the mother by the decree of divorce, this carries with it the obli- 
 gation to support,^* the better rule, according to the weight of au- 
 thority, is that the liability of either parent to support the childre n 
 is not affected by the decree of divorce.^' arid the liability of the 
 parent primarily li able for the support o j the rhild rpn rnnt innes, 
 regardless of^the divorce.^^ And even where the custody of the 
 cITITdren has been given to the mother, her obligation to support the 
 children is not exclusive of that of the father, and he remains liable 
 to her for their maintenance.^" The duty to support his children, 
 
 S. W. 625. 2 A. L. E. 689. But see O'Brien v. Galley-Stockton Shoe Co, (Colo.) 
 173 Pae. 544. 
 
 28 Brlce V. Brice, 50 Mont. 388, 147 Pac. 164 (construing Bev. Codes, §5 
 3741, 3742). 
 
 2 9Burritt v. Burritt, 29 Barb. (N. T.) 124; Brow v. Brlghtman, 136 Mass. 
 187; Brown v. Smith, 19 E. I. 819, 33 Atl. 466, 30 L. E. A. 680; Fincli v. 
 Flndi, 22 Conn. 411 ; Stone v. Duffy, 219 Mass. 178, 106 N. E. 595 ; and see 
 Bondies v. Bondles, 40 Okl. 164, 136 Pac. 1089. 
 
 30 In re Application for Support of Minor Children, 164 Iowa, 208, 145 N. 
 W. 467; Gibbons v. Gibbons, 75 Or. 500, 147 Pac. 530; Hector v. Hector, 51 
 Wash. 434, 99 Pac. 13. , 
 
 31 Gilley v. Gilley, 79 Me. 292, 9 Atl. 623, 1 Am. St. Eep. 307; Eowell v. 
 Eowell, 97 Kan. 16, 154 Pac. 243, Ann. Oas. 19180, 936 ; Courtright v. Court- 
 right, 40 Jlich. 633: Robinson v. Eobinson, 268 Mo. 708, 186 S. "W. 1032, 
 modifying 168 Mo. App. 639, 154 S. W. 162 ; Hector v. Hector, 51 Wash. 434, 
 'J9 Pac. 13; Sehoennauer v. Schoennauer, 77 Wash. 182, 137 Pac. 325; 
 Gibbons v. Gibbons, 75 Or. 500, 147 Pac. 530; Thomas v. Thomas, 41 Wis. 
 229; Conn v. Copn, 57 Ind. 323. 
 
 32Alvey V. Hartn-ig, 106 Md. 254, 67 Atl. 132, 11 L. E. A. (N. S.) 678, 
 14 Ann. Cas. 250 ; Spencer v. Spencer, 97 Minn. 56, 105 N. W. 488, 2 L. E, A. 
 (N. S.) 851, 114 Am. St. Eep. 695, 7 Ann. Cas. 901; Evans v. Evans, 125 
 Tenn. 112, 140 S. W. 745, Ann. Cas. 19180, 294; Sanders v. Sanders, 167 N. 
 C. 819, 83 N. E. 490; Stanton v. Willson, 3 Day (Conn.) 37, 3 Am. Dec. 255 
 (but see Finch v. Finch, 22 Conn. 411); Thomas v. Thomas, 41 Wis. 229; 
 Conn V. Conn, 57 Ind. 328; Spade v. State, 44 Ind. App. 529, 89 N. E. 604; 
 White V. White (Mo. App.) ISO S. W. 1004; Graham v. Graham, 38 Colo. 
 458, 88 Pac. 852, 8 L. E. A. (N. S.) 1270, 12 Ann. Cas. 137 ; Eogera v. Eogers, 
 93 Kan. 114, 143 Pac. 410, L. E. A. 1917A, 1337 ; La Eue v. Kempf, 186 Mo. 
 App. 57, 121 S. W. 588; Kinney v. Kinney, 150 Iowa, 225, 129 N. Wi. 826; 
 White v. White, 154 App. Div. 250, 138 N. Y. Supp. 1082 ; Hall v. Hall, 141 
 Ga. 361, 80 S. E. 992; Eiggs v. Eiggs, 91 Kan. 593, 138 Pae. 628, Ann. Oas. 
 1915D, 809; Wills v. Wills, 168 Ky. 35, 181 S. W. 619; Hector v. Hector, 
 51 Wash. 434, 99 Pac. 13. In Eamsey v. Ramsey, 121 Ind. 215, 23 N. E. 69, 
 
328 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 said the Ohio court, "is not to be evaded by the husband so con- 
 ducting himself as to render it necessary to dissolve the bonds of 
 matrimony, and give to the mother the custody and care of the in- 
 fant ofifspring. It is not the policy "f the law to deprive children 
 of their rights on account nf the dissensions of their parenta —to 
 w hich they a re no t parties, or to enable the father to convert _his 
 own misconduct mto a shjelH against parental liabili ty. The di- 
 vorce may deprive him of the custody and the services of his chil- 
 dren, and of the rights of guardianship, against his will ; but if, by 
 the judgment of the court, and upon competent and sufficient evi- 
 dence, he is found to be an unfit person to exercise parental control, 
 while the mother is in all respects the proper person to be clothed 
 with such authority, he cannot justly complain. The alimony al- 
 lowed by the court below is not to be construed into an- allowance 
 for the support also of the child. 'Alimony,' in its proper signifi- 
 cance, is not maintenance to the children, but to the wife; and the 
 fact that there has been a judgment of divorce, with alimony and 
 custody of minor children to the wife, will not of itself opera,te as 
 a bar to a subsequent claim against the husband for the children's 
 maintenance." °° It has also been held that even the remarriage of 
 the mother after the divorce does not release the father from his ob- 
 ligation.^* 
 
 Neglect to Support as an Offense 
 
 In many states, by statute, it is made a penal ofifense for a parent 
 to abandon his minor children, or neglect to support them.'^ Such 
 
 6 L. R. A. 682, it was held in a poorly reasoned opinion tliat where a child 
 was bom after the divorce the father was not liable for its support; the 
 child being in the custody of the mother. 
 
 S3 Pretzinger v. Pretzlnger, 45 Ohio St. 452, 15 N. E. 471, 4 Am. St. Rep. 
 542. • And see Holt v. Holt, 42 Ark. 495. 
 
 3 4 Maxwell v. Boyd, 123 Mo. App. 334, 100 S. W. 540; Johnson v. Latty 
 (D. O.) 210 Fed. 061; White v. McBowell, 74 Wash. 44, 132 Pac. 734. 
 
 3 5 State V. Beers, 77 Conn. 714, 58 Atl. 745; Baldwin v. State. 118 Ga. 328, 
 45 S. E. 399 ; Mays v. State, 123 Ga. 507, 51 S. E. 503 ; Brown v. State, 122 
 Ga. 568, 50 S. E. 378 ; State v. Sanner, SI Ohio St. 393, 90 N. E. 1007, 26 L. R. 
 A. (N. S.) 1093 ; State v. Gipson, 92 Wash. 646, 159 Pac. 792 ; Martin v. Peo- 
 ple. 60 Colo. 575, 155 Pac. 318; Moore v. State, 1 Ga. App. 502, 57 S. 
 E. 1016; State v. Sparegrove, 134 Iowa, 599, 112 N. W. 83; State v. 
 Block (Mo. App.) 82 S. W. 1103 ; State v. Peabody, 25 R. I. 544, 56 Atl. 
 1028. And see People v. Chamberlain (Sup.) 106 N. Y.- Supp. 149, hold- 
 ing that since, under Code Or. Proc. § 839, the mother of a bastard child 
 is liable for ita support if able to support it, she may be prosecuted for 
 abandonment if she wrongfully neglects to do so. Under the New York stat- 
 ute (Penal Law [Consol. Laws, c. 40] § 480), declaring it a felony for a 
 
§ 117) MAINTENANCE OUT OF CHILD'S ESTATE 329 
 
 Statutes are a proper exercise of the police power of the state."" 
 Being highly penal in their nature, the statutes should be strictly 
 construed.'^ So it has been held that to render the parent liable the 
 child must be actually in need and he is not liable if the child is re- 
 ceiving nece.ssary food, etc.'' Moreover, the parent is liable only 
 when he withholds necessaries which he is able to supply,'" and a 
 failure to furnish support will be excused if the parent is unable to 
 furnish it and his inability is not due to his extravagance or mis- 
 conduct.*" Abandonment as a criminal offense under these statutes 
 contains two essential ingredients, separation from child and neg- 
 lect to provide for its needs. Mere absence from the child is not 
 sufficient.*^ 
 
 MAINTENANCE IN EQUITY^ALLOWANCE OUT OF 
 CHILD'S ESTATE 
 
 117. When a parent is unable to support his child, and the child 
 has property, equity will make allowances therefrom for 
 his future or past maintenance. An allowance will not be 
 granted if the parent is able to support his child, except 
 where the child's fortune exceeds the parent's, when it 
 may be maintained according to its fortune. 
 
 Where a father has not sufficient means to support his child, and 
 the child has property of its own, it ma^ be not only maintained, 
 
 parent to abandon his child, the father of an illegitimate, who never had cus- 
 tody of the child, is not liable. People ^v. Fitzgerald, 167 App. Div. 85, 152 
 N. Y. Supp. 641. Where one married the mother of an illegitimate child, 
 his failure to support the child, though he had promised to do so, does not 
 render him liable under the statute, unless he was the father of the child. 
 People V. Connell, 151 App. Div. 943, 136 N. Y. Supp. 912. One who fails 
 to comply with a divorce decree requiring him to support his child is liable 
 under the statute for neglect to provide. People v. Schlott, 162 Cal. 347, 122 
 Pac. 846. 
 
 3 6 Ex parte Mitchell, 19 Cal. App. 567, 126 Pac. 856. 
 
 3 7 Goetting v. Normoyle, 191 N. Y. 368, 84 N. E. 287, affirming 119 App. Div. 
 148, 103 N. Y. Supp. 8S1. 
 
 3 8 State V. Thornton, 232 Mo. 298, 134 S. "Wl. 519, 32 L. B. A. (N. S.) 841. 
 But see State v. Langford, 90 Or. 251, 176 Pac. 197, holding that proof of 
 entire failure to support is not essential and that it is sufficient to show 
 neglect to furnish adequate support. 
 
 3 9Rabom v. State, 71 Fla. 387, 72 South. 463. Failure to supply "neces- 
 sary food," etc., construed. State v. Shouse, 268 Mo. 199, 186 S. W. 1064. 
 
 ^0 People V. Forester, 29 Cal. App. 460, 155 Pac. 1022. 
 
 41 Phelps V. State, 10 Ga. App. 41, 72 S. E. 524. 
 
330 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 but educated, from the income of such property; and the court in 
 the exercise of its equity powers Vill ordei; such allowances as may 
 be necessary.*^ In an urgent case the court may use the principal 
 of a fund or other property belonging to a child to maintain and edu- 
 cate him.*' As a general rule, however, if the father ig amply able 
 to support and educate his child, no allowance will be made out of 
 the child's property,** unless the child's fortune is in excess of that 
 of the parent.*^ It is only in exceptional cases that he is entitled to 
 resort to the child's estate.*" 
 
 It is obviously to the best interests of the child that he be main- 
 tained and educated in such a manner as to fit it to fill the position 
 in life to which its future will entitle it. And it has therefore been 
 held that, when the child's fortune warrants a scale of expenditure 
 beyond what the parent's fortune will permit, a court of equity will 
 make allowances therefrom, in accorda!nce with the fortune, for his 
 maintenance and education.*^ "What allowance, if any, shall be 
 made to a father out of his children's property, for their mainte- 
 nance, is a broad question of equity. The circumstances of each 
 case, including the respective estates of father and child, are con- 
 sidered, and the decision is a just and reasonable conclusion of fact, 
 with due regard for the general rule of parental duty." *' 
 
 42 2 Kent, Comm. 191; 3 Pom. Eq. Jur. § 1309, note 4; Fuller v. Fuller, 
 23 Fla. 236, 2 South. 426 ; Commonwealtli v. Lee, 120 Ky. 433, 86 S. W. 990, 
 judgment moflifled on rehearing 120 Ky. 433, 89 S. W. 731; Beardsley v. 
 Hotchkiss, 96 N. Y. 201, 219; Newport v. Cook, 2 Ashm. (Pa.) 332; Cooley 
 V. Stringfellow, 164 Ala. 460, 51 South. 321 ; ' Williams v. Williams, 202 Ala. 
 539, 81 South. 41; Evans v. Pearce, 15 Grat. (Va.) 513, 78 Am. Dec. 635; 
 Funk's Guardian v. Funk, 130 Ky. 354, 113 S. W. 419; First Nat Bank v. 
 Greene (Ky.) 114 S. W. 322 ; Gaston v. Thompson, 129 Ga. 754, 59 S. E. 799 ; 
 Peters V. Scoble, 28 Ohio Gir. Ct. R. 541, affirmed 76 Ohio St. 564, 81 N. B. 1193. 
 
 *s Newport v. Cook, 2 Ashm. (Pa.) 332. 
 
 4* United States Fidelity & Guaranty Co. v. Hall (Tex. Civ. App.) 173 S. 
 W. 892. 
 
 * 6 Butler V. Butler, 3 Atk. 58; Darley v. Darley, Id. 399; Wellesley v. 
 Duke of Beaufort, 2 Euss. 3, 28; Cruger v. Heyward, 2 Desaus. (S. O.) 94 
 In re Kane, 2 Barb. Ch. (N. Y.) 375 ; Chapline v. Moore, 7 T. B. Mon. (Ky.) 150 
 Tanner v. Skinner, 11 Bush (Ky.) 120; In re Harland, 5 Rawle (Pa.) 323 
 Ela v. Brand, 63 N. H. 14; Hamilton's Adm'r v. Einey, 140 Ky. 476, 131 S. 
 W. 287; In re JefCrey's Estate (Sur.) 137 N. Y. Supp. 168; Buckley's Adm'r 
 V. Howard, 35 Tex. 566; Kinsey v. State, 98 Ind. 351; Hines( v. MuUins, 
 25 Ga. 696; Burke v. Turner, 85 N. C. 500. 
 
 48 In re Harris, 16 Ariz. 1, 140 Pae. 825, Ann. Cas. 1916A, 1175. 
 
 47 2 Kent, Comm. 191; Jervolse v. Silk, Coop, t Eld. 52; Roach v. Garvan, 
 
 48 Ela V. Brand, 63 N. H. 14. ' 
 
§ 118) CONTRACTS BY CHILD AS PARENT'S AGENT 331 
 
 An allowance may also be made for past maintenance and educa- 
 tion, when the extent of the respective estates of the parent and 
 child, and the particulars of the expenditures, render an allowance 
 equitable and just.*' The mother is shown special favor in allow- 
 ances for past maintenance and expenditures for education, and 
 the courts will grant them in her case without so strict a showing 
 as might be required of the father."" 
 
 CONTRACTS BY CHILD AS PARENT'S AGENT 
 
 118. A child, if expressly or impliedly authorized, may act as his 
 parent's agent, and bind him by a purchase of goods, or by 
 any other contract. If the parent holds the child out as 
 having authority, he constitutes him his agent by estoppel. 
 
 If a child is . authorized, he may act as agent for his parent, and 
 may bind him to pay for necessaries purchased,"^ or by any other 
 contract; and if the parent authorizes the child to purchase goods 
 on his credit he is liable, though the seller did not know of the au- 
 thorization, and though the goods purchased were necessaries or 
 not.°^ This depends, not upon any principle peculiar to the rela- 
 tion of parent and child, but on principles of the law of agency. 
 The relation, however, will enable the court to infer authority from 
 slight evidence,"' and if from the circunistances surrounding the 
 transaction the seller of goods is justified in assuming that author- 
 
 I'Ves. Sr. 157; In re Burke, 4 Sandf. Oh. (N. Y.) 617; Trimble v. Dodd, 2 
 Tenn. Ch. 500; Ela v. Brand, 63 N. H. 14; Evans v. Pearce, 15 Grat. (Va.) 
 513, 78 Am. Dec. 635. But see McKnight's Ex'rs v. Walsh, 23 N. J. Eq. 139. 
 
 49 Brown v. Smith, 10 Ch. Div. 377; In re Kane, 2 Barb. Ch. (N. T.) 375; 
 Smith V. Geortner, 40 How. Prac. (N. Y.) 185; Beardsley v. Hotchkissi 96 
 N. Y. 201; Otte v. Becton, 55 Mo. 99; Myers v. Myers, 2 McCord, Eq. (S. 
 C.) 214, 16 Am. Dec. 648; Trimble v. Dodd, 2 Tenn. Ch. 500; Ailing v. Ailing, 
 52 N. J. Eq. 92, 27 Atl. 655. 
 
 50 In re Besondy, 32 Minn. 385, 20 N. W. 366, 50 Am. Rep. 579; Stewart 
 V. Lewis, 16 Ala. 734 ; Englehardt v. Tung, 76 Ala. 534 ; Mowbry v. Mowbry, 
 64 111. 383 ; Gladding v. EoUett, 2 Dem. Sur. (N. Y.) 58 ; Whipple v. Dow, 2 
 Mass. 415 ; Pyatt v. Pyatt, 46 N. J. Eq. 285, 18 Atl. 1048 ; Ailing v. Ailing, 
 52 N. J. Eq. 92, 27 Atl. 655. 
 
 BiFinn v. Adams, 138 Mich. 258, 101 N. W. 533, 4 Ann. Cas. 1186. 
 
 »2 Anderson v. Lunker, 180 Iowa, 167, 162 N. W. 7. 
 
 OS Freeman v. Boblnson; 38 N. J. Law, 383, 20 Am. Rep. 399; Jordan v. 
 Wright, 45 Ark. 237. See, as to suflSciency of evidence, Cousins v. Boyer, 
 114 App. Div. 787, 100 N. Y. Supp. 290. 
 
332 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 ity was given, the parent may be held liable."* The authority of the 
 child will be implied when the parent, with knowledge and without 
 objection, allows the child to make purchases on credit," ° and es- 
 pecially will the authority be implied if the parent has been in the 
 habit of paying the cTiild's bills without objection."" "Where the 
 father permits his minor child to purchase goods on his account, 
 whether for himself or for the father, and he pays for them without 
 objection, it is a reasonable presumption that the minor had author- 
 ity, and was the agent of the father, having full power to make such 
 purchases. The proof of such authority is the same as the agency 
 of the wife or a servant. The circumstances which authorize the in- 
 ference of authority in the one case will be sufficient in either of the 
 others; in each the question being whether there was authority to 
 act as agent. When the agency is found to exist, the law then im- 
 plies a promise, as in the case of any other agency." "^ The father 
 who allows his child to purchase goods on his credit, and pays the 
 bills without objection, cannot be heard to deny the child's agency. 
 There is a clear case of agency by estoppel, for the father thus holds 
 out the child as having authority to bind him. 
 
 If the parent refuses to furnish his child with necessaries, he may 
 nevertheless be charged therefor on the principles of agency;"' 
 and if a third person purchases necessaries for the child, the parent 
 
 B4 Auringer v. Cochrane, 225 Mass. 273, 114 N. B. 355. 
 
 B5 Martz V. Fullhart, 142 Mo. App. 348, 126 S. W. 964. A mother living 
 with the father is not liable for necessaries in the absence of an express as- 
 sumption of liability. Leake v. J. R. King Dry Goods Co., 5 Ga. App. 102, 
 62 S. E. 729. 
 
 06 Thayer v. White, 12 Mete. (Mass.) 343 ; Fowlkes v. Baker, 29 Tex. 135, 
 94 Am. Dec. 270; Bryan v. Jackson, 4 Conn. 288; Murphy v. Ottenheimer, 
 84 111. 39, 25 Am. Hep. 424; Armstrong Clothing Co. v. Boggs, 90 Neb. 499, 
 138 N. W. 1122, Ann. Cas. 1913A, 966; Johnson v. Smallwood, 88 lU. 73; 
 Manning v. Wells, 8 Misc. Eep. 646, 29 N. T. Supp. 1044. The payment of one 
 accomit without protest does not render the parent liable for subsequent 
 purchases made by the child vmless the purchases were necessaries. A. Al- 
 schuler & Sons v. Anderson, 142 111. App. 323. 
 
 07 Murphy v. Ottenheimer, 84 111. 39, 25 Am. Rep. 424; McCRADY v. 
 PRATT, 138 Mich. 203, 101 N. W. 227, Cooley Gas. Persons and Domestic Re- 
 lations, 172. 
 
 ssLoucks V. Dutcher (Go. Ct.) 112 N. Y. Supp. 269; Snell v. Ham (Tex. 
 Oiv. App.) 151 S. W. 1077; PORTER v. POWELL, 79 Iowa, 151, 44 N. W. 295, 
 7 L. R. A. 176, 18 Am. St. Rep. 353, Cooley Cas. Persons and Domestic Rela- 
 tions, 168. But the father is not liable If there has been no neglect or re- 
 fusal in the absence of authorization. Smith v. Gilbert, 80 Ark. 525, 98 S. 
 W. 115, 8 L. R. A. (N. S.) 1098. 
 
§ 119) parent's duty to photeot child 333 
 
 is liable, but only to the extent of the sums actually paid out and 
 reasonably necessary."" So, too, if the parent compels the child to 
 leave home through fear of violence or other adequate cause, he will 
 still be liable for necessaries."" On the other Iiand, the father can- 
 not be held liable, even for necessaries, on the theory of agency 
 if he has emancipated the child ;''^ and, of course, if the child 
 leaves home on his own account, to seek his fortune or to avoid 
 discipline, he does not carry with him the parent's credit."^ 
 
 The necessaries for the furnishing of which the parent may be 
 held liable on the theory of agency, include food, clothing, resi-, 
 dence, instruction, and medical services."^ 
 
 In all cases of implied agency, if the credit is given to the child, 
 and not to the parent, the latter does not become liable,"* for his 
 liability is based on the theory that the child has. contracted, not 
 for himself, but as agent for his parent; that he has pledged his 
 parent's, and not his own, credit. 
 
 PARENT'S DUTY TO PROTECT CHILD 
 
 119. The law recognizes the duty of a parent to protect his child, 
 and will uphold him therein. 
 
 The duty of a parent to protect his child is fully recognized by 
 the common law ; but, as was said by Blackstone, it is "rather per- 
 
 5 9 CheeTer v. Kelly, 96 Kan. 269, 150 Pac. 529. 
 
 80 Brosius v. .Barker, 154 'Mo. App. 657, 136 S. W. 18; Hunycutt v. Thomp- 
 son, 159 N. C. 29, 74 S. B. 628, 40 L. B. A. (N. S.) 488, Ann. Gas. 1913B, 928; 
 Stanton v. ^Willson, 3 Day (Conn.) 37, 3 Am. Dec. 255 ; Owen, v. White, 5 
 Port. (Ala.) 435, 30 Am. Dec. 572 (dictum). 
 
 61 Holland v. Hartley, 171 N. C. 376, 88 ^. E. 507. 
 
 82 Dyer v. Helson, 117 Me. 203, 103 Atl. 161 ; Brosius v. Parker, 54 Mo. 
 App. 657, 136 S. W. 18; Hyde v. Leisenring, 107 Mich. 490, 65 N. W, 536. 
 But see Bradley v. Keen, 101 111. App. 519, where the child was only eight 
 or nine years old. Where a minor was away attending school against the 
 wishes of the father, he had no authority to pledge the father's credit even 
 for medical services. Sassaman v. Wells, 178 Mich. 167, 144 N. W. 478. 
 
 63 Gately Outfitting Co. v. Vinson (Mo. App.) 182 S. W. 133; Des Mond v. 
 Kelly, 163 Mo. App. 205, 146 S. AV. 99 ; Simoneau v. I'acific Electric By. Co., 
 l59 Cal. 494, 115 Pac. 320; Howell v. Blesh, 19 Okl. 260, 91 Pac. 893. Also 
 funeral expenses. P. J. Hunycutt & Co. v. Thompson, 1591 N. C. 29, 74 S. 
 E. 628, 40 L. E. A. (N. S.) 488, Ann. Cas. 1913E, 928 ; Gobber v. Empting, 72 
 Misc. Rep. 10, 129 N. Y. Supp. 4. Proper articles of clothing to be worn at 
 the funeral of the child's mother are also necessaries. Bisbee v. McManus, 
 229 Mass. 124, 118 N. E. 192. 
 
 6* Varney v. Young, 11 Vt. 258. 
 
334 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 mitted than enjoined by any municipal law ; nature in this respect 
 wdrking so strongly as to need rather a check than a spur." °° A 
 parent may justify an assault and battery, or even a homicide, in 
 the necessary defense of th^ person of his child.'® And he could 
 maintain and uphold his children in their lawsuits without being 
 guilty of the common-law oflfense of maintenance.'^ 
 
 PARENT'S DUTY TO EDUCATE CHILD 
 
 120. Parents are not under any legal duty to educate their children. 
 
 It is sometimes said by text-writers that it is the duty of a 
 parent to give his children an education suitable to their station 
 in life,'* and there are dicta in many cases to the same efifect." 
 This duty, however, is only a moral one. ■ There is no legal duty 
 on the part of a parent to educate his children, however wealthy he 
 may be. At least, there seems to be no case in which such a duty 
 has been enforced, either directly or indirectly. Education is not 
 necessary <to the subsistence of a child, and the reasons which 
 should,'and in some states do, render a parent legally bound to sup- 
 port his child do not apply. 
 
 PARENT'S LIABILITY FOR CHILD'S TORTS 
 
 121, A parent is not liable, because of the relation, for the torts of 
 
 his child ; but he may be liable for torts committed as his 
 agent or servant, or with his knowledge and acquiescence. 
 
 Unlike the stJatus of husband and wife, where the law makes the 
 husband liable for his wife's torts," the status of parent and child 
 
 as 1 Bl. Comm. 450. A parent is bound by positive law to protect his 
 child. ROUNDS^ BROS. v. McDANIEL, 133 Ky. 699, 118 S. W. 956, 134 Am. St. 
 Rep. 482, 19 Ann. Cas. 326, Cooley Cas. Persons and Domestic Relations, 193. 
 
 66 1 Bl. Comm. 450; 1 Hawk. P. O. 131. 
 
 «7 1 BI. Comm. 450. But it is not the legal duty of a parent to engage 
 counsel to defend his child. Hill v. Childress, 10 Xerg. (Tenn.) 514. 
 
 es 1 Bl. Comm. 150; 2 Kent, Comm. 189. 
 
 8 8 Morse v. Welton, 6 Conn. 547, 16 Am. Dec. 73; Abbott v. Converse, 4 
 Allen (Mass.) 533 ; Lord v. Poor, 23 Me. 569 ; In re Putney, 61 Misc. Rep. 1, 
 114 N. X. Supp. 556 ; ROUNDS BROS. v. McDANIEL, 133 Ky. 669, 118 S. W. 
 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326, Cooley Cas. Persons and Do^ 
 mestic Relations, 193 ; Johnson v. Terry, 34 Conn. 259. See, also. In 're 
 
 70 Ante, p. 95. 
 
§ 121) parent's liability fob child's torts 335 
 
 imposes no liability on the parent for the torts of his child not 
 committed with his knowledge, nor by his authority, express or 
 implied.'^ There was such a liability under the civil law, but it 
 never was recognized by the common law. If the parent authorizes 
 the child to act as his servant or agent in any matter, he will be lia- 
 ble for any torts committed by the child in the course of this em- 
 ployment.'^ This liability does not depend upon the relationship 
 of the parties as parent and child, but upon their relationship as 
 principal and agent, and is governed by the rules governing other 
 cases of agency. "A father is never liable for the wrongful acts 
 of his minor son, unless the acts are committed with the father's 
 consent, or in connection with the father's business." '* 
 
 Guertin's Child, 5 Alaska, 1; Brewer v. Gary, 148 Mo. App. 193, 127 S. W. 
 685. 
 
 "Moon V. Towers, 8 0. B. (N. S.) 611; Palm v. Ivorson, 117 111. App. 535; 
 Maher v. Benedict, 123 App. Div. 579, 108 N. Y. Supp. 228; Chastain v. 
 Johns, 120 Ga. 977, 48 S. E. 343, 66 L. R. A. 958 ; Miller v. Meche, 111 La. 
 143, 35 South. 491; TifCt v. Tifft, 4 Denio (N. T.) 175; Paulin v. Howser, 
 63 ni. 312; Wilson v. Garrard, 59 111. 51; Schlossberg v. Lahr, 6Q How. 
 Prac. (N. Y.) 450; Brohl v. Lingeman,'41 Mich. 711, 3 N. W. 199; Baker v. 
 Haldeman, 24 Mo. 219, 69 Am. Dec. 430; Paul y. Hummel, 43 Mo. 119, 97 
 Am. Dec. 381; Chandler v. Deaton, 37 Tex. 406; Edwards v. Grume, 13 
 Kan. 348; Smith v. Davenport, 45 Kan. 423, 25 Pac. 851, 11 D. R. A. 429, 
 23 Am. 'St. Kep. 737; McCauley v. Wood, 2 N. J. Law, 86; Scott v. Watson, 
 46 Me. 362, 74 Am. Dec. 457 ; Shockley v. Shepherd, 9 Houst. (Del.) 270, 32 
 Atl. 173; McCarthy v. Heiselman, 140 App. Div. 240, 125 N. Y. Supp. 13; 
 Fanton v. Byrum, 26 S. D. 366, 128 N. W. 325, 34 L. R. A. (N. S.) 501; 
 BRITTIN6HAM v. STADIEM, 151 N. C. 299, 66 S. B. 128, Cooley Gas. Persons 
 and Domestic Relations, 177 ; LESSOFF v.' GORDON, 58 Tex. Civ. App. 213, 
 124 S. W. 182, Cooley Cas. Persons and Domestic Relations, 174; Winn v. 
 HoUiday, 109 Miss. 691, 69 South. 685; Birch v. Abercrombie, 74 Wash. 486, 
 133 Pac. 1020, 50 L. R. A. (N. S.) 59, modified on rehearing 135 Pac. 821; 
 Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. R. A. (N. S.) 87. A parent 
 is not liable for the tort of his child committed while in play. Schumer v. Reg- 
 ister, 12 Ga. App. 743, 78 S. E. 731. 
 
 72 Teagarden v. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332; Strohl v. Lev- 
 an, 39 Pa. 177; Lashbrook v, Patten, 1 Duv. (Ky.) 317; Beedy v. Reding, 
 16 Me. 362 ; Dunks v. Grey (C. C.) 3 Fed. 862; In Strohl v. Levan, supra, 
 a father was held liable in trespass for an injury inflicted by his son while 
 driving the father's team, the father being present in the wagon at the 
 time. 
 
 73 Smith V. Davenport, 45 Kan. 423, 25 Pac. 851, 11 L. R. A. 429, 23 Am. 
 St. Rep. 737, See, also, Lemke v. Ady (Iowa) 159 N. W. 1011. In Tifet v. 
 TifEt, 4 Denio (N. Y.) 175, an action was brought against a man for the kill- 
 ing of a hog by a dog, on the ground that the dog was set on by the defend- 
 ant's minor daughter. In Baker v. Haldeman, 24 Mo. 219, 69 Am. Dec. 
 430, and other cases, supra, the father was sued for an assault committed by 
 his child. In neither case was the tort committed with the father's consent. 
 
336 
 
 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 In accordance with these principles, it has been held that the 
 owner of an automobile is not liable for the negligent acts of his 
 son while driving the car, unless the son was acting as the father's 
 agent or in his service, express or implied/* He will not be liable 
 where the son is using the car solely for his own purposes.''' 
 There is a difiference of opinion on the question whether the liabil- 
 ity of the father will attach if the son has been given permission to 
 use the car. , In some cases it has been held that the mere fact that 
 the son, using the car for his own purposes, is doing so with the 
 father's permission, does not make the father liable/* While in 
 other cases the father has been held liable apparently on the ground 
 that the son was using the car with his father's permission.'" The 
 theory in some cases seems to be that where the father has furnish- 
 ed an automobile as the customary conveyance of his family, the 
 son, though driving for his own pleasure, is nevertheless engaged in 
 the business of the father.''^ And it is generally held that, where 
 
 and he was held not liable. On the other hand, in Teagarden v. McLaughlin, 
 86 Ind. 476, 44 Am. Rep. 332, where? a minor son had contracted with his 
 father to clear a parcel of land, and in doing so negligently burned the 
 property of a third person, the father was held liable, not because he was 
 the parent of the wrongdoer, but because the wrongdoer was acting in his 
 employment. In LESSOFF v. GORDON, 58 Tex. Civ. App. 213, 124 S. W. 182, 
 Cooley Gas. Persons and Domestic Relations, 174, a child, in the absence of 
 the father and in direct opposition to the wishes of the mother, attempted 
 to pen up a cow. The cow ran into plaintifC, injuring him. It appeared that 
 the boy had never had special care of the cow, though he had attended to 
 feeding her occasionally. It was held that the boy's acts were not within 
 the scope of any duty or service for the father, so as to render him liable. 
 
 74Erlick v. Heis, 193 Ala. 669, 69 South. 536; Harris v. Jones, 17 Ga. 
 App. 215, 87 S. E. 713; Sultzbach v. Smith, 174 Iowa, 704, 156 N. W. 673, 
 L. R. A. 1916F, 228; King v. Smythe, 140 Tenn. 217, 204 S. W. 296, L. R. 
 A. 1918F, 293 ; Warren v. Norguard, 103 Wash. 284, 174 Pac. 7 ; Watkins v 
 Clark, 103 Kan. 629, 176 Pac. 131. 
 
 7B Dougherty v. Woodward, 21 Ga. App. 427, 94 S. E. 636; Hays v. Hogan 
 273 Mo. 1, 200 S. W. 286, L. R. A. 19180, 715, Ann. Gas. 1918E, 1127; Lewis 
 V. Steele, 52 Mont. 300, 157 Pac. 575. 
 
 7e]Waher v. Benedict, 123 App. Div. 579, 108 N. Y. Supp. 228; Lewis v 
 Steele, 52 Mont. 300, 157 Pac. 575. 
 
 77 Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351. Under the Nebraska 
 statute (Rev. St. 1913, § 3048) the owner of an automobile who permits his 
 son, under the age of 16, to operate the car, is guilty of negligence and is 
 liable if other elements of actionable negligence are present Walker v 
 Klapp, 99 Neb. 794, 157 N. W. 962, L. R. A. 1916E, 1292. To the same efCect," 
 see Taylor v. Stgwart, 172 N. O. 203, 90 S. B. 134. 
 
 7 8 Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N S) 
 59, modified on rehearing 135 Pac. 821. ■ . . ,, 
 
§ 121) parent's liability for child's torts 337 
 
 the car is used for a family purpose with the authority of the father, 
 he is liable for the negligent acts of his son.''" 
 
 The rule that the father is not liable by virtue of the relationship 
 for the torts of his child applies, irrespective of the nature of the 
 tort, and generally irrespective of the character of the child. A 
 father, for instance, is not liable for an unauthorized assault by 
 his son, though he may have known that the son was of a vicious 
 character.*" If a father knows that his minor child is committing 
 a tort, and makes no effort to restrain him, he will be deemed to 
 Jtjave consented and authorized its commission.'^ So, too, if the par- 
 ent knows that the child is careless and incompetent to handle a 
 dangerous instrumentality, such as firearms he will be liable for in- 
 juries committed by the child by the wrongful or negligent use 
 thereof.*" 
 
 TSUphofe V. McCormick, 439 Minn. 392, 166 N. W. 788; Kayser v. Van 
 Nest, 125 Minn. 277, 146 N. W. 1091, 51 L. R. A. (N. S.) 970 ; Smith v. Jordan, 
 211 Mass. 269, 97 N. E. 761; McNeal v. McKain, 88 Okl. 449, 126 Pac. 742, 
 41 h. B. A. (N. S.) 775. 
 
 80 Paul V. Hummel, 43 Mo. 119, 97 Am. Dec. 881. Parents, whose son had 
 been discharged from a hospital for the insane, are not liable for a homicide 
 subsequently committed by him, in the absence of evidence that they 
 could have reasonably anticipated the act of the son, because of a change in 
 his condition after discharge. Ballinger v. Rader, 153 N. C. 488, 69 S. E. 
 497. 
 
 81 In Beedy v. Reding, 16 Me. 362, a father was held liable in trover for 
 wood taken at three different times by his minor sons, under circumstances 
 which justified the jury in finding that it was taken with the father's knowl- 
 edge. "The minor sons of the defendant," said the court, "being at the time 
 members of his family, with the defendant's team, at three several times, 
 hauled away the plaintiffs wood. This could hardly have been done without 
 the defendant's knowledge, if it had not his approbation. It was his duty to 
 have restrained them from trespassing on his neighbor's property." Where 
 the father knew that his son had stretched a rope across the highway, so that 
 a traveler was injured, he is liable. Stewart v. Swartz, 57 Ind. App. 249, 
 106 N. B. 719. And see Dunks v. Grey (C. C.) 3 Fed. 862; Schultz v. Mor- 
 rison, 91 Misc. Rep. 248, 154 N. Y. Supp. 257. 
 
 82 Sousa V. Irome, 219 Mass. 278, 106 N. E. 998; Charlton v. Jackson, 188 
 Mo. App. 618, 167 S. W. 670; Johnson v. Glidden, 11 S. D. 287, 76 N. W. 
 983, 74 Am. St. Rep. 795; Hoverson v. Noker, 60 Wis. 511, 19 N. W. 382, 
 50 Am. Rep. 381; Marshall v. Wymond (Ind. App.) 121 N. E. 449. And see 
 Stephens v. Stephens, 172 Ky. 780, 189 S. W. 1143, holding father liable where 
 he permitted son 14 years old to have dynamite caps. Intrusting an auto- 
 mobile to a son known to be incompetent renders the parent liable, though 
 the son was not acting as father's agent or servant. Gardiner v. Solomon, 
 200 Ala. 115, 75 South. 621, L. R. A. 1917F, 380. But an automobile is not a 
 dangerous instrument, so as to render a parent negligent in permitting his 
 son to use it. Blelr v. Broadwater, 121 Va. 301, 93 S. E. 632, L. R. A. 1918A, 
 1011. 
 
 TIBT.P.& D.Rel.(3d Ed.)— 22 
 
338 DUTIES AND LIABILITIES OF PARENTS (Ch. 9 
 
 The liability of a child for his own torts will be shown when we 
 come to deal with the disability of infancy/* 
 
 PARENT'S LIABILITY FOR CHILD'S CRIMES 
 
 122. The relation of parent and child does not render the parent 
 liable for his child's crimes. 
 
 A parent may become criminally liable for the acts of his son if 
 he counsels, aids, or abets him therein, just as he would become lia- 
 ble as an aider and abettor of any other criminal. But he does not 
 incur any criminal liability for acts of his child to which he is in lio 
 way a party. The child's liability for his own crimes is hereafter 
 shown.'* 
 
 «sPost, p. 623. 8* Post, P.J529. 
 
§ 123) EIGHTS OF PARENTS AND OF CHILDREN 339 
 
 CHAPTER X 
 EIGHTS OF PARENTS AND OF CHILDREN 
 
 123. Rights of Parents In General. 
 
 124. Parent's Right to Correct Child. 
 125-126. Custody of Children. 
 
 127. Parent's Right to Child's Services and Earnings. 
 
 128-131. Emancipation of Children. 
 
 132-134. Action by Parent for Injuries to Child. ' 
 
 135-137. Action by Parent for Seduction or Debauching of Daughter. 
 
 138, 139. Action by Parent for Abducting, Enticing, or Harboring Child. 
 
 140. Parent's Rights in Child's Property. 
 
 141. Gifts, Conveyances, and Contracts between Parent and Child. 
 142-143. Advancements. 
 
 144. Duty of Child to Support Parents. 
 
 145. Domicile of Child. 
 
 IN GENERAL 
 
 123. To enable them to perfqpn their duties, parents have, subject 
 to certain restrictions — 
 
 (a) The right to correct their children. 
 
 (b) The right to their custody. 
 
 (c) The right to their services and earnings. 
 
 Parents possess certain powers over their children, and certain 
 rights in relation to them. As will be seen in the following pages, 
 they have the right to control and correct them within certain lim- 
 its, the right to the custody of them, and the right to their services. 
 Blackstone says that these rights are given to parents, partly to en- 
 able them to more effectively perform their duty, and partly as a 
 recompense for their care and trouble in discharging it.^ Kent 
 says : "The rights of parents result from their duties. As they are 
 bound to maintain and educate their children, the law has given 
 them a right to such authority, and, in the support of that author- 
 ity, a right to the exercise of such discipline as may be requisite for 
 the discharge of their sacred trust. This is the true foundation of 
 parental power." * 
 
 1 1 Bl. Coram. 452. ' 2 Kent, Comm. 203. 
 
340 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 PARENT'S RIGHT TO CORRECT CHILD 
 
 124. A parent, or one standing in loco parentis, may correct the 
 child in a reasonable manner. If the correction is exces- 
 sive or without cause, he will be amenable to the criminal 
 law. 
 
 A parent has the right to correct and punish his minor child in a 
 reasonable manner; and, so long as he keeps within the bounds of 
 moderation, he cannot be made amenable to the criminal law there- 
 for, as he would be if he undertook to punish another's child.^ Per- 
 sons standing in loco parentis have the same right.* A school- 
 teacher is within the rule.' In the decided cases, the question has 
 generally arisen in regard to the father; but there is no reason why 
 the power of correction should not, like the power of control and 
 the right to the child's services, pass to the mother on the father's 
 death. Indeed, there seems no reason to doubt but that, even dur- 
 ing the father's lifetime, except against his objection, the mother 
 has a legal right to correct her children. As a child cannot main- 
 tain an action in tort against its parents,* a child cannot maintain a 
 civil action against its parents, or one standing in loco parentis, 
 for assault in administering corporal punishment.'^ 
 
 A parent cannot exercise the right of correction in a cruel man- 
 ner, as by inflicting excessive punishment' Nor can he inflict pun- 
 
 si Hawk. P. C. 130; 1 Bl. Oomm. 452; Clark, Cr. Law, 212; Winterburn 
 V. Brooks, 2 Car. & K. 16. 
 
 * Gorman v. State, 42 Tex. 221 ; State v. Alford, 68 N. O. 322 ; Boyd v. 
 State, 88 Ala. ]6&, 7 South. 268, 16 Am. St. Kep. 31; Dean v. State, 89 Ala. 
 46, 8 South. 38, See, also, FortinTjerry v. Holmes, 89 Miss. 373, 42 South. 799, 
 holding that, where a mother left her child with a person who was to sup- 
 port, educate, care for, and treat it as his own child, such person stood In 
 loco parentis, and hence could not be sued by the child for a whipping in- 
 flicted on it, even though the mother stated, when she gave the child, tiiat it 
 was not to be whipped. 
 
 "Anderson v. State, 3 Head (Tenn.) 455, 75 Am. Dec. 774; Lander v. 
 Seaver, 32 Vt. 114, 76 Am. Dee. 156; State v. Burton, 45 Wis. 150, 30 Am. 
 Bep. 706 ; Danenhoffer v. State, 69 Ind. 295, 35 Am. Bep. 216 ; Patterson v. 
 Nutter, 78 Me. 509, 7 Atl. 278, 57 Am. Kep. 818. 
 
 6 Roller V. Boiler, 37 Wash'. 242, 79 Pac. 788, 68 L. B. A. 893, 107 Am. St. 
 Rep. 805, 3 Ann. Cas. 1. 
 
 T Kowe V. Rugg, 117 Iowa, 606. 91 N. W. 903, 94 Am. St Bep. 318. 
 
 8 Beg. V. Griffin, 11 Cox, Or. Cas. 402 ; Johnson v. State, 2 Humph. (Tenn.) 
 283, 36 Am. Dec. 322 ; Com. v. Coffey, 121 Mass. 66 ; Com. v. Blaker, 1 Brewst. 
 (Pa.) 311 ; Neal v. State, 54 Ga. 281 ; State v. Bitman, 13 Iowa, 485 ; State v. 
 
§ 124) parent's eight to coreeot child 341 
 
 ishment wantonly and without cause." If he transcends his au- 
 thority in this respect,' he will be amenable to the criminal law. He 
 will be guilty of assault and battery,^" or murder or manslaugh- 
 ter/^ according to the circumstances. "The right of parents to 
 chastise their refractory and disobedient children is so necessary 
 to the government of families, and to the good order of society, 
 that no moralist or lawgiver has ever thotight of interfering with 
 its existence, or of calling upon them to account for the manner of 
 its exercise upon light or frivolous pretenses. But at the same time 
 that the law has created and preserved this right, in its regard for 
 the safety of the child, it has prescribed bounds beyond which it 
 shall not be carried. In chastising a child, the parent must be 
 careful that he does not exceed the bounds of moderation, and in- 
 flict cruel and merciless punishment. If he do, he is a trespasser, 
 and liable to be punished by indictment. It is not, then, the in- 
 fliction of punishment, but the excess, which constitutes the offense ; 
 and what this excess shall be is not a conclusion of law, but a 
 question of fact, for the determination of the jury." ^^ 
 
 Some of the authorities hold a parent, or one standing in loco 
 parentis, criminally liable if, in correcting the child, he acts unrea- 
 sonably — that is, if the correction is immoderate or excessive in fact 
 — even though he may have acted honestly and without malice, and 
 though no permanent injury may have been inflicted on the child; 
 and they leave it to the jury exclusively to determine whether the 
 correction was immoderate, without any further test than that of its 
 
 Jones, 95 N. C. 588, 59 Am. Eep. 282 ; Com. v. Seed, 5 Clark (Pa.) 78 ; Dean v. 
 State, 89 Ala. 46, 8 South. 38. 
 
 » FLETCHER v. PEOPLE, 52 lU. 395, Cooley Cas. Persons and Domestic Re- 
 lations, 181 ; Com. v. Coffey, 121 Mass. 66 ; Gorman v. State, 42 Tex. 221 ; 
 State V. Jones, 95 N. C. 588, 59 Am. Rep. 282; Hinkle v. State, 127 Ind. 
 490, 26 N. E. 777. It is held that, where the relation of parent and child ex- 
 ists, the child cannot maintain an action for damages against the parent 
 for personal injuries wrongfully inflicted. "The peace of society, and of the 
 familias composing society, and a sound public policy, designed to subserve 
 the repose of families, and the best interests of society, forbid to the minor 
 child a right to appear in court in the assertion of a claim to civil redress 
 for personal injuries suffered at the hands of the parent. The state, through 
 its criminal laws, will give the minor child protection from parental vio- 
 lence and wrongdoing, and this is all the child can be heard to demand." 
 Hewlett V. George, 68 Miss. 703, 9 South. 885, 13 L. R. A. 682. 
 
 10 Clark, Cr. Tvaw, 212. . 
 
 11 Clark, Cr. Law, 158, 172. 
 
 12 Johnson v. State, 2 Humph. (Tenn.) 283, 36 Am. Dec. 322. 
 
342 BIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 being reasonable.^" According to the better opinion, however, the 
 jury are not to be permitted to determine in all cases, without re- 
 gard to any fixed rule or standard, whether the correction was, in 
 their opinion, unreasonable, and therefore excessive. Parents must 
 be allowed to exercise some discretion. A jury cannot exercise it 
 for them. The court should therefore instruct the jury that they are 
 not justified in finding that the parent is criminally liable because he 
 exceeded his authority, unless they find that he inflicted permanent 
 injury, or that he acted from malice.^* As was said by the North 
 Carolina court: "It would be a dangerous innovation, fruitful in 
 mischief, if, in disregard of an established rule assigning limits to 
 parental power, it were to be left to the jury to determine in each 
 case whether a chastisement was excessive and cruel, and to con- 
 vict when such was their opinion." ^^ "The law has provided no 
 means whereby a parent meditating chastisement, can first obtain 
 a judicial opinion as to its necessity, the proper instruments, and 
 its due extent. In reason, therefore, if he acts in good faith, 
 prompted by true parental love, without passion, and inflicts no 
 permanent injury on the child, he should not be punished merely 
 because a jury, reviewing the case, do not deem that it was wise to 
 proceed so far." ^' Malice on the part of the parent may, of course, 
 be inferred from the circumstances, the fault for which the punish- 
 ment was inflicted, the instrument used, etc.^' Thus, malice may 
 
 1' Patterson v. Nutter, 78 Me. 509, 7 Atl. 273, 57 Am. Kep. 818; Johnson v. 
 State, 2 Humph. (Tenn.) 283, 36 Am. Dec. 322; Hinkle v. State, 127 Ind. 
 490, 26 N. E. 777 ; Neal v. State, 54 6a. 281. 
 
 1* State V. Jones, 95 N. O. 588, 59 Am. Rep. 282 ; State v. Alford, 68 N. O. 
 322 ; State v. Pendergrass, 19 N. C. 365, 31 Am. Dec. 416 ; Com. v. Seed, 5 
 Clark (Pa.) 78 ; Boyd v.' State, SS Ala. 169, 7 South. 268, 16 Am. St. Rep. 31 ; 
 Dean v. State, 89 Ala. 46, 8 South. 3S. 
 
 10 State V. Jones, 95 N. C. 588, 59 Am. Rep. 282. 
 
 16 1 Bish. Cr. I^aw, § 882. "There are some .well-considered authorities 
 which hold teachers and parents alike liable, criminally, if, in the infliction 
 of chastisement, they act clearly without the exercise of reasonable judg- 
 ment and discretion. The test which seems to be fixed by these cases is 
 the general judgment of reasonable men. Patterson v. Nutter, 78 Me. 509, 
 7 Atl. 273, 57 Am. Rep. 818. The more correct view, however, and the one 
 better sustained by authority, seems to be that when, in the judgment of 
 reasonable men, the punishment inflicted is immoderate and excessive, and a 
 jury would be authorized, from the facts of the case, to infer that it was in- 
 duced by legal malice, or wickedness of motive, the limit of lawful authority 
 may be adjudged to be passed." Boyd v. State, 88 Ala. 169, 7 South. 268, 
 16 Am. St. Rep. 31. 
 
 17 Boyd v. State, 88 Ala. 169, 7 South. 268, 16 Am. St. Rep. 31. 
 
§§ 125-126) CUSTODY OF CHILDREN 343 
 
 well be inferred where a father strikes his 10 year old daughter 
 with a saw ; ^' or leaves his 12 year old daughter in the house alone, 
 tied to a piece of furniture; ^'' or keeps his blind son shut up for 
 several days in winter, in a cold, damp cellar;^" or strikes his son 
 several times in the face with his fist, and with the butt end of a 
 stick, and uses language showing passion."^ 
 
 In all cases the legal presumption is that the correction was prop- 
 er, and the burden of proof is on him who contends that it was 
 otherwise.^^ 
 
 CUSTODY OF CHILDREN 
 
 125. At common law, in England, the father, and on his death the 
 
 mother, was entitled, as a matter of course, to the custody 
 and control of their minor children except in case of their 
 gross unfitness. Equity, however, would not allow the 
 right to control as against the well-being of the child. The 
 common-law doctrine has also been modified by statute 
 in England. 
 
 126. In this country the courts recognize the parental right of cus- 
 
 tody in the different jurisdictions, but the prevailing doc- 
 trine is that, in awarding the custody of a child, the welfare 
 of the child is the controlling consideration. The courts 
 consider, not only the fitness of the persons contending for 
 the custody, but the condition and future prospects of the 
 child, and the wishes of the. child where it is old enough 
 to decide intelligently. 
 
 At common law the father is entitled to the custody of his minor 
 child. Some cases recognize this as an absoltite right, except in the 
 case of the most flagrant unfitness, and have awarded the father the 
 custody of his child without taking the interests of the child into 
 consideration at all.^^ The right has been upheld even to the extent 
 
 18 Neal V. State, 54 Ga. 281. 
 IB Hinkle v. State, 127 Ind. 490, 26 N. E. .777. 
 
 2" FLETCHER v. PEOPLE, 52 111. 395, Cooley Cas. Persons and Domestic 
 Belations, 181. 
 
 21 Boyd V. State, 88 Ala. 169, 7 South. 268. 16 Am. St. Rep. 31. 
 
 22 See Anderson v. State, 3 Head (Tenn.) 455, 75 Am. Dee. 774. 
 
 28 Ex parte Hopkins, 3 P. Wms. 152; Rex v. De Manneville, 5 East, .221; 
 R«x V. GreenlilU, 4 Adol. & E. 624; Ex parte Skinner, 9 Moore, 278; In re 
 Andrews, I/. B. 8 Q. B. 153; People v. Olmstead, 27 Barb. (N. Y.) 9. 
 
344 RIGHTS OP PARENTS AND OF CHILDREN (Ch. 10 
 
 of allowing the father to take an infant from its mother's breast.^* 
 After the death of the father, the right to the custody of the chil- 
 dren passes to the mother.^° 
 
 The common-law rule of the husband's paramount right to the 
 custody of his children was modified in England by an act passed in 
 1839, known as "Talfourd's Act," conferring authority on the Court 
 of Chancery to award to the mother the custody of children under 
 the age of 7,'' and again by the "Infant's Custody / ct," of 1873, 
 conferring such authority as to children under 16.^' Long prior to 
 these acts, the Court of Chancery in England had departed from 
 the strict rule of the common law, and had refused to recognize any 
 right in the father to demand the custody of his child, regardless of 
 the child's interests, and had interfered to protect the welfare of the 
 child; ^* and the rule there is now well settled that a court exercis- 
 ing chancery jurisdiction will primarily consider the welfare of the 
 child.=» 
 
 In this country the courts, both of law and of equity, while rec- 
 ognizing the common-law rule that the right to the custody of the 
 child is primarily in the father,^" and after his death in the mother,'^ 
 have modified the rule to a greater or less extent, and regarding 
 the father's paramount right at common law as a mere prima facie 
 right,'^ which is not inalieilable,^' have adopted the equitable prin- 
 ciple that this right must yield to considerations affecting the well- 
 being of the child.^* While there is some conflict in the cases, the 
 great weight of authority \ establishes the following propositions: 
 
 2* Eex V. De Manneville, 5 East, 221. 
 
 2 5 Viiiareal v. Mellish, 2 Swanst. 536; People v. Wilcox, 22 Barb. (N. T.) 
 178 ; Brackett v. Brackett, 77 N. H. 68, 87 Atl. 252 ; Cook v. Bybee, 24 Tex. 
 278. 
 
 26 St. 2 & 3 Vict. c. 54. 
 
 27 St. 36 & S7 Vict. c. 12. 
 
 28 2 Story, Eq. Jur. § 1341; Wellesley v. Duke of Beaufort, 2 Kuss. 1; 
 Wiellesley v. Wellesley, 2 Bligh. (N. S.) 141. 
 
 20 Reg. V. Gyngall,'[1893] 2 Q. B. 232. 
 
 3 Brackett v. Brackett, 77 N. H. 68, 87 Atl. 252. 
 
 81 Brackett v. Brackett, 77 N. H. 68, 87 Atl. 252; In re Lindner's Estate, 13 
 Cal. App. 208, 109 Pac. 101. Where ttie mother had been awarded the custody 
 of the child and subsequently died (the father) was entitled to the custody of 
 the child, if a proper person. In re Smith's Guardianship (Iowa) 158 N. W. 
 578. 
 
 32 Jensen y. Jensen, 168 Wis. 502, 170 N. W. 735. 
 
 3 3 State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S. Wi 1028, Ann. Cas. 
 1915D, 696. 
 
 s^Dtimain v. Gwynne, 10 Allen (Mass.) 270; Wadleigh t. NewhaU (C. C.) 
 
§§ 125-126) CUSTODY OF CHILDREN 345 
 
 (1) Though the courts have a discretion in contentions over the 
 custody of children, and will take into consideration the welfare 
 of the child, the right of the father is generally held to be para- 
 mount, if he is a fit person. ^° The courts cannot act arbitrarily, 
 and disregard the rights of the father, merely because the prospects 
 and surroundings of the child will be brighter if he is awarded to 
 some other and more wealthy person. The parent cannot be de- 
 prived of the custody of his children because he is poor, and occu- 
 pies a humble station in life, and a more wealthy and refined person 
 is willing to take them, and give them better advantages. *° As 
 
 136 Fed. 941 ; WAKD v. WARD, 34 Tex. Civ. App. 104, 77 S. W. 829, Oooley 
 Cas. Persons and Domestic Relations, 189; In re Smith, 13 111. 138; Cowls 
 V. Cowls, 3 Oilman (111.) 435, 44 Am. Dec. 708; State v. Baird, 21 N. J. 
 Eq. 384 ; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S. "Wi. 1028, Ann. Gas. 
 1915D, 696; Jensen v. Jensen, 168 Wis. 502, 170 N. Wi 735; Peese v. 
 Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; State v. Flint, 63 Minn. 
 187, 65 N. W. 272; Schroeder v. State, 41 Neb. 745, 60 N. Wl 89; Slater 
 V. Slater, 90 Va. 845, 20 S. E. 780; Corrie v. Corrie, 42 Micli. 509, 4 N. 
 W. 213; Rowe v. Rowe, 28 Mich. 353; In re Heather Children, 50 Mich. 
 261, 15 N. W. 487; Saunders v. Saunders:, 166 Ala. 351, 52 South. 310; 
 Steele v. BDohenadel, 141 111. App. 201, affirmed Hohenadel v. Steele, 237 111. 
 229, 86 N. E. 717 ; Waters v. Gray (Mo. App.) 198 S. W. 33 ; Knapp v. Tolan, 
 26 N. D. 23, 142 N. W. 915, 49 h. R. A. (N. S.) 83; Braekett v. Brackett, 77 
 N. H. 68, 87 Atl. 252. 
 
 3 5 Verser v. Ford, 37 Art. 27; Terry v. Johnson, 73 Neb. 653, 103 N. W. 319; 
 GILMORE V. KITSON, 165 Ind. 402, 74 N. E. 1083, Cooley Cas. Persons and 
 Domestic Relations, 182 ; Parker v. Wiggins (Tex. Civ. App.) 86 S. W. 788 ; 
 Hernandez v. Thomas, 50 Pla. 522, 39 South. 641, 2 L. R. A. (N. S.) 203, 111 
 Am. St. Rep. 137, 7 Ann. Cas. 446; State v. Richardson, 40 N. H. 272; 
 People V. Sinclair, 47 Misc. Rep. 230, 95 N. Y. Supp. 861 ; Rust v. Vanvacter, 
 9 W. Va. 600 ; Henson v. Walts, 40 Ind. 170 ; Draper v. Draper, 68 111. 17 ; 
 State v. Barney, 14 R. I. 62 ; Johnson v. Terry, 34 Conn. 259 ; People v. Olm- 
 stead, 27 Barb. (N. Y.) 9 ; Lovell v. House of Good Shepherd, 9 Wash. 419, 37 
 Pac. 660, 43 Am. St. Rep. 839 ; Brlnster v. Compton, 68 Ala. 299 ; Slater v. 
 Slater, 90 Va. 845, 20 S. E. 780 ; Latham v. Ellis, 116 N. C. 30, 20 S. B. 1012 ; 
 People ex rel. Snell v. Snell, 77 Misc. Rep. 538, 137 N. T. Supp. 193 ; Brackett 
 V. Brackett, 77 N. H. 68, 87 Atl. 252 ; Buchanan v. Buchanan, 93 Kan. 613, 144 
 Pac. 840; Kirkland v. Matthews (Tex. dv. App.) 174 S. W. 830. The fa- 
 ther is entitled to the custody, even against a guardian appointed without his 
 consent. In re Schwartz, 171 Cal. 633, 154 Pac. 304. In Idaho the father 
 has no absolute right to deprive the mother of the custody of an infant child 
 merely because he is the father. State v. Beslin, 19 Idaho, 185, 112 Pac. 
 1053. 
 
 3 Swarens v. Swarens, 78 "Kan. 682, 97 Pac. 968; People ex rel. Beaudoin 
 v. Beaudoin, 126 App. Div. 505, 110 N. T. Supp. 1092, affirmed 193 N. T. 611, 
 86 N. B. 1129; Wohlford v. Burckhardt, 141 111. App. 321; Hernandez v. 
 Thomas, 50 Fla. 522, 39 South. 641, 2 L. R. A. (N. S.) '203, 111 Am. St. Rep. 
 137, 7 Ann. Cas. 446; Cormack v. Marshall, 122 111. App. 208; Dunkin v. 
 Seifert, 123 Iowa, 64, 98 N. W. 558. 
 
346 EIGHTS OF PARENTS AND OF CHILDEEN (Ch. 10 
 
 was said by the Arkansas court: "It is one of the cardinal prin- 
 ciples of nature and of law that as against strangers, the father, 
 however poor and humble, if able to support the child in his own 
 style of life, and of good moral character, cannot, without the most 
 shocking injustice, be deprived of the privilege by any one what- 
 ever, however brilliant the advantage he may offer. It is not 
 enough to tonsider the interests of the child alone." ^' While the 
 welfare of the child is always to be considered, due weight must 
 always be given to the legal rights of the father. "The discretion 
 to be exercised is not an arbitrary one, but, in the absence of any 
 positive disqualification of the father for the proper discharge of 
 his parental duties, he has, as it seems to us, a paramount right to 
 the custody of his infant child, which no court is at liberty to dis- 
 regard. And, while we are bound to also regard the permanent in- 
 terests and welfare of the child, it is to be presumed that its inter- 
 ests and welfare will be best promoted by continuing that guardian- 
 ship which the law has provided, until it is made plainly to appear 
 that the father is no longer worthy of the trust." ^* 
 ■ (2) The best interests of the child are always to be considered, 
 having due regard to the parental rights of the father.^" Few cases 
 can be found in which a child has' been taken from a father, who 
 was able and willing to support it, and who had been guilty of no 
 breach of duty towards it, and given to a stranger or to a more dis- 
 tant relative. An examination of the cases will show that where 
 the supposed interests of the child have been allowed to control as 
 against the right of the father, the father has been guilty of some 
 breach of his duty to the child. If a father, or one standing in loco 
 parentis, is a drunkard, or a criminal, or cruel,*" or shiftless, or oth- 
 erwise unfit,*^ the interests of the child should outweigh his paren- 
 
 sTVerser v. Ford, 37 Ark. 27. 
 
 38 State V. Richardson, 40 N; H. 272 ; Taylor v. Taylor, 103 Va. 750, 50 S. 
 E. 273. It has been held, however, that where husband and wife are separated 
 the question which one of them is entitled to the custody of their child is 
 within the sound discretion of the court. Lozauo v. Martinez, 36 Phil. Rep. 
 976. 
 
 3 8 Commonwealth v. Strickland, 27 Pa. Super. Ot. 309; Parker v. Wiggins 
 (Tex. Civ. App.) 86 S. W. 788 ; Mason v. Williams, 165 Ky. 331, 176 S. W. 
 1171; Taylor v. Taylor, 103 Va. 750, 50 S. B. 273; Wadleigh v. Newhall 
 (O. C.) 136 Fed. 941. 
 
 40 Marshall v. Beams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118; In re 
 Gustow, 220 N. Y. 373, 115 N. E. 995. 
 
 41 Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321 ; In re Brovra, 117 111. 
 
|§ 125-126) CUSTODY OF CHILDEEN 347 
 
 tal right of custody. So, if a father deserts his wife and child when 
 the child is helpless, and leaves her or others to perform his duties 
 for him, the welfare of the child may outweigh his parental right 
 when he subsequently seeks the aid of the court to regain the cus- 
 tody which he has thus relinquished.*" And even where he relin- 
 •quishes the custody of his child to another at the latter's request, 
 and for what he supposes to be the interests of the child, he may 
 be regarded, in a sense, as having neglected his duty as a father ; 
 and his right to the child's custody when he seeks to regain it, par- 
 ticularly after the lapse of years, will have to yield to the child's 
 interests.*' 
 
 Almost all the cases in which the father's right to the custody of 
 his child has been denied are cases in which he was unfit to have 
 the care of the child, or else cases in which he had rehnquished his 
 right for a time, and sought the aid of the court to regain custody. 
 Manifestly, in these cases, he has no right to complain if the court 
 regards the child's welfare as the controlling consideration, even 
 where he is able, ready, and willing to perform his duty in the fu- 
 ture.** , 
 
 App. 332; Plahn v. Dribred, 36 Tes. Civ. App. 600, 83 S. W. 867; Cowls v. 
 Cowls, 3 Gilman (111.) 435, 44 Am. Dec. 708. 
 
 *2 McShan v. McShan, 56 Miss. 413. And see Schroeder v. State, 41 Neb. 
 745, 60 N. W. 89; Hewitt v. Long, 76 111. 399. 
 
 *3 Chapsky v. Wood, 26 Kan. 650, 40 Am. Kep. 321 ; Washaw v. Glmble, 50 
 Ark. 351, 7 .S. W. 389 ; Wood v. Wood, 77 N. J. Eq. 593, 77 Atl. 91 ; People 
 V. Porter, 23 111. App. 196. The child's interests, of course, may require it 
 to be restored to the father in such a case. See Armstrong v. Stone, 9 
 <Jrat (Va.) 102. 
 
 44 U. S. V. .Green, 3 Mason, 482, Fed. Cas. No. 15,256 ; Mercein v. People, 25 
 Wend. (N. Y.) 64, 35 Am. Dec. 653 ; Waldron's Case, 13 Johns. (N. T.) 418; 
 Corrie v. Corrie, 42 Mich. 509, 4 N. W. 213; Ex parte Schumpert, 6 Rich. 
 <S. C.) 344 ; Bonnett v. Bonnett, 61 fltowa, 19», 16 N. W. 91, 47 Am. Rep. 
 810; State v. Stigall, 22 N. J. Law, 286; Bryan v. Lyon, 104 Ind. 227, 3 N. E. 
 880, 54 Am. Rep. 309 ; In re Smith, 13 111. 138 ; Gishwiler v. Dodez, 4 Ohio 
 St. 615; McShan v. McShan, 56 Miss. 413 ; Washaw v. Gimble, 50 Ark. 351, 
 7 S. W. 389 ; Gibbs v. Brown, 68 Ga. 803 ; Ex parte Murphy, 75 Ala. 409 ; 
 Brlnster v. Compton, 68 Ala. 299; Sturtevant v. State, 15 Neb. 439, 19 N. W. 
 617, 48 Am. Rep. 349. la Wood v. Wood, 77 N. J. Eq. 593, 77 Atl. 91, a girl 
 six years old had been placed by her father,- the mother consenting, in the 
 care of her aunts, to be brought up and educated by them. She had a good 
 iome, loving care and was brought up under much better conditions than it 
 was within the power of the parents to afford. The conduct of the parents 
 showed their confidence in the aunts and their belief that It was for the 
 <;hild's welfare to remain with them. The father died, leaving his family 
 In poor circumstances. The mother, while finding no fault with the aunts' 
 method of bringing up the child, attempted to regain custody, apparently to 
 
348 RIGHTS OP PARENTS AND OF CHILDREN (Ch. 10 
 
 "As to the question of the right of the father to have the custody 
 of his infant child, in a general sense it is true. But this is not on 
 account of any absolute right of the father, but for the benefit of the 
 infant; the law presuming it to be for its interest to be under the 
 nurture and care of his natural protector, both for maintenance and 
 education. When, therefore, the court is asked to lend its aid to 
 put the infant into the custody of the father, and to withdraw him 
 from other persons, it will look into all the circumstances, and as- 
 certain whethe r it will be for the real, permanent interest g f_the 
 infant; and, if the infant be of sufficient discretion, it will also c on- 
 sult its personal wishes. It will free it from all undue restraint, 
 a7Td"TiKieavor, as far as possible, to administer a conscientious, pa- 
 rental duty with reference to its welfare. It is an entire mistake to 
 suppose the court is at all events bound to deliver over the infant 
 to his father, or that the latter has an absolute vested right in the 
 custody." *° "When an infant child or minor is out of the posses- 
 sion and custody of the father, and habeas corpus is resorted to by 
 the latter to obtain such custody, it does not follow as necessary 
 matter of right that the prayer of the petition will be granted. The 
 court is clothed with a sound discretion to grant or refuse relief, 
 always to be exercised for the benefit of the infant primarily, but 
 'not arbitrarily in disregard of the father's natural right to be pre- 
 ferred. If the father be reasonably suitable, and able to maintain 
 and rear his child, his prayer should ordinarily be granted." *° 
 
 There may be cases in which the court, from a consideration of 
 the child's welfare, would not- award its custody to the father, even 
 though no fault or neglect of duty could be imputed to him. A 
 child of very tender years needs the care and attention of a mother, 
 and even were she to desert the father, without any fault on his 
 part, the child would not be taken from her, at least until it has 
 reached an age when the father can properly care for it.*' It can 
 
 make use of the cliild and to have her "rough it" at home with the younger 
 children. It was held that the child should remain in the custody of the 
 aunts. / 
 
 45 Per Story, J., in TJ. S. v. Green, 3 Mason, 482, Fed. Oas. No. 15,256. 
 
 *s Brinster v. Compton, 68 Ala. 299. 
 
 *7 In re Bort, 25 Kan. 308, 37 Am. Rep. 255; McKlm v. McKim, 12 R. I. 
 462, 34 Am. Rep. 694; Ex parte Schumpert, 6 Rich. (S. O.) 344; Com. v. 
 Addicts, 5 Bin. (Pa.) 520; Patterson V. Patterson, 86 Ark. 64, 109 S. W, 
 1168 ; Turner v. Turner, 93 Miss. 167, 46 South. 413 ; People es rel. Sinclair 
 V. Sinclair, 91 App. Div. 322, 86 N. Y. Supp. 539 (but see Id., 47 Misc. Rep. 
 230, 95 N. Y. Supp. ,861) ; State v. Paine, 4 Humph. (Tenn.) 523 ; State v. 
 
§§ 125-126) CUSTODY OP CHILDREN 349 
 
 only be in such cases as this, where the child, from its extreme 
 youth or sickness, needs a mother's care, that the court can deprive 
 the father of the right to j:he child's custody, where the father can 
 properly care for the child, and is in every way a fit person to have 
 the charge of it, and has not in any way neglected the child or relin- 
 quished his rights. This is true in contentions between father and 
 mother after they have separated, as well as in contentions between 
 the father and strangers.^** 
 
 (3) In arriving at a determination as to what is best for the wel- 
 fare and happiness of the child, the court will consider the ties of 
 nature and of association ; *° the character and feelings of the par- 
 ties contending for the custody;^" the age,^'- health, ^^ and sex of 
 the child; the moral or immoral surroundings of its life; the bene- 
 fits of education and development; and the pecuniary prospects.^' 
 All these csinsiderations enter into the judicial determination.^* 
 
 King, Ga. Dec. 93, pt. 1; Miner v. Miner, 11 III. 43; Anon., 55 Ala. 428; 
 Com. V. Demott, 64 Pa. 305, note; Chandler v. Chandler, 24 Mich. 176; Scog- 
 gins v. Scoggins 80 N. C. 318. But see Hewitt's Case, 11 Rich. (S. C.) 326; 
 Carr v. Oarr, 22 Grat. (Va.) 168. 
 
 48 See McKim v. McKim, 12 E. I. 462, 34 Am. Rep. 694; Com. v. Addicks, 
 2 Serg. & R. (Pa.) 174; Com. v. Briggs, 16 Kck. (Mass.) 203; Bennett v. Ben- 
 'nett, 43 Conn. 313; Scoggins v. Scoggins, 80 N. C. 318; Welch v. Welch, 33 
 Wis. 534 ; Carr v. Carr, 22 Grat (Va.) 168. Where a husband and wife have 
 separated because unable to agree, and there is no evidence that they are not 
 equally fit custodians of their son five years old, the father, by reason of his 
 paramount right in law, will be awarded such custody. People v. Sinclair, 
 47 Misc. Rep. 230, 95 N. T. Supp. 861. 
 
 48 Thus, where the father has allowed his child to be cared for and 
 raised by others until it has become attached to them, this fact will influence 
 the court in determining whether it will, after the lapse of years, give the 
 custody to the father. "It is an obvious fact that ties of blood weaken, and 
 ties of companionship strengthen, by lapse of time; and the prosperity and 
 welfare of the child depend on the number and strength of these ties, as well 
 as on the ability to do all which the promptings of these ties compel." Chap- 
 sky V. Wood, 26 Kan. 650, 40 Am. Rep. 321. And see Washaw v. Gimble, 50 
 Ark. 351, 7 S. W. 389 ; note 73, infra. 
 
 6 Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726; 
 Sheers v. Stein, 75 Wis. 44, 43 N. W. 728, 5 L. R. A. 781 ; Holmes' Case, 19 
 How. Prac. (N. Y.) 329. 
 
 SI Haskell v. Haskell, 152 Mass. 16, 24 N. E. 859; McKim v. McKim, 12 
 R. I. 462, 34 Am. Rep. 694; notes 47, supra, and 64, infra. 
 
 5 2 Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726; 
 McKim V. McKim, 12 R. I. 462, 34 Am. Rep. 694 ; HUSSEY v. WHITING, 145 
 Ind. 580, 44 N. E. 639, 57 Am. St. Rep. 220, Cooley Oas. Persons and Domestic 
 Relations, 186 ; Gardenhire v. Hinds, 1 Head (Tenn.) 402. 
 
 5 3 Armstrong v. Stone, 9 Grat. (Va.) 102; Lyons v. Blenkln, Jac. 245; Gar- 
 
 54 Marshall v. Reams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118. See 
 Slater v. Slater, 90 Va. 845, 20 S. B. 780. 
 
350 EIGHTS OF PARENTS AND OF CHILDKBN (Ch. 10 
 
 Where the child has reached the age of discretion, it will often be 
 allowed to make its own choice, and its wishes will always be taken 
 into consideration."' But the choice of the child is not a control- 
 ling consideration. Welfare controls choice, and the court will 
 not permit the choice of the child to lead it into an improper cus- 
 tody.^" In this connection the rights of parents and guardians 
 should also be respected, and such rights will not be disregarded by 
 the court to gratify the mere wishes of a child, when the parent or 
 guardian is a proper person to be intrusted with its custody."' 
 There is no fixed age when the discretion of a child begins, but 
 mental capacity is the test."^ 
 
 In Cases of Divorce 
 
 Though the court, in case of divorce, is inclined so to award the 
 custody of the children to the innocent party, °° it does not follow 
 as a matter of course that the complainant in the divorce suit is en- 
 titled to the custody of the infant children. "^ The question of the 
 custody of the children is one addressed to the sound discretion of 
 the court,"^ and there is no absolute rule by which it can be de- 
 termined which of the two contesting parties is entitled to the cus- 
 tody."" As in other cases, the general rule is that the best inter- 
 ests of the child will determine its custody."' If, for instance, the- 
 
 dfenhire v. Hinds, 1 Head (Tenn.) 402. But pecuniary benefit is not control- 
 ling. Dunkin v. Seifert, 123 Iowa, 64, 98 N. W. 558. 
 
 6 5 Marshall V. Keams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118; In 
 re Goodenough, 19 Wis. 274; TJ. S. v. Green, 3 Mason, 482, Fed. Gas. No. 
 15,256; State v. Bratton, 15 Am. Law Keg. (N. S.) 359; Clark v. Bayer, 32 
 Ohio St. 299, 30 Am. Rep. 593; Brinster v. Compton, 68 Ala. 299; Merritt v. 
 Swimley, 82 Va. 433, 3 Am. St. Rep. 115 ; State v. Paine, 4 Humph. (Tenn.) 
 523 ; Shaw v. Nachtwey, 48 Iowa, 653 ; Richards v. Collins, 45 N. J. Eq. 283, 
 17 Atl. 831, 14 Am. St. Rep. 726 ; Hewitt v. Long, 76 111. 399. 
 
 B« Marshall v. Reams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118. 
 
 6 7 Marshall v. Reams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118. " 
 
 6 8 Marshall v. Reams, 32 Fla. 499, 14 South. 95, 37 Am. St. Rep. 118; 
 Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726. 
 
 6 8 Caldwell V. Caldwell, 141 Iowa, 192, 119 N. W. 599. ' - 
 
 <io See Hazel ton v. Hazelton, 162 Mich. 192, 127 N. W. 297; Holm v Holm 
 44 Utah, 242, 139 Pac. 937. ' ' 
 
 61 Seeley V; Seeley, 30 App. D, O. 191, 12 Ann. Oas. 1058, certiorari de- 
 nied 209 V. S. 544, 28 Sup. Ot. 570, 52 L. Ed. 919 ; Slattery v. Slattery, 139 
 Iowa, 419, 116 N. W. 608 ; Royal v. Royal, 167 Ala. 510, 52 South. 735. 
 
 8 2 Kjellander v. Kjellander, 92 Kan. 42, 139 Pac. 1013. 
 
 es Adams v. Adams, 1 Duv. (Ky.) 167; Giles v. Giles, 30 Neb. 624, 46 N. 
 W. 916 ; Haskell v. Haskell, 152 Mass. 16, 24 N. B. 859 ; In re Bort, 25 Kan. 
 308, 37 Am. Rep. 255; Lusk v. Lusk, 28 Mo. 91 ; Welch v. Welch^ 33 Wisi, 
 534; Irwin v. Irwin, 96 Ky. 318, 28 S. W. 664, and 30 S. W. 417; Luck v. 
 
§§ 125-126) CUSTODY OP CHILDREN 351 
 
 \ child is of such tender years, or in such delicate health, that it needs 
 a mother's care, particularly if it is a girl, its custody will ordina- 
 rily be awarded to the mother, at least temporarily, even where the 
 husband is without fault."* And if one of the parties is an unfit 
 person to have the custody of the children, and the other is a fit 
 person, their custody will be awarded to the latter."" 
 
 The decree in a divorce suit does not permanently settle the right 
 to custody of children in awarding the custody to one of the parties. 
 A change of circumstances may authorize the court to order a 
 change of custody."" For instance, should the mother, to whom 
 the custody of a child is awarded on divorce, afterwards become an 
 unfit person to be intrusted with the child, the father, if a fit person, 
 might obtain the custody."^ So, where the spouse to whona the cus- 
 
 Xiuck, 92 Cal. 653, 28 Pae. 787; Beyerle v. Beyerle, 155 Gal. 266, 100 Pac. 
 702 ; Keesling v. Keesling, 42 Ind. App. 361, 85 N. E. 837 ; Wandersee v. Wan- 
 dersee, 182 Minn. 321, 156 N. W. 348 ; Pierce v. Pierce, 52 Wash. 679, 101 Pac. 
 358; Kentzler v. Kentzler, 3 Wash. 166, 28 Pac. 370, 28 Am. St. Rep. 21; 
 Umlauf V. Umlauf, 128 HI. 378, 21 N. B. 600 ; In re Krauthoff, 191 Mb. App. 
 149, 177 S. W. 1112; Cowls v. Cowls, 3 Oilman (111.) 435, 44 Am. Dec. 708. 
 When necessary to promote the welfare of the children, the court may take 
 them away from both parents and award the custody to a third person. 
 Collins V. Collins, 76 Kan. 93, 90 Pae. 809. 
 
 84 See the cases above cited. And see Messenger v. Messenger, 56 Mo. 329; 
 Lusk y. Lusk, 28 Mo. 91; Chandler v. Chandler, 24 Mich. 176; Klein v,. 
 Klein, 47 Mich. 518, 11 N. W. 367 ; Wann v. Wann, 85 Ark. 471, 108 S. W. 
 1052; Wills v. Wills, 168 Ky. 35, 181 S. W. 619; Boxa v. Boxa, 92 Neb. 78, 
 137 N. W. 986 ; Draper v. Draper, 68 111. 17. But see Carr v. Carr, 22 Grat. 
 (Va.) 168 ; Welch v. Welch, 33 Wis. 534. In Weiss v. Weiss, 174 Mich. 431, 
 140 N. W. 587, the court 'held that, even though the children were very young 
 and the mother a fit person, the custody should be awarded according to the 
 best Interests of the children. The wishes of the parents is of secondary 
 consideration, and even comparative fitness or unfitness is not controlling. 
 
 86 Irwin V. Irwin, 96 Ky. 318, 30 S. W. 417;Thiesing v. Thiesing, 26 S. W. 
 718, 16 Ky. Law Rep. 115 ; Flory v. Ostrom, 92 Mich. 622, 52 N. W. 1038 ; 
 Schichtl V. Schichtl, 88 Iowa, 210, 55 N. W. 309; Blid v. Blid, 82 Neb. 294, 
 117 N. W. 700; Penn v. Penn, 37 Okl. 650, 133 Pac. 207; Miner v. Miner, 11 
 111. 43; Cowls V. Cowls, .3 Gilman (111.) 435, 44 Am. Dec. 708; Umlauf v. 
 Umlauf, 128 111. 378, 21 N. E. 600. 
 
 88 Draper v. Draper, 68 111. 17; Oliver v. Oliver, 151 Mass. 349, 24 N. E. 
 51. Compare Wilkinson v. Deming, 80 111. 342, 22 Am. Rep. 192; Hayes v. 
 Hayes, 192 Ala. 280, 68 South. 351 ; Meffert v. MefCert, 118 Ark. 582, 177 S. 
 W. 1; McKay v. McKay, 77 Or. 14, 149 Pac. 1032; Beyerle v. Beyerle, 155 
 Cal. 266, 100 Pac. 702 ; Morrill v. Morrill, 83 Conn. 479, 77 Atl. 1 ; State ex 
 rel. Bush v. Trahan, 125 La. 312, 51 South. 216. To justify a Change of the 
 custody, there should be a material change in the circumstances, making it 
 equitable that different terms be imposed. Kinney v. Kinney, 150 Iowa, 225^ 
 129 N. W. 826 ; Julian v. Julian, 60 Ind. App. 520, 111 N. E. 196. 
 
 8 7 Morin v. Morin, 66 Wash. 312, 119 Pac. 745, 37 L. R. A. (N. S.) 585,. 
 where the mother became insane. 
 
352 RIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 tody is awarded, even though it may have been so awarded because 
 of the unfitness of the other, afterwards dies, the other may obtain 
 the custody, by showing that he has become fit for it, and that it 
 will be for the child's interest.'* 
 
 Agreement as to Custody of Child 
 
 Th e weight of authority seems tn he in favor of the position that 
 an agreement entered into by a father , for the relinquishment of his 
 right to the custody of his child, is void a s agains t public policy , 
 and will not even bi nd him." " "The care and custody o f minor ch il- 
 dren is a personal trust in the fatEer, and he has no general power 
 to dispose ot them to another." ' " iSuch an agreement, however, Is 
 not to be entirely ignore3. "It is to be considered, not for the pur- 
 pose of fixing the rights of the parties, but for the purpose of shed- 
 ding light upon their actual relations and feelings for the infant, 
 and assisting the exercise of a wise discretion by the court as u 
 what disposition should be made of it for the promotion of its own 
 welfare." '^ In other words, although the law does not countenance 
 
 «8 Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Kep. 309. And see 
 Schammel v. Schammel, 105 Cal. 258, 38 Pac. 729; Purdy v. Ernst, 93 Kan. 
 157, 143 Pac. 429. 
 
 6 9 Queen v. Smith, 22 Law J. Q. B. 116; In re Edwards, 42 Law J. Q. B. 
 99 ; Hernandez v. Thomas, 50 Fla. 522, 39 South. 641, 2 L. R. A. (N. S.) 203, 
 111 Am. St. Rep. 137, 7 Ann. Gas. 446 ; Cormack v. Marshall, 122 lU. App. 
 208 ; In re Galleher, 2 Gal. App. 364, 84 Pac. 352 ; Oarey v. Hertel, 37 WasTi. 
 27, 79 Pac. 482 ; Wood v. Shaw, 92 Kan. 70, 139 Pac. 1165 ; Marks v. Wooster 
 (Mo. App.) 199 S. W. 446; State v. Baldwin, 5 N. J. Eg. 454, 45 Am. Dec, 
 397; Ohapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321; Gook v. Bybee, 24 
 Tex. 278; Brooke v. Logan, 112 Ind. 183, 13 N.-E. 669, 2 Am. St. Rep. 177; 
 Stapleton v. Poynter, 111 Ky. 264, 62 S. W. 730, 53 L. R. A. 784, 98 Am. St- 
 .Rep. 411 ; Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389 ; State v. Libbey, 44 
 N. H. 321, 82 Am. Dec. 223. This principle prevents a father from making 
 an irrevocable agreement with his wife, on separation, by which he relin- 
 quishes to her the custody of their children. People v. Mercein, 3 Hill (N. 
 T.) 410, 38 Am. Dec. 644 ; Johnson v. Terry, 34 Conn. 259. Where the father 
 and mother are separated, the mother cannot by written agreement vest the 
 custody of the child in the maternal grandmother as against the father. Ma- 
 son V. Williams, 165 Ky. 331, 176 S. W. 1171. And, to the same effect, see 
 Long V. Smith (Tex. Civ. App.) 162 S. W. 25; Bailey v. Gaston, 8 Ala. App. 
 476, 62 South. 1017. In many states by statute the father cannot by agree- 
 ment transfer the custody to a third person as against the mother. See Zink 
 V. Milner, 39 Okl. 347, 135 Pac. 1, applying Gomp. Laws Okl. 1909, §4899. 
 See, also, Comp. Laws N. D. 1913, § 4424. An agreement for custody, being 
 revocable, is revoked on the death of the parent making it, if the other par- 
 ent survives. Smith v. Young, 136 Mo. App. 65, 117 S. W. 628, 
 
 70 State V. Baldwin, 5 N. J. Eq. 454, 45 Am. Dec. 397. 
 
 Ti Weir V. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672 
 
§§ 125-126) CUSTODY OF CHILDREN 353 
 
 agreements whereby a father seeks to transfer to another the cus- 
 tody of his child, such agreements, when carried out by the parties, 
 may have the indirect effect of preventing the father from reassert- 
 ing his right, the interests of the child in such cases being the con- 
 trolling consideration/^ 
 
 It has frequently been held that the custody of a child will not 
 be restored to a parent who has transferred its custody to another, 
 where the child, by being thus separated from him for years, has 
 transferred its interests and affections to its adopted home, and be- 
 come estranged from its parent, on the ground that it would be a 
 serious injury to the child to sever the ties that bind it to its adopt- 
 ed home and its adopted parents, and compel it to return. ''^ "After 
 the affections of both child and adopted parent become engaged, 
 and a state of things has arisen which cannot be altered without 
 risking the happiness of the child, and the father wants to reclaim 
 it, the better opinion is that he is not in a position to have the in- 
 terference of the court in his favor. His parental right must yield 
 to the feelings, interests, and rights of others acquired with his con- 
 sent." ■"■ 
 
 Some of the courts, contrary to the view above stated, have held 
 that a parent can, by agreement, surrender the custody of his infant 
 child so as to make the custody of him^'to whom he surrenders it le- 
 gal as against him.''° Even in these jurisdictions, however, a parent 
 
 72 Fletther v. Hickman, 50 W. Va. 244, 40 S. E. 371, 55 L. R. A. 896, 88 
 Am. St. Rep. 862. 
 
 IS Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A.- 672 ; Cliapsky v. 
 Wood, 26 Kan. 650, 40 Am. Rep. 321 ; Wasliaw v. Gimble, 50 Ark. 351, 7 S. W. 
 389- Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726; 
 Bently v. Terry, 59 -Ga. 555, 27 Am. Rep. 399 ; Merritt v. Swimley, 82 Va. 433, 
 3 Am. St. Rep. 115; BQpnett v. Bonnett, 61 Iowa, 199, 16 N. W. 91, 47 Am. 
 Rep. 810; Sheers v. Stein, 73 Wis. 44, 43 N. W. 728, 5 L. R. A. 781; Hoxsie 
 V. Potter, 16 R. I. 374, 17 Atl. 129 ; In re Murphy, 12 How. Prac. (N. Y.) 518 ; 
 Clark V. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593 ; Parker v, Wiggins (Tex. 
 Civ. App.) 86 S. W. 788. 
 
 7* Clark V. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593. 
 
 75 Bonnett v. Bonnett, 61 Iowa, 199, 16 JSf. W. 91, 47 Am. Rep. 810; Miller 
 V. Miller, 123 Iowa, 165, 98 N. W. 681. And see Plahn v. Dribred, 36 Tex. 
 Civ. App. 600, 83 S. W. 867 ; Bently v. Terry, 59 Ga. 555, 27 Am. Rep. 399 ; 
 Eaves v. Fears, 131 Ga. 820, 64 S. B. 269 ; Wilkinson v. Lee, 138 Ga. 360, 75 
 S. E. 477, 42 L. R. A. (N. S.) 1013 ; State v. Smith, 6 Greenl. (Me.) 463, 20 
 Am. Dec. 324; McDowle's Case, 8 Johns. (N. X.) 328; State v. Barrett, 45 
 N. H. 15 ; Curtis v. Curtis, 5 Gray (Mass.) 535 ; Dumain v. Gwynne, 10 Al- 
 len (Mass.) 270; Com. v. Barney, 4 Brewst. (Pa.) 409; In re Goodenough, 19 
 Wis. 274. 
 
 TIFP.P.& D.Rel.(3d Ed.)— 23 
 
354 EIGHTS OF PARENTS AND OF CHILDREN , (Ch. 10 
 
 / 
 
 cannot, by surrendering the custody of his child to another, prevent 
 the courts from changing the custody where the welfare of the 
 child'demands it/' 
 
 As has been shown in a previous chapter, statutes have been 
 enacted in most states by which parents may consent to the adop- 
 tion of their children by another. Here, of course, the legal adop- 
 tion is binding." So, as will be seen in a subsequent chapter, par- 
 ents may bind out their children as apprentices.'* 
 
 PARENT'S RIGHT TO CHILD'S SERVICES AND 
 EARNINGS 
 
 127. The father, and, by the weight of authority, the mother on his 
 death, is entitled to a minor child's services and earnings, 
 while the child lives with and is supported by them, and 
 has not been emancipated. When he has been emancipat- 
 ed, however, this right ceases, and with it, of course, all 
 rights which are dependent upon it. 
 
 So long as a minor child lives with or is supported by its parents, 
 and has not been emancipated,'" the father is entitled to its services 
 and earnings.*" The right to a child's services is generally said to 
 
 76 Bonnett v. Bonnett, 61 Iowa, 199, 16 N. W. 91, 47 Am. Rep. 810; Chap- 
 sky V. Wood, 26 Kan. 650, 40 Am. Rep. 321. 
 
 77 Ante, p. 310. 
 7 8 Post, p. 571. 
 
 7 9 As to the emancipation of children, see post, p. 358. 
 
 80 1 Bl. Oomm. 453; Benson v. Remington, 2 Mass. 113; Plummer v. Webb, 
 
 4 Mason, 380, Fed. Gas. No. 11,233; Gale v. Parrott, 1 N. H. 28; Shute v. 
 Dorr, 5 Wend. (N. Y.) 204; Lord v. Poor, 23 Me. 569; Magee v. Magee, 65 111. 
 255; Galllgan v. Woonsocket St. Ry. Co., 27 R. I. 363, 62 Atl. 376; Allen 
 V. Allen, 60 Mich. 635, 27 N. W. 702 ; Sweet v. Crane, 39 Okl. 248, 134 Pac. 
 1112 (applying Comp. Laws Okl. 1909, §§ 4899, 4911, 4912) ; Royal v. Grant, 
 
 5 Ga. App. 643, 63 S. E. 708 ; Kenure v. Brainerd & Armstrong Co., 88 Conn. 
 265, 91 Atl. 185; Fuller v. Blair, 104 Me. 469, 72 Atl. 182; Freeman v. 
 Shaw, 173 Mich. 262, 139 N. W. 66 ; Donk Bros. Coal & Coke Co. v. Retzloff, 
 229 111. 194, 82 N. E. 214; Southern Ry. Co. v. King Bros. & Co., 136 Ga. 
 173, 70 S. E. 1109; Oilman v. G. W. Dart Hardware Co., 42 Mont. 96, 111 
 Pac. 550. In an action by a minor for 'personal injuries, he cannot recover 
 for loss of wages during minority, unless it appears that the parent has 
 lost the right to his child's earnings. Orr v. Wahlfeld Mfg. Co., 179 111. 
 App. 235. If a minor, with his parent's consent, enlists in the army or 
 navy, the parent's right of control is suspended, and all pay, bounties, and 
 prize moneys belong to the minor, and not to the parent. Halliday v. Miller, 
 29 W. Va. 424, 1 S. E. 821, 6 Am. St. Rep. 653 ; Gapen t. Gapen, 41 W. Va. 
 
§ 127) parent's eight to child's services and earnings 355 
 
 be based on the parent's duty to support the child.'^ Thus it has 
 been said that the parent's right to the services and earnings of 
 his child is contingent on his actually providing support for the 
 child and retaining parental control over him, and if he ceases to 
 provide support, or voluntarily or by operation of law releases his 
 parental authority, his right to the child's services and earnings 
 ceases.*^ But the right is recognized even in those jurisdictions 
 where it is denied that there is any legal duty to support. What- 
 ever may be the foundation of this right of the parent, its existence 
 is well settled. There is some authority to the effect that the right 
 to a child's services and earnings does not vest in the mother, even 
 when the father has deserted her and the child, or is dead ; that the 
 mother, eVen under such circumstances ' as these, is entitled only 
 to reverence and respect, and has no authority over the child, or 
 right to its services.*' This, however, is a mistake, due perhaps, 
 to some extent, to following, without reason or other authority, 
 the dictum of Blackstone and other old writers and judges to that 
 effect, and to a failure to recognize the fact that there is no longer 
 any such principle or doctrine as the old feudal doctrine, "which, 
 requiring,. as it did, the abject subjection and servitude of the wife, 
 was unable to recognize the supremacy of the mother." '* By the 
 overwhelming weight of modern authority, a widowed mother is 
 entitled to the services and earnings of a minor child to the same 
 
 422, 23 S. E. 579 ; Taylor v. Mechanics' Sav. Bank, 97 Mass. 345 ; Banks v. 
 Conant, 14 Allen (Mass.) 497; Magee v. Magee, 65 111. 255 ; Oadwell v. Sher- 
 man, 45 111. 348 ; Baker v. Baker, 41 Vt. 55 ; Mears v. Bickford, 55 Me. 528. 
 Contra, Bundy v. Dodson, 28 Ind. 295 ; Ginn v. Ginn, 38 Ind. 526. 
 
 812 Kent, Comm. 193, Jenness v. Emerson, 15 N. H. 488; Wheeler v. 
 State, 51 Ind. App. 622, 100 N. E. 25; Doyle v. Carney, 190 N. T. 386, 88 N. 
 E. 37; Franklin v. Butcher, 144 Mo. App. 660, 129 S. W. 428; BIGGS v. ST. 
 LOUIS, I. M. & S. KY. CO., 91 Ark. 122, 120 S. W. 970, Oooley Cas. Persons 
 and Domestic Relations, 190. 
 ■ 82 Chaloux V. International Paper Co., 75 N. H. 281, 73 Atl. 801, 139 Am. 
 St. Rep. 690. In Canovar v. Cooper, 3 Barb. (N. Y.) 117, it was said by 
 Strong, P. J.: "The reason why parents are entitled to the services of their 
 minor children, usually giyen, is that which I have already mentioned — the 
 liability to support them. But, in my opinion, a. much stronger reason, and 
 one more consonant with the feelings and obligations of parent and child, 
 is that it gives the parent the control over the actions of his children, when 
 they are incapable of judging for themselves, and thus has a tendency to 
 save them from the effects of idleness or Imprudence." 
 
 SB Pray v. Gorham, 31 Me. 240 ; Com. v. Murray, 4 Bin. (Pa.) 487, 5 Am. 
 Dec. 412; Falrmount & A. St. Pass. Ry. Co. v. Stutler, 54 Pa. 375, 93 Am 
 Dec. 714. 
 
 8* Hammond v. Corbett, 50 N. H. 501, 9 Am. Rep. 288. 
 
356 EIGHTS OF PAEENTS AND OF CHILDEEN (Ch. 10 
 
 extent as the father would be if living.*^ The same rule applies 
 where a wife is deserted by her husband, or he is imprisoned, and 
 she is left to maintain her children, for the same reasons for the 
 rule apply in both cases.*" And generally a person who has defi- 
 nitely assumed to stand in loco parentis to a child is entitled to his 
 services.*' 
 
 Since a parent is thus entitled to the earnings of his minor child, 
 it follows that where he has not expressly, or impliedly emancipated 
 the child, or consented to its receiving and enjoying its own earn- 
 ings, as hereafter explained,'* he may maintain an action for the 
 child's wages against one who has employed the child, and the ac- 
 tion is properly brought in the jparent's name alone.*" It has been 
 held that the right to the child's services is personal to the parent, 
 like the right of custody, and cannot be assigned to another, as by 
 binding the child out at service.^" But there are 6ther decisions in 
 favor of allowing a parent to assig'n his child's services for a con- 
 sideration to inure to himself."^ 
 
 In the absence of emancipation, express or implied, a child cannot 
 make any contract with another to serve him which will be binding 
 
 85 Hammond v. Corbett, 50 N. H. 501, 9 Am. Rep. 288; Osborn v. Allen, 
 26 N. J. Law, 388 ; Matthewson v. Perry, 37 Conn. 435, 9 Am. Rep. 339 ; Scain- 
 ell V. St. Louis Transit Co., 103 Mo. App. 504, 77 S. W. 1021 ; Nightingale v. 
 Withington, 15 Mass. 272, 8 Am. Dec. 101 ; Horgan v. Pacific Mills, 158 Mass. 
 402, 33 N. E. 581, 35 Am. St. Rep. 504; Kennedy v. New York Cent. & H. 
 R. R. Co., 35 Hun (N. Y.) 186 ; Gray v. Durland, 50 Barb. (N. Y.) 100 ; Bal- 
 lard V. St. Albans Advertiser Co., 52 Vt. 325 ; HoUingsworth v. Swedenborg, 
 49 Ind. 378, 19 Am. Rep. 687; State v. Baltimore & O. R. Co., 24 Md. 84, 
 87 Am. Dec. 600 ; Cain v. Devitt, 8 Iowa, 116 ; Dufield v. Cross, 12 111. 397 ; 
 Snediker v. Everingham, 27 N. J. Law, 143; Campbell v. Campbell, 11 N. J. 
 Eq. 272 ; Franklin v. Butcher, 144 Mo. App. 660, 129 S. W. 428 ; Trinity Coun- 
 ty Lumber Co. v. Conner (Tex. Civ. App.) 187 S. W. 1022. 
 
 se See Wodell v. Coggeshall, 2 Mete. (Mass.) 89, 35 Am. Dec. 391; Chilson 
 V. Philips, 1 Vt. 41; Winslow v. State, 92 Ala. 78, 9 South. 728; Newton v. 
 Cooper, 13 Ga. App. 458, 79 S. E. 356; Briscoe v. Price, 275 111. 63, 113 N. 
 B. 881; Trinity County Lumber Co. v. Conner (Tex. Civ. App.) 187 S. W. 
 1022; Savannah, F. & W. Ry. Co. v. Smith, 93 Ga. 742, 21 S. E. 157. 
 
 8 7 Stone V. Pulsipher, 16 Vt. 428; Schrimpf v. Settegast, 36 Tex. 296. 
 
 88 Post, p. 358. 
 
 8 9 Shute V. Dorr, 5 Wend. (N. Y.) 204; Dufield v. Cross, 12 111. 397; Hol- 
 lingsworth v. Swedenborg, 49 Ind. 378, 19 Am. Rep. 687; Monaghan v School 
 Dist., 38 Wis. 100. 
 
 00 Musgrove v. Kornegay, 62 N. C. 71 (collecting cases) ; U. S. v. Bain- 
 bridge, 1 Mason, 71, Fed. Cas. No. 14,497. 
 
 »i Day V. Everett, 7 Mass. 145; State v. Barrett, 45 N. H. 15; Johnson v. 
 Bicknell, 23 Me. 154; Ford v. McVay, 55 111. 119. 
 
§ 127) parent's bight to child's services and babninqs 357 
 
 on the father; nor can he give a valid discharge for his wages. One 
 who, under such circumstances, pays a minor for services, or for in- 
 juries resulting in loss of service, does so at his peril; and, if the 
 father has not relinquished his right to guch services, the payment 
 will be no defense in an action by the father."^ But where the 
 father allows his minor son to work for another and receive his 
 wages, the payment to the son is a good payment until the agree- 
 ment is rescinded."' The same principle applies where an appren- 
 tice is employed without his master's consent."* The father, where 
 his child is employed without his consent, may ratify the contract 
 made with the child, and recover under it ; or he may repudiate it, 
 and recover the value of the services."^ 
 
 Since the earnings of a minor unemancipated child belong, to the 
 father, they may be reached by the father's creditors, and subjected 
 to the payment of their claims, just like any other property.'" And 
 the same is true of property purchased with the child's earnings 
 It was held in a late Texas case, for instance, that land bought by 
 a mother with the wages given her by her son, who was not eman- 
 cipated, was subject to the claims of the father's creditors."^ • 
 
 When a child is emancipated — that is, when he is released from 
 parental control, either by the consent of the parent or by operation 
 of law, including cases in which he is deserted — the parent's right 
 to the child's services and earnings ceases, and with it, of course, 
 all rights, duties, and liabilities which are dependent upon its ex- 
 istence also cease."' 
 
 92 White T. Henry, 24 Me. 531; Weeks v. Holmes, 12 Gush. (Mass.) 215; 
 Horgan v. Pacific Mills, 158 Mass. 402, 33 N. E. 581, 35 Am. St. Rep. 504; 
 Sherlock v. Kimmell, 75 Mo. 77 ; Dunn v. Altman, 50 Mo. App. 231. 
 
 93 Daniel v. Atlantic Coast Line R. Co., 171 N. C. 23, 86 S. E. 174. And 
 see Ping Min. & Mill. Co. v. Grant, 68 Kan. 732, 75 Pac. 1044, construing 
 the Kansas statute (Gen. St. 1901, § 4185). Under Domestic Relations Law 
 (Consol. Laws, N. Y. c. 14) § 72, in the absence of notice from the parent, a; 
 payment of wa^es to the minor is a good payment. Danger v. Kaufman, 94 
 Misc. Rep. 216, 157 N. T. Supp. 825. And see Oomp. Laws N. D. 1913, § 4437. 
 
 9^ James v. Leroy, 6 Johns. (N. Y.) 274 ; Bowes v. Tibbets, 7 Me. (Greenl.) 
 457 ; Munsey v. Goodwin, 3 N. H. 272. 
 
 95 Sherlock v. Kimmell, 75 Mo. 77. 
 
 9eAtwood V. Holcomb, 39 Conn. 270, 12 Am. Rep. 386; Harper v. Utspy 
 (Tex. Civ. App.) 97 S. W. 508 ; Beaver v. Bare, 104 Pa. 58, 49 Am. Rep. 567 ; 
 Dick V. Grissom, Fpeem. Ch. (Miss.) 428 ; Doe v. Reld, 53 N. C. 377 ; Schuster 
 V. Bauman Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. Rep. 327. 
 
 9 7 Schuster v. Bauman Jewelry Co., 79 Tex. 179, 15 S. W. 259, 23 Am. St. 
 Rep. 327. 
 
 9 8 Post, p. 398. Winslow v. State, 92 Ala. 78, 9 South. 728; Southern Ry. 
 Co. v. nemister, 120 6a. 524, 48 S. E. 160. 
 
358 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 EMANCIPATION OF CHILDREN 
 
 128. A child may be released from parental control, and become 
 
 entitled to his earnings, in which event he is said to be 
 emancipated. 
 
 129. Emancipation may be effected 
 
 (a) By the consent of the parent, evidenced by written or oral 
 
 agreement, or gathered from the circumstances. 
 
 (b) By operation of law — 
 
 (1) Where the parent abandons or fails to support the child. 
 
 (2) Where the child contracts a valid marriage, either with 
 
 or without the parent's consent. 
 
 (3) Where the child attains his majority, which is at 21 
 
 years, or, in some jurisdictions, in the case of females, 
 18 years. 
 
 (c) A parent who, by his conduct, leads an employer of a child 
 
 to believe that the child has a right to his earnings, and to 
 pay the child, is concluded by the payment, on the, equita- 
 ble principle of estoppel. 
 
 130. The emancipation, if without consideration, may be revoked 
 
 before it is acted upon by the child, but not afterwards. If 
 supported by a valuable consideration, or, at common law, 
 if it is under seal, it cannot be revoked. 
 
 131. Emancipation, as regards fjiture services and earnings, is valid 
 
 as against creditors of the parent. 
 
 A child may be released from parental control, and become en- 
 titled to his earnings, or, in other words, he may become emancipat- 
 ed, either by the consent of his parent, or by operation of law with- 
 out such consent."® The etfect of emancipation is to deprive the 
 parent of all power of control over the child, so long as the eman- 
 
 8 8 Emancipation, used in a technical sense, means the freeing of the child 
 from all care, custody, and control, and from all claim of services. Wahash 
 R. Co. V. McDoniels, 183 Ind. 104, 107 N. E. 291. Emancipation of the child 
 is the relinquishment by the parent of all control and authority over the 
 child, conferring on the child the right to his earnings, and extinguishing the 
 parent's legal duty to maintain- and support the child. ROUNDS BROS. v. 
 McDANIEL, 133 Ky. 669, 118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326, 
 Cooley Cas. Persons and Domestic Relations, 193. A parent who has emanci- 
 pated his child is not liable to a third person for board of the child. Holland 
 V. Hartley, 171 N. O. 376, 88 S. E. 507. 
 
§§ 12S-131) EMANCIPATION OP CHILDREN 359 
 
 cipation continues. The child becomes entitled to his time and his 
 earnings, and to property purchased with his earnings, free from 
 any claims of his parent, or of his parent's creditors,^ and, on his 
 death, his earnings pass to his administrator.- 
 
 Not only may a parent emancipate his child, so as to entitle it to 
 receive its earnings from third persons, but "emancipation may be 
 implied even when the minor resides at home and works for his 
 father, from a promise on the part of the father to pay him for his 
 services during his minority, so that the minor may maintain an 
 action against the father even for such services." ^ Because of the 
 relation, the presumption is against any such contract, and the 
 child nlust show afifirmatively that there was an understanding that 
 compensation should be paid. 
 How Emancipation may he Effected — B'y Consent of Parent 
 
 Emancipation may be effected by the consent of the parent, or it 
 may be effected by operation of law without his consent. The 
 clearest case of emancipation by consent is where the child can 
 show an express written or oral agreement with the parent.* Here 
 
 1 Atwood V. Holcomb, 39 Conn. 270, 12 Am. Kep. 386 ; Shute v. Dorr, 5 
 Wend. (N. Y.) 204; Burlingame v. Burlingame, 7 Cow. (N. Y.) 92; Kain v. 
 Larkin, 131 N. Y. 300, 30 N. E. 105 ; Woodward v. Donnell, 146 Mo. App. 119, 
 123 S. W. 1004 ; Kevel v. Pruitt, 42 Okl. 696, 142 Pac. 1019 ; Kenure v. Braln- 
 erd & Armstrong Co., 88 Conn. 265, 91 Atl. 185 ; Torrens v. Campbell, 74 Pa. 
 470 ; Beaver v. Bare, 104 Pa. 58, 49 Am. Rep. 567 ; Partridge v. Arnold, 73 
 III. 600; Snediker v. Everingham, 27 N. J. Law, 143; Trapnell v. Conklyn, 
 37 W. Va. 242, 16 S. E. 570, 38 Am. St. Rep. 80; Gale v. Parrot, 1 N. H. 28; 
 Hall V. Hall, 44 N. H. 293 ; Jenney v. Alden, 12 Mass. 375 ; Nightingale v. 
 Withington, 15 Mass. 272, 8 Am. Dec. 101 ; Wilting v. Earle, 3 Pick. (Mass.) 
 201, 15 Am. Dec. 207 ; Morse v. Walton, 6 Conn. 547, 16 Am. Dec. 73 ; Chase 
 V. Elklns, 2 Vt. 290; Vamey v. Young, 11 Vt. 258; Tillotson.v. McCrillis, 
 Id. 477; Wilson v. McMillan, 62 Ga. 16, 35 Am. Hep. 115; Wambold v. Vick, 
 50 Wis. 456, 7 N. W. 438. 
 
 2 Smith V. Knowlton, 11 N. H. 191 ; Dierker v. Hess, 54 Mo. 246. 
 
 3 Wood, Mast. & Serv. § 25 ; Wilson v. McMillan, 62 Ga. 16, 35 Am. Rep. 
 115 ; Hall V. Hall, 44 N. H. 293 ; Beaver v. Bare, 104 Pa. 58, 49 Am. Rep. 
 567; McCloskey v. Cyphert, 27 Pa. 220; Steel v. Steel, 12 Pa. 64; Dierker 
 V. Hess, 54 Mo. 246; Donegan v. Davis, 66 Ala. 362; Sword v. Keith, 31 
 Mich. 247; Sammon v. Wood, 107 Mich. 506, 65 N. W. 529. 
 
 * Bristor v. Chicago & N. W. Ry. Co., 128 Iowa, 479, 104 N. W. 487 ; Broslus 
 V. Barker, 154 Mo. App. 657, 136 S. W. 18; ROUNDS BROS. v. McDANIBL, 
 133 Ky. 669, 118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 826, Cooley Cas. 
 Persons and Domestic Relations, 193 ; Abbott v. Converse, 4 Allen (Mass.) 530 ; 
 Fox V. Schumann, 191 Mich. 831, 158 N. W. 168; Holland v. Hartley, 171 
 N. C. 376, 88 S. E. 507. Emancipation is express, if with the consent of the 
 parent disabilities are removed by the court, imder Kirby's Dig. Ark. § 1309, 
 or by contract for valuable consideration. In re Riff (D. C.) 205 Fed. 406. On 
 
360 EIGHTS OF PARENTS AND OF CHILDKBN (Ch. 10 
 
 there can be no difficulty. Emancipation by consent may also, like 
 any other agreement, be implied as a matter of fact from the con- 
 duct of the parties."* No particular act or ceremony is necessary 
 to constitute emancipation. It may be established by direct evi- 
 dence, or implied from circumstances ; and it may, as has already 
 been seen," be implied as well when the child continues to reside 
 at home as when he liv&s elsewhere. Like any other fact, its exist- 
 ence or nonexistence is to be determined by all the circumstances of 
 the particular case.' 
 
 Same — By Operation of Law 
 
 Emancipation may also be effected by operation of law, and even 
 against the will of the parent. It is so effected by the valid mar- 
 riage of the child.* So, where a child reaches his majority, the par- 
 
 the death of the father, the mother may emancipate the child. Campbell v. 
 Campbell, 11 N. J. Bq. 268. An oral agreement may, of course, be unenforce- 
 able, because within the statute of frauds. Shute v. Dorr, 5 Wend. (N. Y.) 204. 
 
 5 Hall V. Hall, 44 N. H. 293 ; Atwood v. Holcomb, 39 Conn. 270, 12 Am. 
 Eep. 386; Chase v. Smith, 5 Vt. 556; Kain v. Larkin,,131 N. Y. 300, 30 N. 
 E. 106; Abbott v. Converse, 4 Allen (Mass.) 530; George Adams & Burke 
 Co. V. Cook, 82 Neb. 684, 118 N. W. 662 ; Fox v. Schumann, 191 Mich. 331, 
 158 N. "W. 168 ; Merithew v. Ellis, 116 Me. 468, 102 Atl. 301, 2 A. L. B. 1429 ; 
 Longhof er v. Herbal, 83 Kan. 278, 111 Pac. 483 ; Brosius v. Barker, 154 Mo. 
 App. 657, 136 S. W. 18; BOUNDS BROS. v. McDANIEL, 133 Ky. 669, 118 S. 
 W. 956, 134 Am. St. Rep. 482, 19 Ann. Gas. 326, Oooley Cas. Persons and Do- 
 mestic Relations, 193 ; Donk Bros. Coal & Coke Co. v. RetzlofC, 229 lU. 194, 82 
 N. E. 214; Weese v. Yokum, 62 W. Va. 550, 59 S. E. 514. 
 
 8 Supra, note, 3. 
 
 7 Canovar v. Cooper, 3 Barb. (N. Y.) 115 ; Shute v. Dorr, 5 Wend. (N. Y.) 
 204 ; Whiting v. Earle, 3 Pick. (Mass.) 201, 15 Am. Dec. 207 ; Inhabitants of 
 Dennysville v. Inhabitants of Trescott, 30 Me. 470 ; Inhabitants of West Gar- 
 diner V. Inhabitants of Manchester, 72 Me. 509 ; Penn v. Whitehead, 17 Grat. 
 (Va.) 503, 94 Am. Dec. 478 ; Lewis v. Missouri, K. & T. Ry. Co., 82 Kan. 351, 
 108 Pac. 95'; Johnson v. Silsbee, 49 N. H. 543 ; Beaver v. Bare, 104 Pa. 58, 
 49 Am. Rep. 567; Donegan v. Davis, 66 Ala. 362; Haugh Ketcham & Co. 
 Iron Works v. Duncan, 2 Ind. App. 264, 28 N. E. 334; Everett v. Sherfey, 1 
 Iowa, 357; Schoenberg v. "Voigt, 36 Mich. 310. 
 
 s Aldrich v. Bennett, 63 N. H. 415, 56 Am. Rep. 529 ; Vanatta v. Carr, 229 
 111. 47, 82 N. E. 267; Dick v. Grissom, Freem. Ch. (Miss.) 428; Town of 
 Northfleld v. Town of Brookfield, 50 Vt. 62; Inhabitants of Taunton v. In- 
 habitants of Plymouth, 15 Mass. 203; Com. v. Graham, 157 Mass. 73, 31 N. 
 E. 708, 16 L. R. A. 578, 34 Am. St. Rep. 255 ; STATE EX REL. "SCOTT v. 
 LOWELL, 78 Minn. 166, 80 N. W. 877,- 46 L. R. A. 440, 79 Am. St. Rep. 358, 
 Cooley Cas. Persons and Domestic Relations, 22 ; Town of Craftsbury v. 
 Town of Greensboro, 66 Vt. 585, 29 Atl. 1024. The fact that the marriage is 
 against the parent's will can make no difference, if the marriage is valid. 
 Aldrich v. Bennett, supra ; Com. v. Graham, supra ; Cochran v. Cochran, 196 
 N. Y. 86, 89 N. B. 470, 24 L. R. A. (N. S.) 160, 17 Ann. Cas. 782. But see 
 
§§ 128-131) EMANCIPATION OF CHILDEEN 361 
 
 ent's rights over him, and to his services and earnings, cease, and 
 the child is emancipated by operation of law.° At common law, 
 the age of majority is 21 years for both sexes, but, by statute, in 
 some jurisdictions a female reaches her majority at 18. 
 
 It is said that emancipation will be inferred from the wrongful 
 conduct of a parent indicating a renunciation of the parental re- 
 lation, as when he abandons or forces his child to leave him, or 
 neglects to support him, so that it is necessary for the child to sup- 
 port himself. It is better, however, to class emancipation thus ef- 
 fected as emancipation by operation of law ; for willingness of the 
 parent, under such circumstances, is altogether immaterial. The 
 law emancipates the child. A parent is only entitled to the serv- 
 ices and earnings of his child while the child is supported by him. 
 "Although the general principle is clear and unquestioned that the 
 father is entitled to the services of his minor child, and to all that 
 such child earns by his labor, yet it seems to be equally clear that, 
 as the right of the father to the services of the child is founded 
 vtpon his duty to support and maintain his child, if he should fail, 
 neglect, or refuse to observe and perform this duty, his right to the 
 services of his child should cease to exist ; and such we hold to be 
 
 ^the law." ^" It has therefore been held that, where a widow marries 
 again, she cannot recover the wages due her daughter by her first 
 husband, who does not live with her, and is not supported by her.'^^ 
 And the rule is well settled "that if the father abandons the child, 
 
 _ and leaves him to provide for himself, the child becomes entitled 
 to his earnings as a means of support, and the father has no claim 
 upon them." ^^ "As the father may forfeit his right to the custody 
 
 White V. Henry, 24 Me. 531; Austin v. Austin, 167 Mich. 164, 132 N. W. 495, 
 Ann. Cas. 1913A, 545. 
 
 9 Town of Poultney v. Town of Glover, 23 Vt. 328 ; Brown v. Ramsay, 29 
 N. J. Law, 117; Mercer v. Jackson, 54 111. 397. \ 
 
 lOFarrell v. Farrell, 3 Houst. (Del.) 633. And see Hollingsworth v. Swe- 
 denborg, 49 Ind. 378, 19 Am. Kep. 687 ; Inhabitants of Wells v. Inhabitants of 
 Kennebunk, 8 Greenl. (Me.) 200 ; In re Rife (D. 0.) 205 Fed. 406 ; P. J. Huny- 
 cutt & Co. V. Thompson, 159 N. G. 29, 74 S. E. 628, 40 L. R. A. (N. S.) 488, 
 Ann. Cas. 1913E, 928 ; Smith v. Gilbert, 80 Ark. 525, 98 S. W. 115, 8 L. R. 
 A. (N. S.) 1098; ROUNDS BROS. v. MeDANIEL, i33 Ky. 669, 118 S. W. 956, 
 134 Am. St. Rep. 482, 19 Ann. Cas. 326, Oooley Cas. Persons and Domestic Re- 
 lations, 193; Chaloux t. International Paper Co., 75 N. H. 281, 73 Atl. 301 
 139 Am. St. Rep. 690. 
 
 11 Hollingsworth v. Swedenborg, 49 Ind. 378, 19 Am. Rep. 687. And see In- 
 habitants of St. George v. Inhabitants of Deer Isle, 3 Greenl. (Me.) 390. 
 
 12 Atwood V. Holcomb, 39 Conn. 270, 12 Am. Rep. 386. See, also, Smith v. 
 Gilbert, 80 Ark. 525, 98 S. W. 115, 8 L. R. A. (N. S.) 1098; Swift & Co. v. 
 
362 RIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 and control of his child's person by abusing his power so, by neg- 
 lecting to fulfill the obligations of a father, he may forfeit his right 
 to the fruit of his child's labor. If he provides no home for his pro- 
 tection, if he neither feeds nor clothes him, nor ministers to his 
 v^ants in sickness or health, it would be a most harsh and unnatural 
 law which authorized the father to appropriate to himself all the 
 child's earnings. It would be recognizing in fathers something like 
 that preeminent and sovereign authority which has never been ad- 
 mitted by the jurisprudence of any civilized people, except that of 
 ancient Rome, whose law held children to be the property of the 
 father, and placed them, in relation to him, in the category of things 
 instead of that of persons." ^* 
 
 Same— Estoppel of Parent 
 
 If a parent, by his conduct, leads others to reasonably believe that 
 he has emancipated his child, and such others act upon this belief, 
 the parent will be estopped to deny emancipation to their prejudice, 
 though there has been no emancipation either in fact or in law. If, 
 for instance, a child makes a contract, on his own account, to serve 
 another, and the father knows of it, and makes no objection, tTie 
 other party to the contract may safely pay the child his earnings, 
 and the payment will 'bar a claim to such earnings by the father.^* 
 
 Johuson, 138 Fed. 867, 71 0. C. A. 619, 1 t,. R. A. (N. S.) 1161; Wodell v. 
 CSoggeshall, 2 Mete. (Mass.) 89, 35 Am. Dec. 391; Chilson v. Philips, 1 Vt. 
 41 ; Cloud V. Hamilton, 11 Humph. (Tenn.) 104, 53 Am. Dec. "78 ; Gulf Coop- 
 erage Co. V. Abernathy, 54 Tex. Civ. App. 137, 116 S. W. 869 ; Nightingale v. 
 Withington, 15 Mass. 275, 8 Am. Dec. 101 ; Ream v. Watklns, 27 Mo. 516, 72 
 Am. Dec. 283 ; Canovar v. Cooper, 3 Barb. (N. T.) 115 ; The Etna, 1 Ware, 
 474, Fed. Cas. No. 4,542; Stansbury v. Bertron, 7 Watts & S. (Pa.) 362; MC- 
 CARTHY V. RAILROAD CORP., 148 Mass. 550, 20 N. E. 182, 2 L. R. A. 608, 
 Cooley Cas. Persons and Domestic Relations, 200 ; Liberty v. Palermo, 79 Me. 
 473, 10 AU. 455 ; Brown v. Ramsay, 29 N. J. Law, 117 ; Loy v. Loy, 128 Ind. 
 150, 27 N. E. 351 ; Clay v. Shirley, 65 N. H. 644, 23 Atl. 521. 
 
 13 The Etna, 1 Ware, 474, Fed. Cas. No. 4,542. 
 
 14 Whiting V. Earle, 3 Pick. (Mass.) 201, 15 Am. Dec. 207; Vance v. Cal- 
 houn, 77 Ark. 35, 90 S. W. 619, 113 Am. St. Rep. Ill ; Culberson v. Alabama 
 Const. Co., 127 Ga. 599, 56 S. B. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507 ; 
 Mprrill v. Hussey, 101 Me. 439, 64 Atl. 819 ; McMorrow v. Dowell, 116 Mo. 
 App. 289, 90 S. W. 728; Atkins v. Sherbino, 58 Vt. 248, 4 Atl. 703; Nixon 
 V. Spencer, 16 Iowa, 214; Armstrong v. McDonald, 10, Barb. (N. Y.) 300; 
 Smith V. Smith, 30 Oonn. Ill; Schoonover v. Sparrow, 38 Minn. 393, 37 N. 
 W. 949; In re Riff (D. C.) 205 Fed. 406; Ingram v. Southern Ry. Co., 152 N. 
 C. 762, 67 S. B. 926; Lowrie v. Oxendine, 153 N. O. 267, 69 S. E. 131; Dan- 
 iel V. Atlantic Coast Line R. Co., 171 N. C. 23, 86 S. B. 174; Giovagnioli v. 
 Ft. Orange Const. Co., 148 App. Div. 489, 133 N. T. Supp. 92. See, also, Ping 
 Min. & Mill. Co. V. Grant, 68 Kan. 732, 75 Pac. 1044, applying Gen. St. Kan. 
 
§§ 128-131) EMANCIPATION OP OHILDBEN 363 
 
 There is no necessity to ask whether there has been an emancipa- 
 tion in fact.'^ It is sufficient to apply the equitable jirinciple that 
 "where one voluntarily, by his' words or conduct, causes another to 
 believe the existence of a certain state of things, and induces him 
 to act on that belief, so as to alter his own previous position for 
 the worse, the former is concluded from averring against the latter 
 a different state of things as existing at the same time." ^* Such 
 conduct does not necessarily conclude the parent as against the 
 child, nor would it prevent him, in the absence of an emancipation 
 in fact, from claiming the wages before payment, and thereby ren- 
 dering the employer liable to him.^^ While the fact that the child 
 received his wages for his own use does not conclusively show 
 emancipation,^^ acquiescence by the father in the child's contract- 
 ing on his own account, and receiving and using his wages, would 
 be evidence from which the jury might infer emancipation in fact.^^ 
 
 Consideration — Revocation 
 
 The relinquishment by a parent of his right to the services and 
 earnings of his child is valid as a gift, and, as between the parties, 
 it requires no consideration. When a child performs labor for his 
 parent, under an agreement that he shall be compensated therefor 
 by the parent, or performs labor for another under an agreement 
 with the parent that he (the child) shall own what h^ receives, 
 the parent will be bound by the agreement, though there is no con- 
 sideration for the relinquishment of his rights.^" "The cases re- 
 ferred to establish the doctrine that it (the right to the child's 
 services) may be transferred to the minor. It is to be regarded as 
 being in the nature of property, and, as a minor may hold other 
 property independently of his father, there seems to be no valid 
 
 1901, § 4185; Longer V. Kaufman, 94 Misc. Rep. 216, 157 N. T. Supp. 825, 
 applying Domestic Relations I/aw (Consol. Laws N. Y. c. 14) § 72. See Oomp. "^ 
 Laws N. D. 1913, § 4437. 
 
 IB Atkins V. Sherbino, 58 Vt. 248, 4 Atl. 703. 
 
 18 Fetter, Bq. 45. 
 
 " Atkins V. Sherbino, 58 Vt. 248, 4 Atl. 703. 
 
 18 Wallace v. Cox, 136 Tenn. 69, 188 S. W. 611, L. R. A. 1917B, 690. 
 
 isLackman v. Wood, 25 Cal. 147; Scott v. Wblte, 71 111. 287. 
 
 20 Fort V. Gopding, 9 Barb. (N. T.) 371 ; Stanley v. National Union Bank, 
 115 N. Y. 122, 22 N. JB. 29; Atwood y. Holcomb, 39 Oonn. 270, 12 Am. Rep. 
 386; Chase v. Smith, 5 Vt. 556; Abbott v. Converse, 4 Allen (Mass.) 530; 
 Shnte V. Dorr, 5 Wend. (N. T.) 204; ROUNDS BROS. y. McDANIEL, 133 Ky. 
 • 669, 118 S. W. 956, 134 Am. St. Rep. 482, 19 Ann. Cas. 326, Oooley Cas. Persons 
 and Domestic Relations, 193;, Gale v. Parrot, 1 N. H. 28; Mprse v. Welton, 
 6 Conn. 547, 16 Am. Dec. 73 ; Snediker v. Everingliam, 27 N. J. Law, 143. 
 
364 RIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 reason why he may not thus hold the right to his own time and 
 earnings. * * * As it may be held by gift or licens?, there 
 is no reason why the gift, when accepted, should be any more revo- 
 cable, without the consent of the donee, than other gifts." ^^ 
 
 If the emancipation is without consideration, however, it may be 
 revoked at any time before it is acted upon, and from the time of 
 revocation the parent is restored to his original rights. ^^ It is a 
 mere gift or license, and, like any other gift or license, it may be re- 
 voked at any time before it is accepted, and acceptance is acting up- 
 on it. "A gift is not binding on the donor until accepted; and 
 the acceptance of a gift of this character must be by acting upon it. 
 Until it is acted upon; it must, from the nature of the case, be revo- 
 cable." ^' 
 
 If the relinquishment of his rights by the parent is supported by 
 a valuable consideration, or at common law at least, if his agree- 
 ment is under seal, he cannot, revoke. "As he [the minor] may hold 
 it [his time and right to earnings] by a contract with his father 
 under seal, or for a valuable consideration, there is no more reason 
 for holding that the father may revoke this contract at his pleasure 
 ,than any other contract. On principle, he should be as fully bound 
 by it as by a conveyance of land or other property to his child." ^* 
 
 Rights of Parenf^ Creditors 
 
 The emancipation of a child, and relinquishment by the parent 
 of his right to the future services and earnings of the child, is per- 
 fectly valid as against the parent's creditors, even though the parent 
 may be insolvent, and even though the intention is to prevent the 
 creditors from enforcing their claims against such earnings, or prop- 
 erty purchased with them.^° And this is true though the child re- 
 
 21 Abbott V. Converse, 4 Allen (Mass.) 530. 
 
 22Abbott_ V. Converse, 4 Allen (Mass.) 530; Dickinson v. Talmage, 138 
 Mass. 249; "Everett v. Sherfey, 1 Iowa, 356 ; Soldanels v. Missouri Pac. Eail- 
 way Co., 23 Mo. App. 516 ; Clark v. Fitcb, 2 Wend (N. Y.) 459, 20 Am. Dec. 
 639; Cbase v. Elkins, 2 Vt. 290; Stovall v. Johnson, 17 Ala. 19; Hood & 
 Johnson v. Pelham, Sitz & Co., 3 Ala. App. 471, 59 South. 767; In re Kiff 
 (D. C.) 205 Fed. 406; BIGGS v. ST. LOUIS, I. M. & S. RY. CO., 91 Ark. 122, 
 120 S. W. 970, Cooley Cas. Persons and Domestic Relations, 190; but see 
 ROUND BROS. v. McDANIBL, 133 Ky. 669, 118 S. W, 956, 134 Am. St. Rep. 
 482, 19 Ann. Cas. 326, Cooley Cas. Persons and Domestic Relations, 193, where 
 it was held that the father lost his right to revoke by delay. 
 
 23 Abbott V. Converse, 4 Allen (Mass.) 530. 
 
 24 Abbott V. Converse, 4 Allen (Mass.) 680. 
 
 2 6 Wilson v. McMillan, 62 Ga. 16, 35 Am. Rep. 115 ; Atwood v. Holcomb, 39 
 Conn. 270, 12 Am. Rep. 386; Manchester v. Smith, 12 Pick. (Mass.) 113; 
 
§§ 132-134) ACTION BY PARENT FOB INJURIES TO CHILD . 365 
 
 mains at home, and is hired by the parent.'"' As was said by the 
 North Carolina court: "A creditor cannot make his debtor work 
 in order to pay the debt, nor can he force him to make his children 
 work, or sell under execution the valuable interest which a father 
 has in the services of the child." ^^ And, as was said by the Penn- 
 sylvania court, a father "is not bound to work his son or daughter 
 as he would work a horse or slave for the benefit of his creditors." "'^ 
 If, however, such an arrangement is merely colorable, and the par- 
 ent is in fact still to have the benefit of the wages, the transaction 
 is fraudulent and void as against creditors.^ ^ And, where the 
 wages are already earned, the gift of them would be subject to tTie 
 general rules governing voluntary conveyances.^" 
 
 ACTION BY PARENT FOR INJURIES TO CHILD 
 
 132. When a child is injured by the wrongful act or omission of a 
 
 person, the father, or any other person standing in loco pa- 
 rentis, may maintain an action against the wrongdoer to 
 recover for the resulting loss of service and incidental ex- 
 penditures. 
 
 133. The rules as to the necessity of showing the relationship of 
 
 master and servant between the parent and child to entitle 
 
 the parent to sue may be thus stated : 
 (a) To recover for loss of service, the right to the child's serv^ 
 ices, and therefore the relationship of master and serv- 
 ant, actual or constructive, must be ^own.. The re- 
 lationship exists constructively if there is a right to 
 service. Therefore — 
 
 Wambold v. Vick, 50 Wis. 456, 7 N. "W. 438; Lord v. Poor, 23 Me. 569 ; Trai>- 
 nell V. Conklyn, 37 W. Va. 242, 16 S. B. 570, 38 Am. St. Rep. 30 ; McCloskey 
 V. Oyphert, 27 Pa. 220; Partridge v. Arnold, 73 111. 60O; Winchester v. Reid, 
 53 N. C. 379 ; Johnson v. Silsbee, 49 N. H. 543 ; Chase v. Elkins, 2 Vt. 290; 
 Bray v. Wheeler, 29 Vt. 514; Lackman v. Wood, 25 Cal. 147; Dierker v. 
 Hess, 54 Mo. 250 ; Furrh v. McKnight, 6 Tex. Oiv. App. 583, 26 S. W. 95. 
 
 26 Wilson V. McMillan, 62 Ga. 16, 35 Am. Rep. 115; Dierker v. Hess, 54 Mo 
 250; Hall v. HaU, 44 N. H. 293. 
 
 2 7 Winchester v. Reid, 53 N. O. 379. 
 
 28 McCloskey v. Oyphert, 27 Pa. 220. ' 
 
 2 » Atwood V. Holcomb, 39 Conn. 270, 12 Am. Rep. 386 ; Wilson v. McMillan, 
 62 Ga. 16, 35 Am. Rep. 115. 
 
 so Beaver v. Bare, 104 Pa. 58, 49 Am. Rep. 567; Winchester v. Reid, 53 
 N. 0. 379; Dick v. Grissom, Freem. Ch. (Miss.) 428, 
 
366 . BIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 (1) If the child is a minor, living at home, service is pre- 
 
 sumed. 
 
 (2) Temporary absence of the child from home will not pre- 
 
 vent a recovery, if the parent has a right to its serv- 
 ices. 
 
 (3) By the weight of authority in this country, but not in 
 
 England, the parent may recover if he has not relin- 
 quished his tight to reclaim the child's services at any 
 time, though the child, at the time of the injury, may 
 be in the actual service of another, even with the par- 
 ent's consent, and even though the child does not in- 
 tend to return. 
 
 (4) If the parent has relinquished his right to the child's 
 
 services, he cannot recover on the theory of loss of 
 service. 
 (b) On the theory that loss of service at the time of action is the 
 gist of the action by a parent for an injury to his child, it 
 is held in England that there can be no recovery at all 
 where there has been no loss of service, as where the child 
 is too young to render any service. But, by the weight of 
 authority in this country, there may be a recovery for in- 
 cidental expenses in caring for the child, and there may be 
 a recovery for prospective loss of services, however young 
 the child may be. 
 134. At common law, an action would not lie for an injury result- 
 ing in the immediate death of the child ; but a right of ac- 
 tion in such a cause is very generally given by statute. 
 
 Where a child is injured by the wrongful conduct of another, and 
 the injury results in direct and proximate damage to the parent, the 
 tort gives rise to two causes of action — one in the parent, and one in 
 the child.^^ The two causes of action are separate and distinct. 
 The child cannot sue for the damage to the parent, nor can the par- 
 ent sue for the damage to the child. Each must sue for his own 
 damage, and neither action is a bar to the other.^'' 
 
 SI Louisville, H. & St. L. K. Co. v. Lyons, 156 Ky. 222, 160 S. W. 942. 
 
 3 2 Wilton V. Middlesex Railroad Ck)., 125 Mass. 130; Karr v. Parks, 44 
 Cal. 46; Forsythe v. Central Mfg. Co., 103 Tenn. 497, 53 S. W. 731 ; Slaugh- 
 ter V. Nashville, 0. & St. L. Ry. Co., 90 S. W. 243, 28 Ky. Lav? Rep. 665, re- 
 hearing denied 91 S. W. 713. 
 
§§ 132-134) ACTION BY PARENT FOR INJURIES TO CHILD 367 
 
 Where the wrong results in damage to the child only, no action 
 can be maintained by the parent. A father cannot maintain an ac- 
 tion for the wrongful exclusion of his child frpm school, for the 
 child alone is damaged.^' Where a child is injured by an assault 
 and battery, the child alone can sue for the personal injury, includ- 
 ing the physical and mental suffering, and the expense, if anyj in- 
 curred by him ; for this damage is to him, and not to the parent.** 
 As will be seen in a subsequent section, the same is true where a 
 daughter is seduced or debauched. Her father cannot maintain an 
 action therefor at cbmmon law, unless he is specially damaged. 
 For the mere seduction, the action, if it can be maintained at all, 
 must be brought by the daughter.*" And so it is in other cases; a 
 parent cannot in any case maintain an action for an injury to his 
 child alone, unless he brings the action in the name of the child."" 
 If, however, a wrong results in a direct injury to the parent, as 
 distinguished from the injury to the child, the parent has a right of 
 action. 
 
 Loss of Services of Child 
 
 Since a parent having the care and custody of his child has a right 
 to his services and earnings, any wrongful act or omission of a per- 
 son, the direct result of which is to cause him to lose such services 
 temporarily or permanently, is an injury to him, as distinguished 
 from the injury to the child; and the authorities are therefore 
 agreed that, if he has sustained such a loss, he may maintain an 
 action therefor. And in such an action he may recover, not only for 
 the loss up to the time the action is brought, but also, since he can 
 recover but once for the wrong, for any loss of service during the 
 
 33 Boyd V. Blaisdell, 15 Ind. 73 ; Sorrels v. Matthews, 129 Ga. 319, 58 S. E. 
 819, 13 L. R. A. (N. S.) 357, 12 Ann. Cas. 404 ; Donahoe v. Richards, 38 Me. 
 376. 
 
 3* Cowden v. Wright, 24 Wend. (N. T.) 429, 35 Am. Dec. 633 ; Rogers v. 
 Smith, 17 Ind. 323, 79 Am. Dec. 483 ; WUton v. Middlesex Railroad Co., 125 
 Mass. 130; Western Union Tel. Co. v. Erwin (Tex. Civ. App.) 147 S. W. 607. 
 
 35 Post, p. .378. 
 
 3« SORRELS V. MATTHEWS, 129 Ga. 319, 58 S. E. 819, 13 L. R. A. (N. S.) 
 357, 12 Ann. Cas. 404, Cooley Cas. Persons and Domestic Relations, 200 ; Kirk 
 V. Middlebrook, 201 Mo. 245, 100 S. W. 450 ; Pattison v. Gulf Bag Co., 116 La. 
 963, 41 South. 224, 114 Am. St. Rep. 570; Tennessee Cent. Ry. Co. v. Doak, 
 lis Tenn. 720, 92 S. W. 853. But see Nymali v. Lynde, 93 Minn. 257, 101 N. 
 W. 163, following Gardner v. Kellogg, 23 Minn. 463, and holding that under 
 Rev. Laws 1905, § 4060, the father may maintain an action for injuries to his 
 minor child ; the action being for the benefit of, and a bar to an independent 
 action by, the child. 
 
368 EIGHTS OF PARENTS AND OP CHILDREN ^Ch- 10 
 
 child's minority which, in the judgment of the jury, and according 
 to the evidence, will be sustained in the future.^^ This is trde of 
 any injury to a child resulting directly in loss of services to the par- 
 ent. It is true of an assault and battery,^^ of negligence resulting 
 in personal injuries,^" of malicious prosecution or false imprison- 
 ment,*" and of injuries inflicted by vicious animals negligently per- 
 mitted to run at large. *^ As will be seen more at length in subse- 
 quent sections, it is also true of the seduction or debauching of a 
 daughter,*^ and of the abduction, enticing away, or harboring of 
 a child.*^ 
 
 The right of the parent to recover for the loss of services of the 
 child depends, in the case of personal injuries, on the right of the 
 child to recover for the injury.** So, too, where the parent by giv- 
 ing consent to employment in a dangerous occupation thereby as- 
 sumed the risks of the employment, he cannot recover for an injury 
 due thereto. *° But the consent of the parent to the employment 
 
 S7 Russell V. Corne, 2 Ld. Raym. 1032 ; Wilton v. Middlesex R, Oo., 125 
 Mass. 130; Cowden v. Wright, 24 Wend. (N. Y.) 429, 85 Am. Dee. 633; Bol- 
 lard V. Roberts, 130 N. T. 269, 29 N. E. 104, 14 L. R. A. 238 ; Rogers v. Smith, 
 17 Ind. 323, 79 Am. Dec. 483 ; Dufleld v. Cross, 12 111. 397 ; Kerr v. Forgue, 
 54 111. 482, 5 Am. Rep. 146 ; Shawnee Gas & Electric Oo. v. Motesenbocker, 41 
 Oiil. 454, 138 Pac. 790; Kenner v. Kenner, 139 Tenn. 700, 202 S. W. 723, L. R. 
 A. 1918B, 587, denying rehearing 139 Tenn. 211, 201 S. W. 779, L. R. A. 1918B, 
 587 ; lllagee v. Holland, 27 N. J. Law, 86, 72 Am. Dec. 341 ; Shields v. Tonge, 
 15 Ga. 349, 60 Am. Dec. 698; Kemiard v. Burton, 25 Me. 39, 43 Am. Dec. 
 249; Klingman v. Holmes, 54 Mo. 304; Houston & G. N. R. Co. v. "Miller, 49 
 Tex. 322; Braswell v. Garfield Cotton Oil Mill Co., 7 Ga. App. 167, 66 S. E. 
 639; Chesapeake & O. Ry. Oo. v. De Atley, 151 Ky. 109, 151 S. W. 363; 
 Shawnee Gas & Electric Oo. v. Hunt, 32 Okl. 368, 122 Pac. 673; Wennell v. 
 Dowson, 88 Conn. 710, 92 Atl. 663. 
 
 38 Oowden v. Wright, 24 Wend. (N. T.) 429, 35 Am. Dec. 633 ; Klingman v. 
 Holmes, 54 Mo. 304; Hoover v. Helm, 7 Watts (Pa.) 62; Trimble v. Spiller, 
 7 T. B. Mon. (Ky.) 394, 18 Am. Dec. 189. 
 
 39 Kennard v. Burton, 25 Me. 39, 43 Am. Dec. 249 ; Shields v. Yonge, 15 Ga. 
 349, 60 Am. Dec. 698 ; Wilton v. Middlesex R. Co., 125 Mass. 130 ; Houston & 
 G. N. R. Co. V. Miller, 49 Tex. 322. 
 
 40 Rogers V. Smith, 17 Ind. 323, 79 Am. Dec. 483. 
 
 41 Burden v. Barnett, 7 Ala. 169 ; Karr v. Parks, 44 Cal. 46. 
 
 42 Post, p. 378. 
 
 43 Post, p. 384. 
 
 44 Thompson v. United Laboratories Co., 221 Mass. 276, 108 N. E. 1042 ; Re- 
 gan V. Superb Theatre, 220 Mass. 259, 107 N. E. 984. If the child's rig'ht'of 
 action is barred by reason of contributory negligence, the parent's right of 
 action is also barred. Raden v. Georgia R. Oo., 78 Ga. 47. 
 
 45 Weaver v. Iselin, 161 Pa. 386, 29 Atl. 49; King v. Floding, 18 Ga. App." 
 280, 89 S. B. 451; Hetzel v. Wasson Piston Ring Co., S9 N. J. Law, 205, 98 
 
§§ 132-134) ACTION BY PARENT FOB INJURIES TO CHILD 3C9 
 
 will not prevent a recovery for injuries due, not to the ordinary 
 risks, but the negligence of the employer.** 
 
 Expenses Incurred by Reason of the Wrong 
 
 If a parent is put to extra expense in the support and maintenance 
 of his children, by reason of the tortious conduct of another, consti- 
 tuting an interference with his legal rights as parent, he should be 
 allowed to recover for such expense from the wrongdoer. Thus, in 
 case of an assault and battery committed upon his child, or any oth- 
 er tortious conduct towards the child, resulting in personal injuries, 
 the parent should recover for the medical or other expenses incurred 
 in curing and caring for him. His right to recover such damages is 
 conceded by all the authorities where the relation of master and 
 servant exists, actually or constructively, and the injury also re- 
 sults in a loss of the child's services.*^ This rule not only applies to 
 expenses in curing personal injuries, but, as will be seen, it alsp ap- 
 plies to medical and other expenses in caring for ja. daughter who 
 has been seduced or debauched,*' and to expenses in regaining the 
 custody of an abducted child.* ^ 
 
 Whether or not a parent can recover for expenses in caring for 
 and curing an injured child, independently of any loss of services, is 
 a question upon which the authorities are conflicting.^" 
 
 Necessity to Show Loss of Service 
 
 It is clear, of course, that there can be no recovery as for loss of 
 services, unless a loss of service can be shown. Therefore, where 
 the damages sought to be recovered in any particular case are for 
 the loss of services of the child, it must appear that the relationship 
 
 Atl. 308 (applying P. L. 1904, p. 152). See, also, New v. Southern Ky. Co., 
 116 Ga. 147, 42 S. E. ,391, 59 L. K. A. 115. ' 
 
 *6 Woodward Iron Co. v. Cook, 124 Ala. 349, 2T South. 455. 
 
 47 Russell V. Corne, 2 Ld. Eaym. 1032; Wilton v. Middlesex R. Co., 125 
 iMass. 130; Rogers v. Smith, 17 Ind. 323, 79 Am. Dec. 483; Magee v. Hol- 
 land, 27 N. J. Law, 86, 72 Am. Dec. 341; Shawnee Gas & Electric Co. v. 
 Motesenbocker, 41 Okl. 454, 138 Pac. 790; Travers v. Hartmann, 5 Boyce 
 (Del.) 302, 92 Atl. 855; Chesapeake & O. R. Co. v. De Atley, 151 Ky. 109, 151 
 S. W. 363 ; Klingman v. Holmes, 54 Mo. 304 ; Cumipg v. Brooklyn City R. Co., 
 109 N. T. 95, 16 N. E. 65. See, also, Tennessee Cent. Ry. Co. v. Doak, 115 Tenn. 
 720, 92 S. W. 853. But see Fagan v. Interurban St. Ry. Oo. (Sup.) 85 N. T. 
 Supp. 340, holding that, in an action for personal injuries to plainiiff's son, 
 there could he no recovery for expenses alleged to have been incurred for the 
 board, lodging, and nursing of the son, where such expenses were not paid 
 by plaintiff, nor their reasonable value shown. 
 
 *8 Post, p. 378. *" Post, p. -384, bo Post, p. 372. 
 
 TIIT.P.& D.Rel.(3d Ed.)— 24 
 
370 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 of master and servant, actual or constructive, exists between tEe 
 plaintiff and the child." If the child has been wholly emancipated 
 by the parent, so that he is not entitled to his services, there can 
 be no recovery on the theory of a loss of service/^ Nor, it seems 
 clear, can there be any recovery on such a theory by a parent who, 
 by desertion and nonsupport, has forfeited all right to his child's 
 services, or impliedly emancipated him.^^ 
 
 If a minor child has not been emancipated, and the parent, by his 
 conduct, has not lost the right to his services, the relationship of 
 master and servant will be presumed, and no proof of acts of service 
 is necessary. It is the right to the child's service, and not actual 
 perfprmance of services, that determines the right to recover." 
 Th€ mere temporary absence of a child from home, therefore, at the 
 time of his injury, will not defeat a recovery by the parent, if the 
 parent has a right to his services. °° 
 
 51 Martin v. Payne, 9 Johns. (N. Y.) 387, 6 Am. Dec. 2S8. And see BickhofC 
 V. Sedalia, W. & S. W. Ky. Co., 106 Mo. App. 541, 80 S. W. 966, upholding the 
 right of a stepfather to sue. , See, also,- Palmer v. -Baum, 123 111. App. 584, 
 where it was held that a father may recover for loss of services of an adult 
 daughter who though married was separated from her husband and a mem- 
 ber of such father's family. 
 
 5 2 McCarthy v. boston & L. B. Corp., 148 Mass. 550, 20 N. B. 182, 2 
 L. B. A. 608, Oooley Cas. Persons and Domestic Relations, 200 ; Chesapeake & 
 O. Ry. Co. V. De Atley, 151 Ky. 109, 151 S. W. 363 ; Memphis Steel Const. Co. 
 V. Lister, 138 Tenn. 307, 197 S. W. 902, L.'R. A. 1918B, 406; Pecos & N. T. 
 Ry. Co. V. Blasengame, 42 Tex. Civ. App. 66, 93 S. W. 187. Emancipation 
 of a minor child is a question of fact. If the parent continues to exercise 
 authority, and the child- to submit to it, the relation of master and servant 
 continues. Sutton v. Huffman, 32 N. J. Law, 58 ; Hudkins v. Haskins, 22 W. 
 Va. 645. 
 
 63 Southern Ry. Co. v. Flemister, 120 Ga. 524, 48 S. E. 160; Wodell v. 
 Coggeshall, 2 Mete. (Mass.) 89, 35 Am. Dec. 391. As to what constitutes 
 emancipation, express and implied, see ante, p. 280. 
 
 54 Jag, Torts, 452 ; Evans v. Walton, L. B. 2 O. P. 615 ; Maunder v. Venn, 
 Mooifly & M. 323 ; Manvell v. Thomson, 2 Car. & P. 303 ; Terry v. Hutchin- 
 son, L. R. 3 Q. B. 599; Herring v. Jester, 2 Houst. (Del.) 66; Parker v. 
 Meek, 3 Sneed (Tenn.) 29; Emery v. Gowen, 4 Greenl. <Me.) 33, 16 Am. Dec. 
 233 ; Mercer v. Walmsley, 5 Har. & J. (Md.) 27, 9 Am. Dec. 486 ; Kennedy v. 
 Shea, 110 Mass. 147, 14 Am. Rep. 584 ; Martin' v. Payne, 9 Johns. (N. Y.) 387, 
 6 Am. Dec. 288 ; Bartley v. Richtmyer, 4 N. Y. 39, 53 Am. Dec. 338 ; Boyd v. 
 Byrd, 8 Blackf. (Ind.) 113, 44 Am. Dec. 740 ; Mulvehall v. Millward, 11 N. Y. 
 343; Chesapeake & O. Ry. Co. v. De Atley, 151 Ky. 109, 151 S. W. 363; Bice 
 V. Norfolk Southern B. Co., 167 N. C. 1, 82 S. E. 1034. And see Amos v. 
 Atlanta By. Co., 104 Ga. 809, 31 S. E. 42, where the child at the time of the 
 injury was working In the county chain gang under sentence. 
 
 5 5 Martin v. Payne, 9 Johns. (N. Y.) 387, 6 Am. Dec. 288; Boyd v. Byrd, 8 
 Blackf. (Ind.) 113, 44 Am. Dec. 740. 
 
§§ 132-134) ACTION BY PAEENT FOB INJUBIES TO CHILD 371 
 
 In England it is held that there is no right of action in the par- 
 ent, on the theory of loss of service, where the child has left home 
 and is in the service of another, at the time of the injury; and that 
 it can make no difference that the parent has not bound the child 
 out, and can reclaim his services at any time, or even that the 
 child's departure is against the parent's will.'*' In this country the 
 rule is different in most states, if not in all. It is held that, if the 
 parent has not emancipated the child or otherwise forfeited the 
 right to his services, he may at any time compel the child to return 
 and serve him; and the child, therefore, is still constructively in 
 the parent's service. °^ The American doctrine necessarily results 
 from the principle that it is the right to a minor child's services, 
 and not present acts of service, at the time of the injury, that de- 
 termines the right to recover."* The fact that the child has no 
 intention to return cannot make any difference, for that cannot ter- 
 minate the relationship of master and servant between the parent 
 and the child. As was said by the New York court, the child's voli- 
 tion cannot affect the parent's rights."* This question has general- 
 ly arisen in actions for the seduction or debauching of a daughter ; 
 but the doctrine is general, and must apply just as well where 
 some other injury to a child is complained of. If the child, at the 
 time of the injury, is bound out to service to another, the rule is 
 different, for the parent then has no right to the child's services.*" 
 
 58 Dean v. Peel, 5 East, 45; Da vies v. Williams, 10 Q. B. 725; Hedges v. 
 Tagg, L. R. 7 Exch. *283 ; Blaymire v. Haley, 6 Mees. & W. 55 ; Thompson 
 V. Eoss,^5 Hurl. & N. 16. 
 
 5 7 Martin v. Payne, 9 Johns. (N. Y.) 387, 6 Am. Dec. 288; Mulvehall v, 
 ■Millward, 11 N. T. 343; Clark v. Fitch, 2 Wend. (N. T.) 459, 20 Am. Dec. 
 639; Kennedy v. Shea, 110 Mass. 147, 14 Am. Rep. 584; Emery v. Gowen, 
 4 Greenl. (Me.) 33, 16 Am. Dec. 233; Ellington v. Ellington, 47 Miss. 329; 
 White V. Murtland, 71 111. 250, 22 Am. Rep. 100.; Hornket;h v. Barr, 8 Serg. 
 & R. (Pa.) 36, 11 Am. Dec. 568; Logan v. Murray, 6 Serg. & R. (Pa.) 175, 9 
 Am. Dec. 422; Mohry v. Hoffman, 86 Pa. 358 ; Boyd v. Byrd, 8 Blackf, (Ind.) 
 113, 44 Am. Dec. 740; Bolton v. MUler, 6 Ind. 266; Mercer v. Walmsley, 5 
 Har. & J. (Md.) 27, 9 Am. Dee. 486; Greenwood v. Greenwood, 28 Md. 369, 
 382 ; Hudkins v. Haskins, 22 W. Va. 645. 
 
 58 Martin v. Payne, 9 Johns. (N. T.) 387, 6 Am. Dec. 288; Olark v. Fitch, 
 2 Wend. (N. T.) 459, 20 Am. Dec. 639; Mulvehall v. Millward, 11 N. Y. 343. 
 
 59 Martin v. Payne, 9 Johns. (N. Y.) 389, 6 Am. Dec. 288. 
 
 «oDain v. Wycoff, 7 N. Y. 191; Kennedy v. Shea, 110 Mass. 150, 14 Am. 
 Itep. 584; Ellington v. Ellington, 47 Miss. 329: Bolton v. Miller, 6 Ind. 262. 
 Even in England however, it was held that where a man fraudulently pro- 
 cured a girl to enter his service, for the purpose of seducing her, and car- 
 ried out his purpose, the parent might sue as if no hiring had taken place.^ 
 Speight V. Oliviera; 2 Starkie, 493. 
 
372 EIGHTS OF PARENTS AND OF CHILDREN • (Ch. 10 
 
 If the service has terminated, however, and the child has returned 
 home, or is on his way home, he is constructively in his parent's 
 service, and, if injured before or after reaching home, the parent 
 may recover.*^ 
 
 If the child is so young at the time of the injury that it is incapa- 
 ble of performing any act of service, and it is cured before it reach- 
 es an age at which it can perform services, it is clear that theire 
 can be no recovery as for mere loss of service, for there ha.s been 
 and can be no loss of service, as the result of the injury. In Hall 
 V. Hollander"^ the child was less than three years old when in- 
 jured, and was cured within six months. The declaration sought 
 to recover, among other damages, for loss of the child's services 
 during that time. It was very properly held that there could be no 
 recovery as for loss of services. In England the cases go further 
 than this, and hold that, where the parent sues "per quod servitium. 
 amisit," he must show a loss of service at the time of the action, and 
 cannot maintain an action solely for prospective loss of service. 
 And it is therefore held that there can be no recovery for loss of 
 services where the child, at the time of the action, is too young to 
 perform any act of service, though the injury may be permanent, 
 and it may be clear that there will be a loss of services in the future. 
 There are decisions and dicta in this country to the same effect.'^ 
 But, in most states where the question has arisen, the doctrine of 
 the English courts is repudiated, and it is held that there may be a 
 recovery for prospective loss of. services, hoAvever young or in- 
 capable of service the child may be at the time the action is 
 brought.** 
 
 Whether or not a parent can recover for expenses incurred in car- 
 ing for his child independently of any loss of service is a question 
 
 61 Terry v. Hutchinson, L. R. 3 Q. B. 599 (a case of seduction of a daugh- 
 ter). And see Emery v. Gowen, 4 Greenl. (Me.) 3.S, 16 Am. Dec. 233. 
 
 6 2 7 Dowl. & E. 133. 
 
 <S3 See Whltaker v, Warren, 60 N. H. 20, 49 Am. Eep. 302; Shields v. Yonge, 
 15 Ga. 349, 356, 60 Am. Dec. 698; Matthews v. Missouri Pac. Ey. Co., 26 Mo. 
 App. 75; Dunn v. Cass Ave. & F. G. Ey. Co., 21 Mo. App. 188. 
 
 6 4 Finley v. Richmond & D. R. Co. (C. C.) 59 Fed. 419; Clark v. Bayer, 32 
 Ohio St. 299, 30 Am. Rep. 593; ^Frick v. St. Louis, K. C. & N. Ey. Co., 75 
 Mo. 542; Cuming v. Broolvlyn City R. Co., 109 N. Y. 95, 16 N. E. 65; Rice 
 V. Norfolk Southern E. Co., 167 N. 0. 1, 82 S. E. 1034; NETHBRLAND- 
 AMBRICAN STEAM NAV. CO. v. HOLLANDER, 59 Fed. 417, 8 C. C. A. 169, 
 Cooley Cas. Persons and Domestic Relations, 198. 
 
§§ 132-134) ACTION BY PARENT FOR INJURIES TO CHILD 378 
 
 upon which the authorities are conflicting. In Hall v. Hollander,'" 
 which has already been referred to, a father brought an action for 
 personal injury to his son by driving against him. The declaration 
 alleged that, by means thereof, the son was sick during the space of 
 six months, "during all which time the plaintiff lost and was depriv- 
 ed of the service of his said son and servant, and was also thereby 
 forced and obliged to pay, lay out, and expend a large sum of 
 money, in and about endeavoring to procure his said son and serv- 
 ant to be cured," etc. At the trial it appeared that the son was only 
 2% years old, and there was no evidence that he was capable of 
 performing any service for his father. It was therefore held that 
 the action as brought could not be maintained. This case has often 
 been cited as authority for the proposition that there can be no re- 
 covery for expenses incurred by a parent in caring for the injured 
 child in the absence of the actual or constructive relation of master 
 and servant, and loss of services. But the case does not go so far. 
 The declaration expressly based the right to recover on the exist- 
 ence of the relationship of master and servant, and the evidence 
 showed that the child was too young to perform any act of service. 
 It was for this reason that the action failed. Bayley, J., said that 
 he certainly was not prepared to say "that a declaration might not 
 be framed, in which the father being averred to be under an ob- 
 ligation to maintain the child, and having no means of obtaining 
 medical assistance, he necessarily incurred expense in and about 
 his cure, so as to entitle him to recover." The later English cases, 
 however, hold that there can be no recovery for such expenses un- 
 less there is an actual or constructive relationship of master and 
 servant, and, therefore, that there can be no recovery even for 
 medical and other expenses where the child is too young to render 
 services."' There are cases in this country which recognize the 
 same doctrine.'^ 
 
 These cases which deny to the parent any remedy for medical or 
 other expenses incurred in consequence of the injury to the child, 
 except as incident to the loss of service, ignore the parental relation 
 and obligation as an independent ground of recovery, although it is 
 clear that the parent has sustained a pecuniary loss as the proxi- 
 
 85 7Dowl. & R. 133. 
 
 86 Grinnell v. Wells, 8 Scott, N. B. 741."' 
 
 e^Wliitaker v. Warren, 60 N. H. 20, 49 Am. Rep. 302; Shields v. Tonge, 
 15 Ga. 349, 356, 60 Am. Dee. 698 ; Matthews v. Missouri Pac. Ry. Co., 26 Mo. 
 App. 75 ; Dunn v. Cass Ave. & T. G. Ry. Co., 21 Mo. App. 188. 
 
374 BIGHTS OF PARENTS AND OF CHILDREN (Ch. lO" 
 
 mate result of the wrong. In this country the prevailing doctrine, 
 is the other way, and in favor of allowing the parent to recover in- 
 dependently of any question as to loss of service. "The authorities 
 in this country approve a more liberal and a more reasonable doc- 
 trine, and, basing the right of action upon the parental relation, in- 
 stead of master and servant, allow the father to recover his conse- 
 quential loss irrespective of the age of the minor." °* In Dennis. 
 V. Clark," ^ which is a leading case holding this doctrine, it was 
 decided after careful consideration, and a review of the authorities,, 
 that, when an infant residing with his father receives such an in- 
 jury as would give the child a right of action, the father, who is 
 put to necessary expense in the care and cure of the child, may 
 maintain an action for indemnity, though the child may be too 
 young to render any service. This doctrine casts upon the wrong- 
 doer responsibility for a pecuniary loss flowing approximately from 
 his wrongful act, if actually sustained by the parent in the dis- 
 charge of his parental obligation to care for and maintain his infant 
 children, without regard to any consideration of loss of service. 
 
 It has been held in a late case in New York that the parent can- 
 not recover for medical and surgical expenses, which, according to 
 the testimony of experts, may become necessary in the future, 
 though the child might be allowed to recover therefor/" 
 
 Other Elements of Damage 
 
 As will presently be seen, the courts have made a distinction as 
 regards the measure of damages, between actions by a parent for 
 the seduction or debauching of his, daughter and actions for other 
 wrongs. In the forpier they not only allow the parent to recover 
 for loss of his daughter's services, and for medical and other ex- 
 penses incurred in caring for her, but they recognize, as the real 
 gravamen of the action, the wounded feelings and mortification of 
 the parent, the disgrace brought upon his family by the wrong, and 
 the corrupting example to the other children, and allow the jury 
 
 esFlnley v. Richmond & D. R. Co. (C. O.) 59 Fed. 419; Dennis ^. Clark, 
 2 Cush. (Mass.) .S47, 48 Am. Dec. 671; Sykes v. Lawlor, 49 Cal. 2.S6; Dur- 
 den V. Bamett, 7 Ala. 169; Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 
 593; Trow v. Thomas, 70 Vt. .580, 41 Atl. 652; Cuming v. Brooklyn City 
 R. Co., 109 N. T. 95, 16 N. E. 65 ; NETHERLAND-AMERIOAN STEAM NAY. 
 CO. V. HOLLANDER,, 59 Fed. 417, 8 C. C. A. 169, Cooley Cas. Persons and 
 Domestic Relations, 198. 
 
 6» 2 Cush. (Mass.) 347, 48 Am. Dec. 671. 
 
 7 Cuming V. Brooklyn City R. Co., 109 N. X. 95, 16 N. E. 65. 
 
■§§ 132-134) ACTION BY PARENT FOB INJURIES TO CHILD 375 
 
 to take these matters into consideration in awarding the damages.''^ 
 There are some cases in which this principle has been applied in 
 an action for loss of service from other injuries than seduction. 
 It has been held, for instance, that in an action per quod servitium 
 amisit, brought by a parent for an assault and battery on his 
 daughter, the jury, in assessing the damages, had a right to con- 
 sider the injury to the parent's feelings, and to the character of the 
 family.'^ In most states the rule is otherwise,^' the recovery of 
 such damages being limited to actions for the seduction or debauch- 
 ing of a daughter. 
 
 Remote and Proximate Cause 
 
 The loss of service or expenses incurred by the parent must be 
 the proximate result of the wrongful conduct of the defendant, or he 
 cannot recover therefor. Thus, as will be seen in dealing with 
 seduction, if the daughter loses her health, not as the direct result 
 of the seduction, but because of mental suffering caused by her 
 abandonment by the seducer, shame resulting from exposure, or 
 other similar causes, and her loss of health results in the loss of 
 her services to her father, or in expenses to him, the seduction is 
 not the proximate cause of the loss, and the father cannot maintain 
 an action therefor.''* The same principle applies in the case of 
 other injuries. 
 
 Adult Children 
 
 A parent may maintain an action for the^loss of the services of 
 an adult child if the relationship of master and servant exists be- 
 tween them. In such a case the relationship will not be implied, 
 as in the case of a minor child, for there is no right to the services 
 of an adult child from which to imply service. It must be shown 
 that the relationship actually exists. The question has generally 
 arisen in cases of seduction of an adult daughter, but the rule ap- 
 plies to other injuries also.'^ 
 
 71 Post, p. 382. 
 
 7 2 Trimble v. Spiller, 7 T. B. Mon. (Ky.) 394, 18 Am. Dec. 189. And see 
 Klingman v. Holmes, 54 Mo. 304 ; Magee v. Holland, 27 N. J. Law, 86, 72 
 Am. Dec. 341. 
 
 7 3Cowden v. Wright, 24 "Wend. (N. Y.) 429, 35 Am. Dec. 633; Whitney 
 V. Hitchcock, 4 Denio (N. Y.) 461. 
 
 li Post, p. 382. 
 
 75 Mercer v. Jackson, 54 111. 397 ; Palmer v. Baimi, 123 111. App. 584. As 
 to seduction of daughter, see post, p. 383. 
 
376 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 Who may Sue 
 
 The action for loss of services caused by, injury to a child is not 
 necessarily always in the father. It is in the person entitled to the 
 services of the child. If the father is entitled, then the action must 
 be brought by him, and not by the mother or any other person.'' 
 If the mother is entitled to the child's services, either because of 
 the father's death, or because of his desertion, leaving the child for 
 her to support, she may sue." And the action may be maintained 
 by any person who stands in loco parentis.'* 
 
 Action for Death of Child 
 
 In treating of husband and wife, attention was called to the rule, 
 "Actio personalis moritur cum persona," and it was shown that, by 
 the weight of authority, it was applied at common law so as to pre- 
 vent an action by one spouse for a wrongful act or neglect causing 
 the death of the other.'" It was seen that if, by the tortious con- 
 duct of another, a wife was killed, her husband could not, at com- 
 mon law, recover for the loss of her society or services. It was also 
 
 7 6 Vessel V. Cole, 10 Mo. 634, 47 Am. Dec. 136; Furman v. Van Sise, 56 
 
 N. Y. 435, 15 Am. Rep. 441; Sargent v. , 5 Cow. (M. T.) 106; Eyan 
 
 V. Fralick, 50 Mich. 483, 15 N. W. 561; Jag. Torts, 453. 
 
 "Bedford v. McKowl, 3 Esp. 119; Natchez, J. & O. R. Co. v. Cook, 63 
 Miss. 38; Savannah, F. & W. Ry. Co. v. Smith, 93 Ga; 742, 21 S. B. 157; 
 Harford County Com'rs v. Hamilton, 60 Md. 340, 45 Am. Rep. 739 ; Kennedy 
 V. New York Cent. & H. R. R. Co., 35 Hun (N. Y.) 187; Horgan v. Pacific 
 Mills, 158 Mass. 402, 33 N. E. 581, 35 Am. St. Rep. 504 ; Franklin v. Butcher, 
 144 Mo. App. 660, 129 S. W. 428 ; McGarr v. National & Providence Worsted 
 Mills, 24 R. I. 447, 53 Atl. 320, 60 L. R. A. 122, 96 Am. St. Rep. 749 ; Abra- 
 hams V. Kidney, 104 Mass. 222. 6 Am. Rep. 220; Ellington v. Ellington, 47 
 Miss. 329; Davidson v. Abbott, 52 Vt. 570, 36 Am. Rep. 767; Gray v. Dur- 
 land, 51 N. Y. 424; Keller v. Donnelly, 5 Md. 211. But see South v. Den- 
 niston, 2 Watts (Pa.) 474. A widow, who has remarried and who is not con- 
 tributing to the support of the child, cannot recover for injury not result- 
 ing in death, under the Pennsylvania statute. American Steel & Wire Co. 
 v. Tynon, 183 Fed. 949, 106 C. C. A. 289. 
 
 TsWhitaker v. Warren, 60 N. H. 20, 49 Am. Rep. 302; Clark v. Bayer, 32 
 Ohio St. 299, 30 Am. Rep. 593 ; Fernsler v. Moyer, 3 Watts & S. (Pa.) 416, 
 39 Am. Dec. 33; Irwin v. Dearman, 11 East, 23; Blanchard v. Tlsley, 120 
 Mass. 487, 21 Am. Rep. 535 ; Saunders v. Alvido & Laserre, 52 Tex. Civ. App. 
 356, 113 S. W. 992 : City of Albany v. Lindsey, 11 Ga. App. 573, 75 S. B. 911 ; 
 Ingersoll v. Jones, 5 Barb. (N. Y.) 661; Bartley v. Richtmyer, 4 N. J. 38, 
 58 Am. Dec. 338; Moritz v. Garnbart. 7 Watts (Pa.) 302, r\2 Am. Dec. 762; 
 Manvell v. Thomson, 2 Car. & P. 303; Davidson v. Goodall, 18 N. H. 423; 
 Keller v. Donnelly, 5 Md. 211; Ball v. Bruce, 21 111. 161 ; Maguinay v. Saudek, 
 5 Sneed (Tenn.) 146; Jag. Torts, 454, and cases there collected. See post, 
 p. 384. 
 
 7 Ante, p. 121; TifC. Death Wrongf, Act, §§ 1-18, 
 
§§ 132-134) ACTION BY PARENT FOB INJtJEIES TO CHILD 377 
 
 seen that this rule has been very generally changed by statute. The 
 same is true in the case of parent and child, where the child is killed 
 by the wrongful act or omission of another. Though there were 
 some cases to the contrary,*" by the weight of authority, at common 
 law the parent could not recover for the loss of the child's services, 
 nor for his expenses resulting from the wrong, where his death was 
 immediate.'^ Under Lord Campbell's act,*^ however, and the sim- 
 ilar statutes which have been enacted in this country, the rule is 
 different ; and, wherever a child's death is caused by the wrongful 
 act or omission of another, his parent, or his executor or adminis- 
 trator, for the parent's benefit, may recover damages for past and 
 prospective loss of the child's services. And it is well settled in this 
 country that, when suit is brought under the statute, there may be 
 a recovery for future loss of services, although the child was of such 
 tender years as to be incapable of rendering services.*^ Even under 
 the statutes, the damages are for loss of service, and their measure 
 is the value of the services, past and prospective, less the probable 
 cost of support and maintenance.** Beyond what the law will im- 
 ply as between parent and child, no proof of service in fact is nec- 
 essary in suing under the statute.*" 
 
 so Ford V. Monroe, 20 Wend. (N. Y.) 210 (since overruled) ; Plummer v. 
 Webb, 1 Ware, 69, Fed. Cas. No. 11,234 ; James v. Christy, 18 Mo. 162 ; Shields 
 V. Yonge, 15 Ga. 349, 60 Am. Dec. 698. 
 
 81 Osbom V. Glllett, L. R. 8 Exch. 88 (Bramwell, B., dissenting) ; Skinner 
 V. Housatonic E. Corp., 1 Cush. (Mass.) 475, 48 Am. Dec. 616; Nickerson v. 
 Harriman, 38 Me. 277 ; Covington St. Ry. Co. v. Packer, 9 Bush (Ky.) 455, 15 
 Am. Rep. 725; Edgar v. Castello, 14 S. C. 20, 37 Am. Rep. 714; Natchez, 
 J. & C. R. Co. V. Cook, 63 Miss. 38 ; Sherman v. Johnson, 58 Vt. 40, 2 Atl. 
 707 ; Jackson v. Pittsburgh, C, C. & St. L. Ry. Co., 140 Ind. 241, 39 N. E. 
 663, 49 Am. St. Rep. 192; Tite. Death Wrongf. Act, § 11, and cases there 
 cited. 
 
 82 St. 9 & 10 Vict, c. 93. 
 
 83 Ihl V. Forty-Second St. & G. St. Ferry R. Co., 47 N. Y. 317, 7 Am. Rep. 
 450 ; Oldfield v. New York & H. R. Co., 14 N. .Y. 310 ; Foppiano v. Baker, 3 
 Mo. App. 560. Both parents, may join ui an action for death of a child re- 
 sulting from breach of contract to properly care for him. Bailey v. College 
 of Sacred Heart, 52 Colo. 116, 119 Pac. 1067. 
 
 84Rockford, R. I. & St. I>. R. Co. v. Delaney, 82 111. 198, 25 Am. Rep. 308; 
 Rajnowski v. Detroit, B. C. & A. R. Co., 74 Mich. 20, 41 N. W. 847; Penn- 
 sylvania Co. V. Lilly, 73 Ind. 252 ; Brunswig v. White, 70 Tex. 504, 8 S. W. 85. 
 
 85 Duckworth v. Johnson, 4 Hurl. & N. 653; Condon v. Railway Co., 16 
 Ir. C. L. 415 ; Ihl v. Forty-Second St. & G. St. Ferry R. Co., 47 N. Y. 317, 
 7 Am. Rep. 450 ; Little Rock & Ft. S. Ry. Co. v. Barker, 39 Ark. 491 ; City 
 of Chicago v. Major, 18 111. 349, 68 Am. Dec. 553. 
 
378 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10- 
 
 Furnishing Intoxicating Liquor to Child 
 
 Perhaps, even at common law, a parent could maintain an action 
 against a person for selling or furnishing his minor child with 
 intoxicating liquors, whereby the parent sustains damage. At any 
 rate, in many states such a right of action is given by statute, so- 
 that "where liquor is sold to a minor, whereby he becomes intoxi- 
 cated, and he thereafter becomes sick in consequence thereof, and 
 the father is deprived of his services and is compelled to expend 
 money for medical attendance upon him, the father may maintain, 
 an action, under the civil damage law, to recover the damages oc- 
 casioned thereby." ^* 
 
 ACTION BY PARENT FOR SEDUCTION OR DEBAUCH- 
 ING OF DAUGHTER 
 
 135. On the seduction or debauching of his daughter, resulting ac- 
 
 tually or constructively in loss of service, the father, or any 
 one standing in loco parentis, has a right of action against 
 the wnrongdoer for the loss of service and incidental ex- 
 penses. 
 
 136. In such a case damages may also be given for all that the par-- 
 
 ent may suffer from the ruin of his daughter, the disgrace 
 to his famijy, and the corrupting example to his other chil- 
 dren. 
 
 137. The same rules apply here as in the case of other injuries, as 
 
 to the necessity to show that the daughter was in the ac- 
 tual or constructive service of the plaintiff at the time of 
 the injury. The necessity for loss of service has been dis- 
 pensed with by statute in some states. 
 
 A parent's right to the services of his child gives him a right of 
 action for damages arising from t|ie seduction or debauching of his- 
 daughter.^' At common law the daughter's consent to the inter- 
 
 86 Black, Intox. Liq. § 285. See Id. §§ 277-337. 
 
 8 7 Bennett v. AUcott, 2 Term R. 167; Woodward v. Walton, 2 Bos. & P.' 
 (N. R.) 476; Blagge v. Ilsley, 127 Mass. 191, 34 Am. Rep. 361; Hubbell v. 
 Wheeler, .2 Aik. (Vt.) 359; Parker v. Meek, 3 Sneed (Tenn.) 29; Logan v. 
 Murray, 6 Serg. & R. (Pa.) 175, 9 Am. Dec. 422 ; Ellington v. Ellington, 47 
 Miss. 329 ; Mercer v. Walmsley, 5 Har. & J. (Md.) 27, 9 Am. Dec. 486 ; Sar- 
 gent V. , 5 Cow. (N. Y.) 109; Scarlett v. Norwood, 115 N. C. 284, 20- 
 
 S. E. 459. If a marriage is fraudulently induced by a man who already has 
 a wife living, the fraud vitiates the parent's consent, and an action may be- 
 
'§§ 135-137) ACTION FOR SEDUCTION OP DAUGHTER 379 
 
 course prevented her from maintaining an action for her seduc' 
 tion ; '* but her consent cannot affect her parent's rights, and is 
 therefore no bar to his action for the loss of her services and other 
 
 • damages to him.^° 
 
 From the earliest period the cpurts have based the parent's right 
 of action, not upon the seduction or debauching, but upon the loss 
 
 •of his daughter's services. The action cannot be maintained for 
 the mere act of intercourse, though it is a far greater injury to the 
 fathei; than any mere pecunfary loss he may sustain. In Eager v. 
 Grimwood '"' it appeared that the defendant had debauched the 
 plaintiff's daughter, but that another, and not he, was the cause of 
 her pregnancy; and it was therefore held that the plaintiff could 
 not recover. 
 
 In its origin the action was very technical. If the wrongdoer 
 came upon the father's premises and debauched the daughter there, 
 the parent could maintain an action of trespass quare clausum 
 fregit, and lay the loss of service and other damage sustained by. 
 reason of the intercourse as consequential upon and in aggravation 
 of the trespass ; or he could, at his election, bring an action on the 
 case, ignoring the trespass. But for merely debauching a man's 
 daughter, unaccompanied by an unauthorized entry upon his prem- 
 ises, the action had to be in case. And such is still the rule at com- 
 mon law.°^ 
 
 When the action is for the loss of service, there can, of course, be 
 no recovery, unless the relationship of master and servant actually 
 
 'Or constructively exists.'^ And the cases go even further, and hold 
 
 maintained by him. Lawyer v. Fritcher, 130 N. T. 239, 29 N. E. 267, 14 
 Ij. R. a. 700, 27 Am. St. Rep. 521. 
 
 8 8 Paul V. Frazier, 3 Mass. 71, 3 Am. Dec. 95; Woodward v. Anderson, 9 
 
 Bush (Ky.) 624; Jordan v. Hovey, 72 Mo. 574, 37 Am. Rep. 447; Weaver 
 
 V. Bachert, 2 Pa. 80, 44 Am. Dec. 159; Oberlin v. Upson, 84 Ohio St. Ill, 
 
 95 N. B. 511, Ann. Gas. 1912B, 1061. But this has been changed by statute 
 
 -in some states. See Colly v. Thomas, 99 Misc. Rep. 158, 163 N. Y. Supp. 432. 
 
 8 9 Koenke v. Bauer, 162 Mo. App. 718, 145 S. W. 506; Reutkemeier v. Nolte, 
 179 Iowa, 342,- 161 N. W. 290, L. R. A. 1917D, 273. 
 
 80 1 Bxeh. 61. 
 
 91 Mercer v. Walmsley, 5 Har. & J. (Md.) 27, 9 Am. Dec. 486, and cases 
 cited in note 87, supra. 
 
 92 See Dain v. WycofE, 7 N. Y. 191, where the child was bound out as an 
 apprentice. But see, also, Bqjton v. Miller, 6 Ind. 262, holding that mere 
 agreement that child should serve another, which is not of such character 
 as to prevent father from claiming the services of the child at any time, la 
 
 -not sufficient to bar his right of action. And see, generally, ante, p. 370. 
 
380 EIGHTS OF PAKENTS AND OF CHILDREN (Ch. 10 
 
 that no action at all can be maintained, even for medical and other 
 expenses incurred in caring for the daughter, unless the relationship 
 of master and servant exists either in fact or in contemplation of 
 law.°^ As has been seen, however, in this country, where a minor 
 child is injured by the wrongful conduct of another, and the parent 
 incurs expense in caring for and curing the child, many courts base 
 the pare'nt's right of action for indemnity upon the parental relation 
 and obligation to maintain the child, instead of on the relation of 
 master and servant, and allow a recovery irrespective of the loss of 
 service."* Th'ere is no good reason why the doctrine of these cases 
 should not be applied to cases in which the wrong is the debauch- 
 ing of a daughter. 
 
 It is not necessary in this action, any more than in an action for 
 other injuries to a child to show the actual performance of services 
 by a minor child."^ It is sufficient to show that the parent has a 
 right to the daughter's services, if she is a minor, and service will 
 be implied.'* So the mere temporary absence of the daughter from 
 her parents' home does not bar the right to maintain the action."' 
 
 83 Grinnell v. Wells, 7 Man. & G. 1033 ; Harris v. Butler, 2 Mees. & "W. 
 539 ; Abrahams v. Kidney, 104 Mass. 222, 6 Am. Rep. 220 ; Hartley v. Richt- 
 myer, 4 N. Y. 88, 53 Am. Dec. 338 ; Coon v. MofEet, 3 N. J. Law, 583, 4 Am. 
 Dec. 392; White v. Murtland, 71 111. 252, 22 Am. Rep. 100; Vossel v. Cole, 
 10 Mo. 684, 47 Am. Dec. 136 ; Whitbourne v. Williams, 70 Law J. K. B. 933, 
 [1901] 2 K. B. 722, 85 Law T. 271. 
 
 »*Ante, p. 372. 
 
 5 Snider v. Newell, 132 N. C. 614, 44 S. E. 354. 
 
 9 8 Maunder v. Venn, Moody & M. 323; Manvell v. Thomson, 2 Car. & P. 
 308 ; Herring v. Jester, 2 Houst. (Del.) 66 ; Parker v. Meek, 3 Sneed (Tenn.) 
 29 ; Emery v. Gowen, 4 Greenl. (Me.) 33, 16 Am. Dec. 233 ; Bolton v. Miller, 
 6 Ind. 262 ; Martin v. Payne, 9 Johns. (N. Y.) 387, 6 Am. Dec. 288 ; Mercer 
 V. Walmsley, 5 Har. & J. (Md.) 27, 9 Am. Dec. 486; Kennedy v. Shea, 110 
 Mass. 147, 14 Am. Rep. 584; White v. Murtland, 71 111. 250, 22 Am. Rep. 
 100 ; Reutkemeier v. Nolte, 179 Iowa, 342, 161 N. W. 290, L.. R. A. 1917D, 
 273; Ingwaldson v. Skrivseth, 7 N. D. 388, 75 N. W. 772. But see Taylor 
 V. Daniel, 98 S. W. 986, 30 Ky. Law Rep. 377. 
 
 - 8 7 Clark V. Fitch, 2 Wend. (N. Y.) 459, 20 Am. Dec. 639; Elder v. Warner 
 (Sup.) 129 N. X. Supp. 816 ; Ingwaldson v. Skrivseth, 7 N. D. 388, 75 N. W. 
 772; Blagge v. Isley, 127 Mass. 191, 34 Am. Rep. 361; Emery v. Gowen, 4 
 Greenl. (Me.) 33, 16 Am. Dec. 233. In Martin v. Payne, 9 Johns. (N. Y.) 
 887, 6 Am. Dec. 288, the plaintifE's daughter, who was under age, went, with 
 the consent of her father, to live with her uncle, for whom she worked' when 
 she pleased, and he agreed to pay h6r for her work; but there was no 
 agreement that she should continue to live iii his house for any fixed time. 
 While in her uncle's house she was seduced and got with child. Immediately 
 .afterwards she returned to her father's house, where she was maintained, 
 and the expense of her lying in was paid by him. It was held that the' 
 
§§ 135-137) ACTION FOR SEDUCTION OF DAUGHTER 381 
 
 It has already been shown in a preceding section when the relation- 
 ship of master and servant is deemed to exist between parent and 
 child, and the rules there stated are applicable in cases of seduc- 
 tion.''^ 
 
 The courts have made a distinction, as regards the measure of 
 damages, between actions by a parent for the seduction or debauch- 
 ing of his daughter and actions for other wrongs. The fiction of 
 loss of service is generally upheld even in cases' of seduction ; but 
 the courts recognize as the real gravamen of the action the wounded 
 feelings and mortification of the parent, the disgrace brought upon 
 his family by the wrong, and the corrupting example to the other 
 children, and allow the jury to take these matters into considera- 
 tion in awarding damages."* As was said by Lord Eldon: "In 
 point of form, the action only purports to give a recompense for Joss 
 of service ; but we cannot shut our eyes to the fact that this is an 
 action brought by a parent for an injury to her child. In such case 
 
 I am of opinion that the jury may take into their consideration all 
 that she can feel from the nature of the loss. They may look upon 
 her as a parent losing the comfort, as well as the service, of her 
 daughter, in whose virtue she can feel no consolation, and as the 
 
 father could maintain an action against the seducer. In Clarfe v. Fitch, 2 
 Wend. (N. Y.) 459, 20 Am. Dec. 639, it was proved upon the trial of a similar 
 action that the plaintiff told his daughter that she might remain at home or 
 go out to service, as she pleased, but, if she left his house, she must take 
 care of herself, and he relinquished all claim to her wages and services. It 
 was contended that there was a distinction between this case and that of 
 Martin v. Payne, supra, on the ground that he had given her her time ab- 
 solutely; but the court held that the personal rights of the father were 
 not relinquished, and that he could recover. And in Mulvehall v. Millward, 
 
 II N. Y. 343, it appeared that the plaintiff's minor daughter, who had left 
 his house to work for the defendant, was seduced by the latter while In 
 his employ, and became pregnant. She thereafter worked at other places, 
 and did not return to her father's house ; nor did it appear that she had 
 any intention to return there until after her confinement and the birth of 
 her child. It was not shown that her father took any care of her, or ex- 
 pended any money on her account, during her pregnancy or sickness. . It 
 was held that, as the father had not surrendered his right to her services, 
 he could maintain an action for her seduction. 
 
 9 8 Ante, p. 369, where the cases on seduction as well as on other injuries 
 are collected, and the conflicts shown. 
 
 99 Blagge V. Ilsley, 127 Mass. 191, 34 Am. Rep. 361 ; Bedford v. McKowl, 
 3 Esp. 119; Irwin v. Dearman, 11 East, 23; Barbour v. Stephenson (C. C.) 
 32 Fed. 66; Clem v. Holmes, 33 Grat. (Va.) 722, 36 Am. Rep. 793; Rollins 
 V. Chalmers, 51 Vt. 592 ; Garretson v. Becker, 52 111. App. 255 ; Russell v. 
 Chambers, 31 Minn. 54, 16 N. W. 458 ; Elder v. Warner (Sup.) 129 N. Y. Supp. 
 816; Dwire v. Stearns (N. D.) 172 N. W. 69; Tillotson v. Currin, 176 N. C. 
 
382 ' EIGHTS OF PABBNTS AND OF CHILDEHN (Ch. 10 
 
 parent of ot^ier children, whose morals may be corrupted by her ex- 
 ample." ^ 
 
 Some states, in recognition of the principle that the real grava- 
 men of the action is not the loss of service, but the wounded feel- 
 ings, mortification, and disgrace of the parent, have abolished, By 
 statute, the fiction of loss of service, and allow the parent to recover 
 without proof of such loss.^ In an interesting case the Supreme 
 Court of Kansas 'has held that, in view of the provisions of the 
 Code abolishing forms of action and feigned issues, the action 
 would lie by virtue of the parental relation alone, and this irrespec- 
 tive of the fact that the daughter had attained her majority.^ 
 
 As stated in treating generally of a parent's right of action for in- 
 juries to his child, the loss of services or expenses must be the prox- 
 imate result of the defendant's wrong, or the parent cannot recover. 
 The principle applies to action by a parent for the seduction or de- 
 bauching of his daughter. If the daughter, for instance, loses her 
 health, not as the direct result of the seduction, but because of men- 
 tal suffering caused by her abandonment by the seducer, shame re- 
 sulting from exposure, or other similar causes, and her ill health 
 results in the loss of her services to her father, or in medical or other 
 expenses, the loss to the father is too remote a consequence of the 
 seduction, and he cannot maintain an action.* .If, however, mental 
 distress or disease is the proximate result of the intercourse, as 
 where it is accomplished under circumstances of violence or fraud, 
 and impairment of health, and consequent expense or loss of serv- 
 
 479, 97 S. E. 395 ; Haeisslg v. Decker, 139 Minn. 422, 166 N. W. 1085 i Felk- 
 ner v. Scarlet, 29 Ind. 154; Phelin v. Kenderdlne, 20 Pa. 354; Hudkins v. 
 Haskins, 22 W. Va. 645; Klopfer v. Bromme, 26 Wis. 372; Dain v. WyckofE, 
 18 N. Y. 45, 72 Am. Dec. 493 ; Hatch v. Fuller, 131 Mass. 574 ; Parker v. Mon- 
 teith, 7 Oi-. 277 ; Emer^ v. Gowen, 4 Greenl] (Me.) 33, 16 Am. Dec. 233 ; Cook 
 V. Bartlett, 179 Mass. 576, 61 N. E. 266; Mlghell v. Stone, 175 111. 261, 51 
 N. E. 906, affirming 74 111. App. 129 ; Middleton v. Nichols, 62 N. J. Law, 686, 
 43 Atl. 575, Cooley Gas. Persons and Domestic Relations, 204. 
 
 1 Bedford v. McKowl, 3 Esp. 119. 
 
 2 Hein v. Holdrldge, 78 Minn. 468, 81 N. W. 522 (applying Gen. St. 1894, § 
 5163) 'Schmit v. Mitchell, 59 Minn. 251, 61 N. W. 140 (applying Gen. St. 1878, 
 c. 66, § 33) ; Stoudt v. Shepherd, 73 Mich. 588, 41 N. W. 696 (applying How. 
 Ann. St. 1882, § 7779) ; Anderson V. Auf)perle, 51 Or. 556, 95 Pac. 330 (apply- 
 ing B. & C. Comp. § 35). And see Fry v. Leslie, 87 Va. 269, 12 S. E. 671. 
 
 8 Anthony v. Norton, 60 Kan. 341, 56 Pac. 529, 44 L. K. A. 757, 72 Am. 
 St. Rep. 360 (applying Code Civ. Proc. §§ 6, 7, 116). But see Kaufman v. Clark, 
 141 La. 316, 75 South. 65, B. R. A. 1917E, 756. • 
 
 * Boyle V. Brandon, 13 Mees. & W. 738; Knight v. Wilcox, 14 N. Y. 413. 
 
§§ 135-137) ACTION FOE SEDUCTION OP DAUGHTER 383 
 
 ice to the father follow, the father may maintain an action. It is not 
 necessary that the intercourse shall have resulted in pregnancy or 
 sexual disease." Loss sustained in consequence of a venereal dis- 
 ease caused by the intercourse is not too remote.' 
 
 A parent may tnaintain an action for loss of the services of an 
 adult child, if the relationship of master and servant exists between 
 them. Under such circumstances an action will lie for seducing 
 or debauching an adult daughter, and thereby causing a loss of serv- 
 ices ; and the recovery may, as in the case of a minor daughter, in- 
 clude damages for wounded feelings, mortification, etc.^ In the 
 case of an adult child, however, the relationship of master and serv- 
 ant will not be implied, as in the case of a minor child, but it must 
 be shown that the relation actually existed.* Proof of any actual 
 service, however slight, has been held sufficient." And it has been 
 held that service may, be presumed where an adult daughter con- 
 tinues to live with her father.^" 
 
 Though the right to maintain an action for the seduction or de- 
 bauching of a child is primarily in the father,^^ it is not necessarily 
 limited to him. On his death or desertion, the action may be main- 
 
 5 Abrahams v. Kidney, 104 Mass. 222, 6 Am. E«p. 220 ; Van Horn v. Free- 
 man, 6 N. J. Law, 322, Manvell v. Thomson, 2 Car. & P. 303 ; Blagge v. Ilsley, 
 127 Mass. 191, 34 Am. Kep. 361 ; Briggs v. Evans, 27 N. C. 16. 
 
 6 "White V. Nellis, 31 N. Y. 405, 88 Am. Dec.! 282. 
 
 7 Bennett v. Allcott, 2 Term R. 166 ; Davidson v. Abbott, 52 Vt. 570, 36 
 Am. Rep. 767 ; Herring v. Jester, 2 Houst. (Del.) 66 ; Sutton v. Huffman, 32 
 N. J. taw, 58; Bayles v. Burgard, 48 111. App. 371; Mercer v. Walmsley, 
 5 Har. & J. (Md.) 27, 9 Am. Dee. 486; I^ee v. Hodges, 13 Grat (Va.) 726; 
 Vessel v. Cole, 10 Mo. 634, 47 Am. Dec. 136 ; Nickleson v. Stryker, 10 Johns. 
 (N. Y.) 115, 6 Am. Dec. 318; Thompson v. Millar, 1 Wend. (N. Y.) 447; Pat- 
 terson V. Thompson, 24 Ark. 55 ; Briggs v. Evans, 27 N. C. 21 ; Hartman v. 
 McCrary, 59 Mo. App. 571. 
 
 s Harper v. LufEkin, 7 Barn. & G. 387 ; Bartley v. Richtmyer, 4 N. Y. 38, 
 53 Am. Dec. 388 ; Parker v. Meek, 3 Sneed (Tenn.) 29 ; Nickleson v. Stryker, 
 10 Johns. (N. Y.) 115, 6 Am. Dec. 318 ; and cases cited in note 75, supra. 
 
 9 Beaudette v. Goyne, 87 Me. 534, 33 Atlx 23. And see Wallace v. Clark, 
 2 Overt. (Tenn.) 93, 5 Am. Dec. 654. See, also, cases cited above. 
 
 10 See Sutton v. Huffman, 32 IN. J. Law, 58 ; Brown v. Ramsay, 29 N. J. 
 Law, 118; Briggs v. Evans, 27 N. C. 21; Wilhoit v. Hancock, 5 Bush (Ky.) 
 567. See Hartman v. McCrary, 59 iilo. App. 571. In Palmer v. Baum, 123 
 111. App. 584, it was held that a father may recover (or loss of services of 
 an adult daughter, who, though married, was separated from her husband 
 and was a member of the father's family. 
 
 11 Mulvehall v. Millward, 11 N. Y. 243 ; Scarlett v. Norwood, 115 N. O. 284 
 20 S. E. 459. - ' 
 
384 BIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 tained by the mother.^'' And, generally, an action will lie by any 
 person who stands in loco parentis, and is therefore entitled to the 
 child's services.^^ 
 
 ACTION BY PARENT FOR ABDUCTING, ENTICING, OR 
 HARBORING CHILD. 
 
 138. A parent, or any one standing in loco parentis, has a right of 
 
 action for loss of services and incidental expenses against 
 one who abducts or wrongfully entices or harbors his child. 
 
 139. The same rules apply here as in the case of other injuries, as 
 
 to the necessity to show the actual or constructive rela- 
 tionship of master and servant. 
 
 The right of a parent to the custody and services of his minor 
 children gives hini a right of action against any one who abducts 
 or designedly entices his child away from him, or who harbors the 
 
 12 Ante, p. 355 ; Bedford v. MeKowl, 3 Esp. 119 ; Furman v. Van Sise, 56 
 N. Y. 435, 15 Am. Rep. 441; Heaps v. Dunham, 95 111. 583; Abrahams v. 
 Kidney, 104 Mass. 222, 6 Am. Kep. 220; Ellington v. Ellington, 47 Miss. 329; 
 Davidson v. Abbott, 52 Vt. 570, 36 Am. Eep. 767; Anthony v. Norton, 60 
 Kan. 341, 56 Pac. 529, 44 L. R. A. 757, 72 Am. St. Rep. 360 ; Gray v. Duiland, 
 50 Barb. (N. Y.) 100; Id., 51 N. Y. 424; Keller v. Donnelly, 5 Md. 211; Coon 
 V. Moteet, 3 N. J. Law, 583, 4 Am. Dec. 392 ; Hammond v. Corbett, 50 N. H. 
 501, 9 Am. Rep. 288; Matthewson v. Perry, 37 Conn. 435, 9 Am. Rep. 339. 
 But see South v. Denniston, 2 Watts (Pa.) 474. A wife may sue as next friend 
 of her insane husband for seduction of their daughter. Abbott v. Hancock, 
 123 N. C. 99, 31 S. E. 268. In Coon v. Moffet, 3 N. J. Law, 583, 4 Am. Dec. 
 392, it was held that an action might be maintained by the mother for the 
 seduction of her daughter during the father's lifetime, and while the daugh- 
 ter was in the constructive service of her father, where the mother after 
 the father's death, supported and cared for the daughter, paid her lying-in 
 expenses, and became entitled to and lost her services; the loss of services 
 being considered the gist of the action. And see Parker v. Meek, 3 Sneed 
 (Tenn.) 29. But see, contra, Logan v. Murray, 6 Serg. & R. (Pa.) 175, 9 Am. 
 Dec. 422 ; Vossel v. Cole, 10 Mo. 634, 47 Am. Dec. 136. 
 
 13 Ante, p. 356 ; Irwin v. Dearman, 11 East, 23 ; Manvell v. Thomson, 2 
 Car. & P. 303 ; Davidson v. Goodall, 18 N. H. 423 ; Keller v." Donnelly, 5 Md. 
 211 ; Ball v. Bruce, 21 111. 161 ; Tittlebaum v. Boehmcke, 81 N. J. Law, 697, 
 80 Atl. 323, 35 L. B. A. (N. S.) 1062, Ann. Cas. 1912D, 298; Maguinay v. 
 Saudek, 5 Sneed (Tenn.) 146 ; Bracy v. Kibbe, 31 Barb. (N. T.) 273 ; Inger- 
 soll V. Jones, 5 Barb. (N. Y.) 661. But see Bartley v. Richtmyer, 4 N. Y. 38, 
 53 Am. Dec. 338. The provisions of the Oregon statute .(B. & C. Comp. § 
 35) giving the father and mother the right to sue for seduction of daughter, 
 irrespective of right to services, does not afEect the common-law right of a 
 grandfather, in whose household the female lives, to sue for her seduction. 
 Anderson v. Aupperle, 51 Or. 556, 95 Pac. 330. 
 
§§ 138-139) ABDUCTING, ENTICING, OB HAKBORINQ CHILD 385 
 
 child, knowing that it has wrongfully left its home.^* The parent 
 may sue either in assumpsit or in tort.^" The action in assumpsit 
 is on the theory that the 'defendant has impliedly undertaken to pay 
 for the services of the child." The action in tort is the ordinary 
 action of trespass on the case for the wrong and the consequent 
 loss of the child's services." It has also been held that an action 
 will lie in trespass vi et armis, for the loss of the child's society, 
 without any allegation of loss of service." The intent of a person 
 harboring, a child who has run away from home is material. The 
 employment, in good faith, of a runaway child, without knowledge 
 that he has left his home wrongfully, is not a wrong.^^ 
 
 In an action for abducting, enticing, or harboring, the recovery 
 may include the expense to which the plaintiff has been put in re- 
 gaining the custody of the child.^" In such an action as this, the 
 gist of the action is the loss of the child's services, and the relation 
 
 "Evans v. Walton, L. R. 2 O. P. 615; Everett v. Sherfey, 1 Iowa, 356; 
 Butterfleld v. Ashley, 6 Gush. (Mass.) 249 ; Stowe v. Heywood, 7 Allen (Mass.) 
 118; Caughey v. Smith, 50 Barb. (N. Y.) 351; Moritz v. Garnhart, 7 Watts 
 (Pa.) 302, 32 Am. Dec. 762 ; Grand Rapids & I. R. Co. v. Showers, 71 Ind. 
 451 ; Thompson v. Howard, 31 Mich. 309 ; Selman v. Barnett, 4 Ga. App. 375, 
 61 S. E. 505; Vaughan v. Rhodes, 2 McCord (S. C.) 227, 13 Am. Dec. 713; 
 Magee v. Holland. 27 N. J. Law, 86, 72 Am. Dec. 341 ; Plummer v. Webb, 4 
 Mason, 380, Fed. Gas. No. 11,233 ; Sargent v. Mathewson, 38 N. H. 54. See 
 Loomls V. Deets (Md.) 30 Atl. 612. The action cannot be maintained by 
 the mother, if the father is alive and resides with her. Soper v. Igo, Walker 
 Co., 121 Ky. 550, 89 S. W. 538, 1 L. R. A. (N. S.) 362, 123 Am. St. Rep. 212, 
 11 Ann. Gas. 1171. 
 
 15 Thompson v. Howard, 31 Mich. 309. 
 
 16 Thompson v. Howard, 31 Mich. 309. 
 
 17 Evans v. Walton, L. R. 2 C. P. 615 ; Jones v. Tevis, 4 Litt. (Ky.) 25, 14 
 Am. Dec. 98 ; Sargent v. Mathewson, 38 N. H. 54 ; Noice v. Brown, 39 N. J. 
 Law, 569. 
 
 18 Kirkpatrick v. Lockhart, 2 Brev. (S. C.) 276 ; Vaughan v. Rhodeg, 2 Mc- 
 Cord (S. C.) 227, 13 Am. Dec. 713; Maghuson v. O'Dea, 75 W^sh. 574, 135 
 Pac. 640, 48 L. R. A. (N. S.) 327, Ann. Gas. 1915B, 1230. And see 3 Bl. Comm. 
 140. But see Jones v. Tevis, 4 Litt. (Ky.) 25, 14 Am. Dec. 98. In Washburn 
 V. Abrams, 122 Ky. 53, 90 S. W. 997, it was held that a parent may main- 
 tain an action for abduction and detention of a child, based on the principle 
 of the parent's right to the child's services, though the child renders no 
 services, in which recovery may be had for injury to feelings and for loss 
 of companionship of the child, ag well as loss of services. But no action 
 will lie for loss of love and afCection. Miles v. Cuthbert (Sup.) 122 N. Y. 
 Supp. 708. 
 
 19 Butterfleld v. Ashley, 6 Gush. (Mass.) 249 ; Caughey v. Smith, 47 N. T. 
 244 ; Kenney v. Baltimore & O. R. Co., 101 Md. 490, 61 Atl. 581, 1 L. R. A. 
 (N. S.) 205. Sargent v. Mathewson, 38 N. H. 54. 
 
 20 Magee v. Holland, 27 N. J. Law, 86, 72 Am. Dec. 341. 
 
 TIFF.P.& D.Rel.(3d Ed.)— 25 
 
386 RIGHTS OF PARENTS AND OF dHILDRBN (Ch. 10 
 
 of master and servant, actual or constructive, between the plaintiff 
 and the child, must be shown." A father, for instance, cannot 
 maintain an action for enticing away his son, whom he has suffer- 
 ed to remain under the custody of his mother, from whom he (the 
 father) is separated, and to be supported and employed by her." 
 The rules as to constructive service are the same in these as in 
 other cases. "^ 
 
 PARENT'S RIGHTS IN CHILD'S PROPERTY 
 
 140. Apart from his child's earnings a parent, as such, has no rights 
 in property acquired by his child. 
 
 Whatever property a child may acquire in any manner, except as 
 compensation for services rendered by him, belongs to him abso- 
 lutely, and the parent, as such, has no claim to it.^* "He has no title 
 to the property of the child, nor is the capacity or right of the lat- 
 ter to take propertjr or receive money by grant, gift, or otherwise, 
 except as a compensation for services, in any degree qualified or 
 limited during minority. Whatever, therefore, an infant acquires 
 which does not come to him as a compensation for services render- 
 ed, belongs absolutely to him, and his father cannot interpose any 
 claim to it, either as against the child, or as against third persons 
 who claim title or possession from or under the infant." '"' It fol- 
 lows from this that one who pays money belonging to a child to 
 his parent does so at his own risk, and will not be protected by the 
 parent's discharge.^^ A parent has no implied authority to compro- 
 mise or settle a cause of action of his infant child,^' nor can he, by 
 
 2iMa:gee v. Holland, 27 N. J. t^aw, 86, 72 Am. Dec. 341; Butterfidd v. 
 Ashley, 6 Cush. (Mass.) 249; Wodell v. Coggeshall, 2 Mete. (Mass.) 89, 35 
 Am. Dec. 391. 
 
 2 2 Wodell V. Coggeshall, 2 Mete. (Mass.) 89, 35 Am. Dec. 391. 
 
 28 Ante, p. 367. 
 
 24 Banks v. Conant, 14 Allen (Mass.) 497; Keeler v. Fassett, 21 Vt. 539, 52 
 Am. Dec. 71; Jackson v. Combs, 7 Cow. (N. Y.) 36; Hopkins v. Lee, 162 
 Iowa, 165, 143 N. W. 1002 ; Rhoades v. McNulty, 52 Mo. App. 301. 
 
 2 Banks v. Conant, 14 Allen (Mass.) 497. 
 
 "SDagley v. Tolferry, 1 P. Wms. 285; Perry v, Carmichael, 95 111. 519; 
 Clark V. Smith, 13 S. C. 585 ; Linton v. Walker, 8 Fla. 144, 71 Am Dec 105 ; 
 Brown v. State, 42 Ala. 540. 
 
 27 Missouri Pac. Ry. Co. v. Lasca, 79 Kan. 311, 99 Pac. 616, 21 L. R. A. 
 (N. S.) 338, 17 Ann. Gas. 605; Kirk v. Middlebrook, 201 Mo. 245, 100 S. W. 
 
§ 141) GIFTS, CONVEYANCES, AND CONTRACTS 387 
 
 reason of the relationship alone, accept payment of, and satisfy, 
 a judgment in favor of the child.''' 
 
 Where a child has not been emancipated, but is supported by his 
 parent, his services, as we have seen, belong to the parent. His 
 earnings from services rendered for another, without a gift of them 
 to him by the parent, stand on the same footing, and belong to the 
 parent. And so it is with property purchased with his earnings.'"' 
 What is given ;to a child by his parent in the way of support and 
 maintenance, and for purposes of education, as clothing, school 
 books, etc., belongs to the parent, and he may reclaim it, or recover 
 damages for its injury.^" But what is given, not in the way of 
 support and maintenance, but with the intention that it shall be- 
 come the property of the child, will become his.'^ And this is true 
 of a gift of his earnings.** 
 
 GIFTS, CONVEYANCES, AND CONTRACTS BETWEEN 
 PARENT AND CHILD '' 
 
 141. Gifts, conveyances, and contracts between parent and child 
 are as valid as if between strangers. But — 
 
 (a) A gift or conveyance from child to parent, or a contract ben- 
 
 eficial to the parent, is presumed to have been made under 
 parental influence, and to be voidable by the child, if made 
 before or shortly after attaining his majority; jmd the 
 parent must show that there was no undue influence. 
 
 (b) Gifts, conveyances, and contracts by a minor child are void- 
 
 able at his option, on the ground of infancy. 
 
 A gift from a parent to his child, accompanied by delivery, is as 
 valid as a gift between strangers.*' Delivery of a gift from a father 
 
 450; Leslie v. Proctor & Gamble Mfg. Co., 102 Kan. 159, 169 Pac. 193, L. K. 
 A. 19180, 55. 
 
 2 8 Paskewie v. East, St. L. & S. Ry. Co. 281 111. 385, 117 N. E. 1035, L. R. 
 A. 1918C, 52, reversing 206 111. App. 131. 
 
 29 Ante, p. 354. 
 
 3 Dickinson v. Winchester, 4 Cusli. (Mass.) 114, 50 Am. Dec. 760; Parme- 
 lee V. Smith, 21 111. 620 ; Prentice v. Decker, 49 Barb. (N. Y.) 21. 
 
 31 Wheeler v. St. Joseph & W. Ry. Co., 31 Kan. 640, 3 Pac. 297; Grangiac v. 
 Arden, 10 Johns. (N. Y.) 293 ; Dickinson v. Winchester, 4 Cush. (Mass.) 114, 
 50 Am. Dec. 760. 
 
 82 Morse v. Welton, 6 Conn. 547, 16 Am. Dec. 73 ; ante, p. 363. As to gilt 
 of earnings as against creditors, see ante, p. 357. 
 
 33 May T. May, 33 Beav. 81, 87 ; Sanborn v. Goodhue, 28 N. H. 48, 59 Am. 
 
:388 EIGHTS OF PAEENTS AND OF CHILDEBN (Ch. 10 
 
 to his child, when the property remains in the family, is often diffi- 
 cult to prove ; but, when the gift is in fact shown to have been fully 
 executed by delivery,^* it will be upheld. A child may likewise 
 make a valid gift to its parent, if the gift is not tainted with undue 
 parental influence. ''^ The same is true of conveyances between par- 
 ent and child.' ° And it is also true of contracts between them. 
 The relationship of parent and child imposes no disability upon 
 the parties to contract with each other. Their contracts, in the 
 absence of undue influence by the parent, are just as valid as con- 
 tracts between strangers. ''' 
 
 As will be seen in a subsecfuent chapter, an infant is not bound 
 1/ his contrac1;s, gifts, or conveyances if he chooses to avoid them 
 on attaining his majority; but the other party, being an adult, is 
 bound if the infant elects to hold him.'* The principles governing 
 contracts and conveyances by infants must apply to contracts and 
 conveyances between a parent and his minor child. 
 
 Because of the parental relation and the opportunity it affords 
 for the exercise of undue influence by the parent over the child, a 
 contract between parent and child, beneficial to the parent, or a 
 gift or conveyance by a child to his parent, made before or shortly 
 after the child has attained his majority, will be presumed to have 
 been the result of undue influence by the parent, and may be 
 avoided by the child, unless the parent shows that no undue in- 
 Dee. 398; Kellogg v. Adams, 51 Wis. 138, 8 N. W. 115, 37 Am. Rep. 815; 
 In re Acken's Estate, 144 Iowa, 519, 123 N. W. 187, Ann. Gas. 1912A, 1166; 
 Hawthorne v. Jenkins, 182 Ala. 255, 62 South. 505, Ajin. Gas. 1915D, 707; 
 Dodd V. McGraw, 8 Ark. 84, 46 Am. Dec. 301 ; Danley v. Rector, 10 Ark. 211, 
 50 Am. Dec. 242; Martrick v. Linfield, 21 Pick. (Mass.) 325, 32 Am. Dec. 
 265; Kerrigan v. Eautlgan, 43 Conn. 17; Pierson v. Heisey, 19 Iowa, 114; 
 Hlllebrant v. Brewer, 6 Tex. 45, 55 Am. Dec 757; Sims v. Sims' Adm'r, 8 
 Port. (Ala.) 449, 33 Am. Dec. 293. Where there is a donation from a parent 
 to the child, there is no presumption of undue influence. Neal v. Neal, 155 
 Ala. 604, 47 South. 66 ; Sanders v. Gurley, 153 Ala. 459, 44 South. 1022. 
 
 8* See cases above cited. It requires less positive evidence to establish a 
 delivery of a gift from a father to his children than it does between l>ersons 
 who are not related. Jenning v. Rohde, 99 Minn! 335, 109 N. W. 597. 
 
 35 Note, 39, infra. 
 
 8 8 Taylor v. Staples, 8 R. I. 170, 5 Am. Rep. 556; Kennedy v. McCann, 101 
 Md. 643, 61 Atl. 625 ; Powers v. Powers, 46 Or. 479, 80 Pac. 1058 ; Jenning 
 V. Rohde, 99 Minn. 335, 109 N. W. 597; Becker v. Schwerdtle, 6 Gal. App. 
 462, 92 Pac. 398. A deed by a father to his bastard son is valid Hall v 
 Hall, 82 S. W. SCO, 26 Ky. Law Rep. 610. 
 
 87 Abbott V. Gonverse, 4 Allen (Mass.) 530; Hall v. Hall 44 N H 293- 
 Steel v. Steel, 12 Pa. 64. , . . , 
 
 38 Post, p. 495. 
 
§ 141) GIFTS, CONVEYANCES, AND CONTRACTS 389 
 
 fluence was exercised, and that the child acted freely and with a 
 full knowledge of all material facts.^" The presumption of undue 
 influence from parental relations does not cease as soon as the child 
 becomes of age. It continues until there is such a complete eman- 
 cipation that the judgment of the child is under no control. In 
 Bergen v. Udall,*" a daughter, soon after reaching her majority, 
 made a voluntary conveyance for the benefit of her father. "A 
 transaction like the present," said the court, "will be examirfed by 
 the court with the ftiost jealous scrutiny and suspicion. The per- 
 son relying upon it must show affirmatively, not only that the per- 
 son who made it understood its nature and effect, and executed 
 it voluntarily, but that such will and intention was not in a;ny de- 
 gree the result of misrepresentation or mistake, and was not in- 
 duced by the exertion, for selfish purposes, and for his own ex- 
 clusive benefit, of the influence and control which he possessed as 
 a father over his daughter." *^ 
 
 It has already been seen that a parent may relinquish his right 
 to the services of his minor child, and that he may bind himself by 
 an agreement to compensate the child for his services.*" Because 
 of the relationship, however, there is a presumption that no com- 
 pensation was intended ; and the child must show affirmatively that 
 there was an agreement for compensation.*^ The same is true 
 
 89 Clark, Cont 367, and cases there cited; Wright v. Vanderplank, 8 De 
 Gex, M. & G. 133 ; Archer v. Hudson, 7 Beav. 551 ; Hoghton v. Hoghton, 15 
 Beav. 278 ; Savery v. King, 5 H. L. Gas. 627 ; Miller v. Simonds, 72 Mo. 669 ; 
 Bergen v. Udall, 31 Barb. (N. T.) 9 ; Taylor v. Taylor, 8 How. 183, 12 L. Ed. 
 1040; Betz v. LoveU, 197 Ala. 239, 72 South.. 500; Cooley v. Stringfellow, 
 164 Ala. 460, 51 South. 321; Pevehouse v. Adams, 52 Okl. 495, 153 Pac. 65; 
 Berkmeyer v. Kellerman, 32 Ohio St. 239, 30 Am. Bep. 577 ; Ripple v. Kuehne, 
 100 Md. 672, 60 Atl. 464; BIGHMY v. BROCK, 126 Iowa, 535, 102 N. W. 444, 
 Cooley Cas. Persons and Domestic Relations, 206. But the rule will not be 
 applied to defeat a gift or contract, merely because of the relation. Giers 
 V. Hudson, 102 Ark. 232, 143 S. W. 916 ; Turner v. Turner, 31 Okl. 272, 121 
 Pac. 616. 
 
 *0 31 Barb. (N. Y.) 9. 
 
 41 See, also, Williams v. Canary, 249 Fed. 344, 161 C. C. A. 352, where It 
 was said that, while equity will closely scan a contract between parent and 
 child, entered into shortly after the child attained his majority, yet such 
 contract is not prima facie void, and if not unconscionable, and if made with 
 complete understanding on the part of the child, it will not be declared void. 
 
 42 Ante, p. 858, and cases there cited. And see Officer v. Swindlehurst 41 
 Mont. 126, 108 Pac. 583. 
 
 *3 Clark, Cont. 28, and cases there cited ; Bantz v. Bantz, 52 Md. 693 ; Hef- 
 fron V. Brown, 155 111. 322, 40 N. E. 588 ; Faloon v. Mclntyre, 118 111. 292, 
 8 N. E. 315 ; Miller v. Miller, 16 111. 296. 
 
390 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 where a child who has attained his majority continues to live with 
 his parents, and to render services as during his minority. The 
 presumption is that the services were intended to be gratuitous, 
 and the burden is ofi the child to show that both parties intended 
 that compensation should be made.** A like rule applies where a 
 parent seeks to recover as on a contract with a child for support 
 or maintenance.*^ 
 
 ADVANCEMENTS 
 
 142. Gifts of real or personal property from parent to child, in an- 
 
 ticipation of the child's share of the parent's estate under 
 statutes of distribution, are known as "advancements." 
 
 143. The expenses of maintenance and education, and inconsidera- 
 
 ble gifts, are not advancements ; but if is prima facie other- 
 wise with gifts made to start a child in business or a pro- 
 fession, or to make a provision for him, and other sub- 
 stantial gifts. 
 
 When a parent makes a gift to any of his children, either out of 
 his real or his personal estate, in anticipation of the child's share 
 of his estate, the gift is known as an advancement, and will be 
 taken into consideration in the distribution of the estate in case of 
 intestacy.*" The doctrine of advancement applies in the case of 
 the distribution of intestate estates, under the statute of distribution 
 in England (St. 22 & 23. Car. II. c. 10),*' and under similar statutes 
 in the various states of, this country.*' 
 
 Not every gift from parent to child will be considered as an ad-/ 
 vancement. Payments made for the ordinary expenses of mainte- 
 nance arid education are not advancements, nor are gifts of money 
 
 44Ulark, Cont. 28; Dye v. Kerr, 15 Barb. (N. T.) 444; Pellage v. Pellage, 
 32, Wis. 136; Hosteller's Appeal, 30 Pa. 473; Fitch v. Peckliam, 16 Vt. 150; 
 Young V. Herman, 97 N. C. 280, 1 S. B. 792; Freeman v. Freeman, 65 111. 
 106; riaU v. Hall, 44 N. H. 293. 
 
 45 See Olark, Cont. 28. 
 
 *3 Abb. Desc. Wills & Adm. 10, 138; 4 Kent, Comm. 417, 418; Grattan v. 
 Grattan, 18 111. 167, 65 Am. Dec. 726 ; Wallace v. Eeddick, 119 111. 151, 8 N. 
 B. 801 ; Brunson' v. Henry, 140 Ind. 455, 39 N. E. 256 ; Murphy v. Murphy, 95 
 Iowa, 271, 63 N. W. 697. 
 
 *' Edwards v. Freeman, 2 P. Wms. 435; Walton v. Walton, 14 Ves. 318. 
 
 48 Marshall v. Rench, 3 Del. Ch. 239; Huggins v. Hugglns, 71 Ga. 66; Bee- 
 be V. Estabrook, 79 N. Y. 246; Grattan v. Grattan, 18 IlL 167, 65 Am. Dec. 
 726. 
 
§§ 142-143) ADVANCEMENTS 391 
 
 for current expenses, or inconsiderable presents.*' But payments 
 made to enable a child to enter a profession, or to start him in busi- 
 ness, are prima facie deemed advancements, such as the admission 
 fee to one of the inns of court, the cost of a commission in the 
 army, or the purchase of the good will and stock ir; trade of a 
 business. '"' And in all other cases, when substantial payments of 
 money have been made to a child, or he has received real or per- 
 sonal property of considerable value, the presumption is that they 
 have been given him by way of advancements. "If, Jn the absence 
 of evidence, you find a father giving a large sum in one payment, 
 there is a presumption that that is intended to start him in life, or 
 make a provision for him." "^ 
 
 The presumption that a voluntary conveyance from a parent to 
 a child is intended as an advancement is based on the supposition 
 that he intends to treat his children equally ; and if anything shows 
 a purpose to discriminate between children, the presumption that 
 the conveyance is an advancement is overthrown. ^^ 
 
 *9 Taylor v. Taylor, L. R. 20 Eq. 155; Cooner v. May, 3 Strob. Bq. (S. C.) 
 185 ; In re Riddle's Estate, 19 Pa. 431 ; Bradsh^i* v. Oannady, 76 N. C. 445 ; 
 Bowles V. Winchester, 13 Bush (Ky.) 1; Elliot v. Collier, 1 Ves. Sr. 16; 
 Sanford v. Sanford, 61 Barb. (N. Y;) 293 ; Mitchell's Distributees v. Mitchell's 
 Adm'r, 8 Ala. 414; In re King's Estate, 6 Whart. (Pa.) 370; Meadows v. 
 Meadows, 33 N. C. 148. 
 
 6 Taylor v. Taylor, L. R. 20 Eq. 155^ Boyd v. Boyd, Ti. R. 4 Eq. 305; 
 Bruce v. Griscom, 9 Hun (N. Y.) 280; Ison v. Ison, 5 Rich. Bq. (S. C.) 15; 
 McCaw V. Blewit, 2 McCord, Eq. (S. C.) 90 ; Shiver v. Brock, 55 N. C. 137. 
 
 51 Taylor v. Taylor, L. R. 20 Eq. 155. And see Sanford v. Sanford, 61 
 Barb. (N. Y.) 293 ; Graves v. Spedden, 46 Md. 527 ; Gordon v. Barkelew, 6 
 N. J. Eq. 94; Hatch v. Straight, 3 Conn. 31, 8 Am. Dec. 152; Hodgson v. 
 Macy, 8 Ind. 121 ; Aylor v. Aylor (Mo.) 186 S. W. 1068 ; Cowden v. Cowden, 
 28 Ohio Cir. Ct. R. 71; Taylor v. Taylor, 4 Gilman (111.) 303; Maxwell v. 
 Maxwell, 109 111. 588 ; Sampson v. Sampson, 4 Serg. & R. (Pa.) 329 ; Watkins 
 
 ■' V. Young, 31 Grat. (Va.) 84; Murphy v. Murphy, 95 Iowa, 271, 63 N. W. 697; 
 PhUUps' V. Phillips, 90 Iowa, 541, 58 N. W. 879 ; Roberts v. Coleman, 37 W. 
 Va. 143, 16 S. E. 482; Gulp v. Wilson, 133 Ind. 294, 32 N. B. 928; New v. 
 New, 127 Ind. 576, 27 N. B. 154; Reynolds' Adm'r v. Reynolds, 92 Ky. 556, 
 18 S. W. 517; McClanahan v. McClanahan, 36 W. Va. 34, 14 S. E. 419; 
 Kemp V. Cossart, 47 Ark. 62, 14 S. W. 465. Insurance by a father on his life 
 in the name of a son was held an advancement in Oazassa v. Cazassa, 92 
 Tenn. 573, 22 S. W. 560, 20 L. R. A. 178, 36 Am. St. Rep. 112. Of course, the 
 presumption may always be rebutted by showing that a gift or payment for 
 services was intended, or that other consideration was given by the child. 
 See Hattersley v. Bissett, 51 N. J. Eq. 597, 29 Atl. 187, 40 Am. St. Rep. 532; 
 Beakhust v. Crumby, 18 R. I. 689, 30 Atl. 453, 31 Atl. 753 ; Hall v. Hall, 107 
 Mo. 101, 17 S. W. 811; Groom v. Thomson (Ky.) 16 S. W. 369, 13 Ky. Law 
 Rep. 223; Comer v. Comer, 119 111. 170, 8 N. B. 796. 
 
 52 Plowman v. Nicholson, 81 Kan. 210, 106 Pac. 279. 
 
392 EIGHTS OF PARENTS AND OF CHILDREN (Ch. 10 
 
 DUTY OF CHILD TO SUPPORT PARENTS 
 
 144. A child is under no legal obligation to support his parents, un- 
 less the duty is imposed by statute. 
 
 A child is under no legal obligation at common law to support 
 his parents, even though they are destitute and infirm. There is 
 a strong moral obligation," but no such duty is recognized by the 
 law, unless, as is the case in some jurisdictions, the duty is ex- 
 pressly imposed by statute.^^ While they are entitled to the child's 
 wages during its minority, the relation which the child bears to 
 them imposes no legal duty of maintenance, and no promise on the 
 part of the child to pay even for necessaries furnished them will be 
 implied.^* If the children live with their parents, the earnings of 
 all going into a common fund for the support of the household, 
 and the father has not promised to repay the son for any contribu- 
 tion made to the father's support, no implied promise arises.°° 
 
 DOMICILE OF CHILD 
 
 145. The child's domicile of origin is determined by the domicile 
 of the father if the child is legitimate, and by the domicile 
 of the mother if illegitimate. The child's domicile chang- 
 es with the father's, or with the mother's, if a widow, un- 
 less she remarries. 
 
 esDufEy v. Yordi, 149 Cal. 140, 84 Pac. 838, 4 L.R. A. (N. S.) 1159, 117 
 Am. St. Kep. 125, 9 Ann. Cas. 1017; Tobin v. Bruce, 39 S. D. 64, 162 N. W. 
 933, certiorari denied Bruce v. Tobin, 245 U. S. 18, 38 Sup. Ot. 7, 62 L. Ed. 
 123. Generally, a mode of enforcing such liability is prescribed by the stat- 
 ute. If no mode is provided, one who maintains a person within the terms 
 of the statute, whose son, though able, neglected and refused to maintain 
 him, may recover therefor from the son. McCook County v. Kamnoss, 7 S. 
 D. 558, 64 N. W. 1123, 31 L. R. A. 461, 58 Am. St. Rep. 854 ; Howe v. Hyde, 
 88 Mich. 91, 50 N. W. 102. Under the lUinois statute (Hurd's Rev. St. 1908, 
 c. 107, § 1), requiring children to support their infirm and indigent parents, a 
 right of action does not accrue to the parent himself to enforce the act. 
 Schwerdt v. Schwerdt, 141 111. App. 386, affirmed 235 111. 386, 85 N. B. 613. 
 
 6 4 Rex V. Munden, 1 Strange. 190; Lebanon v. Griffin, 45 N. H. 558; Ed- 
 wards V. Davis, 16 Johns. (N,. Y.) 281 ; Becker v. Gibson, 70 Ind. 239 ; Stone v. 
 Stone, 32 Conn. 142. 
 
 " Cotter V. Cotter, 82 Conn. 331, 73 Atl. 903. See, also, Millis v. Thayer, 
 139 Wis. 480, 121 N. W. 124. 
 
§ 145) DOMICILE OF CHILD 393 
 
 The domicile of a legitimate child is originalh' that of its father, 
 and, where the parent changes his domicile, the child's domicile 
 changes with it.°° The mother's domicile acquired after her hus- 
 band's death determines that of the child," but the child's domicile 
 will not follow the mother's in case of her remarriage, but con- 
 tinues to be the same as it was on the death of the father." An 
 infant, not being sui juris, cannot acquire a domicile of his own,°° 
 though, for the purpose of obtaining a settlement, a pauper, after 
 emancipation, has been held capable of acquiring an independent 
 domicile." " 
 
 6 6 Somerville v. Somerville, 5 Ves. 750; Sharpe v. Crispin, L. E. 1 Prob. 
 & Div. 611 ; Taylor v. Jeter, 33 Ga. 195, 81 Am. Dec. 302 ; Daniel v. Hill, 52 
 Ala. 430. As to domicile of an illegitimate child, see ante, p. 305. A person 
 standing In loco parentis to a child may change its domicile. In re Vance, 92 
 Cal. 195, 28 Pac, 229; Cox v. Boyce, 152 Mo. 576, 54 S. W. 467, 75 Am. St. 
 Rep. 483. 
 
 5 7 Potinger v. Wightman, 3 Mer. 67; Johnstone v. Beattie, 10 Clark. & F. 
 42 ; LAMAK v. MICOU, 112 U. S. 452, 470, 5 Sup. Ct. 221, 28 .L. Ed. 751, 
 Cooley Cas. Persons and Domestic Relations, 230 ; Ryall v. Kennedy, 40 N. 
 T. Super. Ct. 347 ; Carlisle v. Tuttle, 30 Ala. 613. , 
 
 5s Cumner Parish v. Milton Parish, 3 Salk. 259; Potinger v. Wightman, 
 a Mer. 67; LAMAR v. MICOU, 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751, 
 Cooley Cas. Persons and Domestic Relations, 230; Brown v. Lynch, 2 Bradf. 
 Sur. (N. Y.) 214; Johnson v. Copeland's Adm'r, 35 Ala. 521; Inhabitants of 
 Freetown v. Inhabitants of Taunton, 16 Mass. 52. 
 
 ^^ Somerville v. Somerville, 5 Ves. 750 ; Brown v. Lynch, 2 Bradf. Sur. (N. 
 Y.) 214; Lacy v. Williams, 27 Mo. 280; Taylor v. Jeter, 33 Ga. 195, 81 Am. 
 Dec. 302. 
 
 60 Inhabitants of Charlestown v. Inhabitants of Boston, 13 Mass. 469; Over- 
 seers of Washington Tp. v. Overseers of Beaver Tp., 3 Watts & S. (Pa.) 548 ; 
 Inhabitants of Dennysville v. Inhabitants of Trescott, 30 Me. 470. 
 
PART III 
 GUARDIAN AND WARD 
 
 CHAPTER XI 
 
 GUARDIANS DEFINED— SELECTION AND APPOINTMENT 
 
 146-147. In General. 
 
 148. Nntural Guardians. 
 
 149. Gnardians in Socage. 
 
 150. Testamentarj' Guardians. 
 
 151. Chancery Guardians. 
 
 152. Statute Guardians. 
 
 153. Quasi Guardians, or Guardians by Estoppel. 
 
 154. Guardians of Persons Non Compotes Mentis. 
 
 155. Guardians Ad Litem. 
 
 156-158. Selection and Appointment of Guardians by Court. 
 159. Jurisdiction to Appoint Guardian. 
 
 IN GENERAL 
 
 146. A guardian is one to whom the law intrusts the persons or 
 
 estates, or both, of those who, by reason of their infancy 
 or of mental infirmities, are not sui juris. Persons under 
 guardianship are called "wards." 
 
 147. The various kinds of guardians are 
 
 (a) Natural guardians. 
 
 (b) Guardians in socage. 
 
 (c) Testamentary guardi&ns. 
 
 (d) Chancery guardians. 
 
 (e) Statute guardians. 
 
 (f) Quasi guardians or guardians by estoppel. 
 
 (g) Guardians of persons non compotes mentis or spendthrifts, 
 (h) Guardians ad litem. 
 
 Guardianship is a trust which is dual in its nature, involving 
 two distinct and separate functions — the' control of the person of 
 the ward, and the management of his estate.^ Guardians are there- 
 
 1 United States v, Hall (D. C.) 171 Fed. 214. 
 
 (394) 
 
§ 148) NATURAL GUARDIANS 395 
 
 fore divided into two classes — guardians of the person, called in 
 the civil law "tutors," and guardians of the estate, called in the 
 civil law "curators." These civil-law terms are in use in Louisi- 
 ana.^ A guardian of the person is one who is lawfully invested - 
 with the care of the person of the ward. A guardian of the estate 
 is one who has been lawfully invested with the power of taking 
 care, of and managing the estate of an infant. Guardians may also 
 be divided as stated in the black-letter text. Some of them have 
 charge, of the person of the ward only, while others have charge 
 of his estate only, and others have charge both of the person and 
 estate. A guardian ad litem is a guardian merely for the purpose of 
 a suit. 
 
 NATURAL GUARDIANS 
 
 148. The father, or, if he is dead, the mother, or, if both are dead, 
 the next of kin is the natural guardian of a child. A 
 natural guardian is a guardian of .the ward's person only. 
 
 At common law there was what was known as a "guardian by 
 nature." This guardianship related only to the person of the heir 
 apparent, and vested first in the father, and then in the mother. It 
 is now obsolete.^ There was also a guardianship for nurture, which 
 related to the person, but applied only to the younger children.* 
 These two forms of guardianship are now replaced by the natural 
 guardianship of the parent, or next of kin, if the parents are dead. 
 The father is entitled to the custody of his own children during 
 their infancy, not only as guardian by nurture, but by nature.^ 
 On the death of the father, guardianship by nature passfes to the 
 mother, and, on her death, to the grandfather or grandmother or 
 any other person who is next of kin." Prima facie, the natural 
 
 2 The term "curator" Is also used in some other states. The term sig- 
 nifies one who has charge only of the property or estate of the ward, as 
 distinguished from "guardian," who has charge only of the person, or both 
 the person and estate. Burger v. Frakes, 67 Iowa, 460, 23 N. W. 746, 25 N. 
 W. 735. 
 
 3Macph. Inf. 57; 2 Kent, Oomm. 221. 
 
 *Macph. Inf. 60; 2 Kent, Comm. 221. 
 
 5 Ex parte Hopkins, 3 P. Wins. 152 ; In re Galleher, 2 Oal. App. 364, 84 
 Pae. .352; Kingsftad v. Hanson, 150 Iowa, .324, 130 N. W. 145; In re Knott, 
 162 Mich. 10, 126 N. W. 1040; In re Wright, 79 Neb. 10, 112 N. W. 311. 
 
 « Harg. Co. Litt. 88b, note 12 ; Lamar v. Micou, 114 V. S. 218, 5 Sup. Ct. 
 857, 29 L. Ed. 94; Holmes v. Derrig, 127 Iowa, 625, 103 N. W. 973; In re 
 Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Rep. 546; Smith v. Young, 136> 
 
396 GUARDIANS DEFINED SELECTION AND APPOINTMENT (Ch. 11 
 
 guardian is entitled to the custody of the child; but there are ex- 
 ceptions to the rule, resulting from the doctrine that the child's 
 welfare must be considered in awarding his custody. This ques- 
 tion has been fully explained in treating of the relation of parent 
 and child.'' The natural guardian of a child has control of his 
 person only. He has no authority or responsibility, as such, in 
 regard to the child's property.' 
 
 GUARDIANS IN SOCAGE 
 
 149. Guardianship in socage was where an infant acquired by de- 
 scent land held in socage. The next of kin who could not 
 possibly inherit became guardian and had authority over 
 the person of the infant as well as the land, and over 
 personal property connected with it, but not over other 
 personalty. On reaching the age of 14, the infant could 
 elect his own guardian, and terminate the guardianship. 
 This kind of guardianship is obsolete at common law, but 
 there is a similar guardianship by statute in some juris- 
 dictions. 
 
 "At the common law, if lands held in socage came to an infant 
 by descent, his nearest relative who could not by any possibility 
 inherit the lands was his guardian in socage until the age of four- 
 teen, and until the infant selected a guardian for himself. Such 
 guardian might lawfully receive the rents and profits of the land 
 during the continuance of the guardianship. If the lands descend- 
 ed from the father or other paternal relatives, the mother, or next 
 of kin on the part of the- mother, was the guardian ; and, if the 
 lands descended on the part of the mother, the father, or next of 
 
 Mo. App. 65, 117 S. W. 628 ; Darden v. Wyatt, 15 Ga. 414. In the Philippine 
 Islands the wife is natural guardian of her children on death of husband, but 
 this terminates upon her remarriage. Palet v. Aldecoa Co., 15 Phil. Rep. 232. 
 
 'Ante, p. ■343. 
 
 8 2 Kent, Oomm. 220 ; Williams v. Cleaveland, 76 Conn. 426, 56 Atl. 850 ; 
 Hyde v. Stone, 7 Wend. (N. Y.) 354, 22 Am. Dec. 582; Kline v. Beebe, 6 
 Conn. 494; Perry v. Carmichael, 95 111. 519; Kendall v. Miller, 9 Gal. 591; 
 Otto V. Schlapkahl, 57 Iowa, 226, 10 N. W. 651 ; Ringstad v. Hanson, 156 
 Iowa, 324, 130 N. W. 145 ; Vineyard v. Heard (Tex. Civ. App.) 167 S. W. 22 ; 
 Alston V. Alston, 34 Ala. 15 ; Linton v. Walker, 8 Fla. 144, 71 Am. Dec. 105 ; 
 May V. Oalder, 2 Mass. 55; Miles v. Boyden, 3 Pick. (Mass.) 213; Johnson's 
 Adm'r v. Johnson's Ex'r, 2 Hill, Bq. (S. C.) 280, 29 Am. Dec. 72; ante, p. 386"; 
 Palet V. Aldecoa Co., 15 Phil. Rep. 232. But in Louisiana the natural tutrix 
 
§149) GUARDIANS IN SOCAGE 397 
 
 kin on the paternal side, was entitled to the guardianship." " It 
 has been held that there could be no guardianship in socage where 
 the infant acquired the lands by purchase, and not by descent.^" 
 To insure the safety of the ward, the guardianship was given by 
 the law to the next of kin who could not possibly inherit the lands, 
 for the guardianship extended over the person of the ward as well 
 as the land.^^ On reaching the age of 14 the infant could terminate 
 the guardianship, and elect his own guardian.^ ^ Guardianship in 
 socage, as stated above, extended over the person of the ward, as 
 well as over the real estate; ^' and it extended over personalty con- 
 nected with the real estate, but not over choses in action and other 
 personal property.^* 
 
 Guardianship in socage was an incident of the feudal system ex- 
 isting in England under the common law of real property. It has 
 fallen into disuse there, and it was never common in this country. 
 In New York, and perhaps in other states, there is a somewhat 
 similar guardianship known as "guardianship in socage." The Re- 
 vised Statutes of New York provide: "Where an estate in lands 
 shall become vested in an infant, the guardianship of such infant, 
 with the rights, duties, and powers of a guardian in socage, shall 
 belong (1) to the father of the infant; (2) if there be no father, to 
 the mother; (3) if there be no father or mother, to the nearest and 
 eldest relative of full age, not being under any legal incapacity, and, 
 as between relatives of the same degree of consanguinity, male shall 
 be preferred." ^^ The guardianship thus created is like the guard- 
 ianship in socage at common law, except that it continues until 
 the infant reaches the a^e of 21 ; and relatives who can inherit from 
 the infant are not excluded, and it makes no difference how the 
 land was acquired.^" 
 
 may take possession of property and convert it for the ward's benefit. Hog- 
 gatt V. Morancy, 10 La. Ann. 169. 
 
 8 Combs V. Jackson, 2 Wend. (N. Y.) 153, 19 Am. Dec. 568. See 1 Bl. Comm. 
 461; 2 Kent, Comm. 221. 
 
 10 Combs V. Jackson, 2 Wend. (N. Y.) 153, 19 Am. Dec. 568; Quadring v. 
 Downs, 2 Mod. 176. 
 
 11 Co. I/itt. § 123; 2 Kent, Comm. 222; Fonda v. Van Home, 15 Wend. (N. 
 Y.) 631, 30 Am. Dec. 77. 
 
 12 Co. JAtt. § 123. 
 
 13 Co. Litt. § 123 ; Com. Dig. 'Guardian," B ; 2 Kent, Comm. 221. 
 
 1* Foley V. Mutual Life Ins. Co., 138 N. Y. 333, 84 N. E. 211, 20 L. R. A. 
 620, 34 Am. St. Rep. 456. 
 
 134 Rev. St. N. Y. (8th Ed.) pt. 2, c. 1, tit. 1, art. 1, § 5. 
 
 18 Foley V. Mutual Life Ins. Co., 138 3Sf. Y. 333, 34 N. E. 211, 20 L. R. A. 
 
398 GUARDIANS DBFINHD— SBLBOTION AND APPOINTMENT (Ch. 11 
 
 TESTAMENTARY GUARDIANS 
 
 150. By statute, a father, and in some states a mother, on his death, 
 may, generally by will, and in some states by deed, appoint 
 a guardian for a minor child. Such a guardianship extends 
 to the person, and to the real and personal property, of the 
 ward, and continues until the ward's majority. 
 
 Testamentary guardianship was created by the statute of 12 Car. 
 II. c. 24, the provisions of which have been substantially enacted in 
 many of the states in this country. It was provided by that statute 
 that the father of minor children could "by deed executed in his life- 
 time, or by his last will and testament in writing," dispose of their 
 fcustody and tuition. Under this statute, the father alone could ap- 
 point,^' and he could do so though himself a minor. In this coun- 
 try the statutes of the diflEerent states contain various, but not uni- 
 form, changes.^* In some states the appointment can only be made 
 by will, and in some the mother, after the death of the father, suc- 
 ceeds to his power, if she is unmarried.^® It is sufficient for the 
 appointment of a testamentary guardian that the intention to ap- 
 point is clear, although there is no express designation as such in 
 the will, provided that the powers essential to the office are con- 
 ferred.^" The authority is derived from the appointment, and re- 
 quires no confirmation by the court,''^ nor even by the probate of 
 
 620, 34 Am. St. Rep. 456 ; Fonda v. Van Home, 15 Wend. (N. T.) 631, 30 Am. 
 Dec. 77. See, also, In re Wagner, 75 Misc. Rep. 419, 135 N. T. Supp. 678. 
 
 17 See, also, the Morlda statute (Rev. St. 1892, § 2086); Hernandez v, 
 Thomas, 50 Fla. 522, 39 South. 641, 2 L. R. A. (N. S.) 203, 111 Am. St. Rep. 
 137, 7 Ann. Cas. 446. 
 
 lain re Kellogg, 110 App. Div.( 472, 96 N. T. Supp. 965; Blacksher v. 
 Northrup, 176 Ala. 190, 57 South'. 743, 42 L. R. A. (N. S.) 454 ; In re Allen's 
 Estate, 162 Oal. 625, 124 Pac. 237; Ingalls v. Campbell, 18 Or. 461, 24 Pac. 
 904. Testamentary guardianship is not authorized in Iowa. In re O'Con- 
 nell's Guardianship, 102 Iowa, 355, 71 N. W. 211. 
 
 18 In re Kellogg, 110 App. Dlv. 472, 96 N. Y. Supp. 965; In re Waring's 
 Will, 46 Misc. Rep. 222, 94 N. Y. Supp. 82. Father cannot appoint guardian 
 by will if mother is living. Campbell v. Mansfield, 104 Miss. 533, 61 South. 
 593, 45 L. R. A. (N. S.) 446. Necessity of mother's consent. In re Snow- 
 ball's Estate, 156 Cal. 240, 104 Pac. 444. 
 
 2 Bridges v. Hales, Mos. 108; Miller v. Harris, 14 Sim. 540; Corrigan v. 
 Kiernan, 1 Bradf. Sur. (N. Y.) 208; Southern Marble Co. v. Stegall, 90 Ga. 
 236, 15 S. E. 806; In re Hawley, 104 N. Y. 250, 10 N. E. 352; Balch v. Smith,, 
 12 N. H. 437. 
 
 aiNorris v. Harris, 15 Cal. 226; Southern Marble Co. v. Stegall, 90 Ga. 
 236, 15 S. E. 806. ' 
 
§ 151) CHANOEHT GUAEDIANS 399 
 
 the will; '^ and, when such power has been exercised by the testa- 
 tor, the court has no jurisdiction to appoint a different guardian.^^ 
 By statute, such appointment is sometimes made subject to the pro- 
 bate of the will, and also the approval of the court and the giving of 
 a bond. The ofRce is one of personal trust, and is not assignable.^* 
 Testamentary guardianship extends to the person, and to the real 
 and personal estate, of the child, and it continues until the ward ar- 
 rives at full age.^" The statute of Charles II. does not confer upon 
 the father power to appoint a guardian for his illegitimate child, 
 nor can he delegate any such power to a third person.^* It is the 
 practice of the courts to adopt the nomination of a guardian by a 
 putative father of a natural child, in cases where he has left an es- 
 tate, and the person nominated is in all respects proper; but this 
 is simply in deference to the wishes of the deceased, and not as a 
 matter of right which the court is bound to respect..^^ 
 
 In Texas, it has been held that the statutes of that state provid- 
 ing for the continuaaice in office of a guardian, and for the appoint- 
 ment of his successor, exclude the idea of another being appointed 
 to succeed him before his removal ; and, therefore, that a person ap- 
 pointed, by the will of a father (or, as in this case, a mother), guard- 
 ian of the estate of a minor child, is not entitled to letters of guardi- 
 anship while, another guardian, appointed at the father's request in 
 his lifetime, is qualified to act.^' 
 
 CHANCERY GUARDIANS 
 
 151. Courts of chancery, in the absence of statutory limitations, 
 have jurisdiction to appoint guardians of the persons and 
 estates of infants. 
 
 22 GilUat V. GUliat, 3 Phlllim. Bee. 222. 
 
 23Copp V. Copp, 20 N. H. 284; Robinson v. Zollinger, 9 Watts (Pa.) 169. 
 
 24 Eyre v. Countess of Shaftsbury, 2 P. Wms. 102; In re Moore, 11 Ir. 
 ■Coin. Law, 1; Balch v. Smith, 12 N. H. 437. 
 
 2 5 In re Sheetz's Estate, 6 Pa. Dist. B. 367. See, also, In re Grimes' Es- 
 tate, 79 Mo. App. 274 ; In re Kellogg, 110 App. Div. 472, 96 N. T. Supp. 965. 
 But see Churchill v. Jackson, 132 Ga. 666, 64 S. E. 691, 49 L. R. A. (N. S.) 
 875, Ann, Oas. 1913E, 1203, where appointment was limited to care of estate. 
 
 26 Ramsay v. Thompson, 71 Md. 315, 18 Atl. 592, 6 L. R. A. 705, and cases 
 there cited. 
 
 27 Ramsay v. Thompson, 71 Md. 315, 18 Atl.. 592, 6 L. R. A. 705. 
 
 28 Potts V. Terry, 8 Cdex. Civ. App. 394, 28 S. W. 122, 
 
400- GUARDIANS DEFINED SELECTION AND APPOINTMENT (Ch. 11 
 
 Chancery guardians are appointed by the court of chancery, and 
 in England constitute the most important class of guardians. The 
 jurisdiction of chancery over infants is of very ancient date. Its 
 origin is traced to the delegation by the crown of its duty to protect 
 the helpless, as parens patriae.^ ° The court of chancery will >not 
 exercise its jurisdiction unless the infant has property,'" but this is 
 often obviated by the settlement of a small amount on the child.'^ 
 The appointment may be made when the child has no other guard- 
 ian, when a suit is pending in which it is interested, or upon petition 
 without suit.'^ In this country, courts of equity often retain a gen- 
 eral jurisdiction over the persons and estates of infants,*' though, 
 as a rule, the matter of guardianship is exclusively delegated by 
 statute to the probate court or other similar tribunal.'* 
 
 STATUTE GUARDIANS 
 
 152. Guardians of the persons and estates of infants are generally 
 appointed in this country by courts of special statutory 
 jurisdiction. They are known as "statute guardians." 
 
 The probate, surrogate's, orphans', ordinary's, or other similar 
 court generally has, in the various states of this country, full statu- 
 tory jurisdiction over the persons and estates of minors, and over 
 their guardianship. Guardians appointed by these courts are now 
 generally designated as "statute guardians," and form, in this coun- 
 try, to-day by far the most important class. Their selection and ap- 
 pointment, and their powers, duties, and obligations, are determin- 
 ed in detail to a greater or less degree by statute.'" In the absence 
 
 2 9 2 Fonbl. Bq. (5th Ed.) 228, note; 2 Story, Eq. Jur. § 1333; Butler v. 
 Freeraah, Amb. 801.' . 
 
 so ^ellesley y. Duke of Beaufort, 2 Russ. 1, 20. 
 
 siEtersIey, Dom. Rel. 655/ 
 
 82 Eversley, Dom. Eel. 655. 
 
 ^33 Pom. Eq. Jur. § 78; People v. Wilcox, 22 Barb. (N. Y.) 178; Board of 
 Children's Guardians of Marion County v. Shutter, 139 Ind. 268, 34 N. E. 
 ,665, 31 t. R. 'A.. 740; Thomas v. Thomas, 250 111. 354, 95 N. B. 345, 35 L. R. A. 
 (N. S.) 1158, Ann. Cas. 1912B, 344, reversing 155 111. App. 619. 
 
 34 Brack V. Morris, 90 Kan. 64, 132 Pac. 1185 ; State ex rel. Baker v. Bird, 
 253 Mo; '569, 162 S. W. 119, Ann. Oas. '191SC, 353; Parker v. Lewis 45 Okl. 
 807, 147 Peic 310. 
 
 SB Guardians and curators a!re creatures of the law and statutory ofllcers 
 of the court. They liave iio liihereiit powers, hut only such as are prescribed 
 by statute. Scott v. Royston, 223 Mo. 56S, 123 S. W. 454. 
 
§ 153) QUASI GUAEDIANS, OR GUARDIANS BY ESTOPPEL 401 
 
 of statutory regulations, the ordinary principles of law governing 
 the relations of guardian and ward apply. When an infant is sole 
 executor, or is the next of kin to whom letters of administration 
 ought to be granted, the Probate Division of the High Court of 
 Justice in England will appoint a probate guardian to act durante 
 minore setate, for the purpose of administering the estate.^" In this 
 country the courts generally have statutory powers to select an ad- 
 ministrator to act in the infant's place during his minority, 
 
 QUASI GUARDIANS, OR GUARDIANS BY ESTOPPEL 
 
 153. Where one who has no right to do so assumes to act as guard- 
 ian, he may be made to account as guardian. 
 
 When one who has not been regularly appointed a guardian as- 
 sumes to act as such, or, by intermeddling, has taken possession of 
 an infant's estate, he may, at the election of the infant, be treated as 
 a wrongdoer or as a guardian.^^ "A mere stranger or wrongdoer, 
 who takes possession of the property of an infant, and receives the 
 rents and profits thereof, may, in equity, be considered as the guard- 
 ian of the infant, and may be compelled to account as such." ^' 
 And, also, when a regular guardian continues to manage the ward's 
 property after the latter's majority, and in effect continues the 
 guardianship, he may be made to account according to the rules 
 pertaining as between a regular guardian and hi^ ward.^° Ordi- 
 narily, however, on the termination of the guardianship, the rela- 
 tion changes from that of guardian and ward to that of debtor and 
 creditor.*" 
 
 36 Eversley, Dom. Rel. 653 ; 1 Williams, Ex'rs, 480. 
 
 37 Revett V. Harvey, 1 Sim. & S. 502; Wall v. Stanwick, 34 Ch. Div. .763; 
 Blomfleld v. B3yre, 8 Beav. 250; Zeideman v. Molasky, 118 Mo. App. 106, 94 
 S. W. 754; Van Epps v. Van Deusen, 4 Paige (N. T.j 64, 25 Am. Dee. 516 ; 
 Sherman v. Ballon, 8 Cow. (N. Y.) 304 ; Pennington v. Lf'Hommedieu, 7 N, 
 J. Eq. 343 ; Alston v. Alston, 34 Ala. 15 ; In re Harris' Guardianship, 17 Ariz. 
 405, 153 Pac. 422 ; Smith's Appeal, 158 Mich. 174, 122 N. W. 564 ; Crooks v. 
 Turpen, 1 B. Mon. (Ky.) 183 ; Lehmann v. Rothbarth, 111 111. 185; Martin's 
 Adm'r v. Fielder, 82 Va. 455, 4 S. E. 602. Xhere. is no sueh thing as a 
 guardian de facto. Bell v. Love, 72 Ga. 125. 
 
 3 8 Van Epps v. Van Deusen, 4 Paige (N. Y.) 64, 25 Am. Dec. 516; Ander- 
 son's Adm'r v. Smith, 102 Va. 697, 48 S. B. 29. 
 
 soMellish v. Mellish, 1 Sim. & S. 138. 
 
 *o Crowell's Appeal, 2 Watts (Pa.) 295; Cunningham v. Cunningham, 4 
 Grat. (Va.) 43. 
 
 TIFF.P.& D.Rel.(3d Ed.)— 26 
 
402 GUARDIANS DEFINED SELECTION AND APPOINTMENT (Ch, 11 
 
 GUARDIANS OF PERS.ONS NON COMPOTES MENTIS 
 
 154. Generally, by statute, the probate or some similar court is giv- 
 
 en the power to appoint a guardian of the person and es- 
 tate of persons who are non compotes mentis. In some 
 states the power is extended to include spendthrifts. 
 
 The crown, as parens patriae, had authority over the care and cus- 
 tody of infjants ; but this authority did not originally extend to in- 
 sane persons and other persons non compotes mentis. It was, how- 
 ever, conferred on the crown by Parliament, and intrusted under 
 the sovereign's sign manual to the IvOrd Chancellor. In this country 
 the guardianship of persons who are non compotes mentis is wholly 
 regulated by statute in the different states, jurisdiction being gen- 
 erally conferred upon the probate or other similar court. Guardian- 
 ship over spendthrifts was unknown at common law, but is not 
 uncommon under statutes in this country.*^ Guardianship of per- 
 sons non 'compotes mentis is governed by substantially the same 
 principles and rules of law as the guardianship of infants. 
 
 GUARDIANS AD LITEM 
 
 155. A guardian ad litem is a guardian appointed by a court of jus- 
 
 tice to prosecute or defend for an infant in a suit to which 
 he is a party. 
 
 Every court in which suit is brought against an infant has the 
 power to appoint a person to defend for him, when he has no guard- 
 ian; for, as an infant cannot appoint an, attorney, he would other- 
 wise be without assistance. A person so appointed is called a 
 "guardian ad litem." His power and duties, as the term implies, 
 are limited to the defense of the suit.*^ A guardian ad litem may 
 also be appointed to sue for an infant, but this is not usual, as an 
 infant generally sues by next friend." The appointment of a 
 guardian ad litem will be considered when we come to treat of in- 
 fants, and of actions by and against them. 
 
 *i Post, p. 535. 
 
 *i Co. litt 88b ; Bouv. Ij&w Diet. "Guardian" ; post, p. 468. 
 
 *« Post, p. 468. 
 
§§ 156-158) SELECTION AND APPOINTMENT BY COURT 403 
 
 SELECTION AND APPOINTMENT OF GUARDIANS BY 
 
 COURT 
 
 156. The selection of a guardian by the court is discretionary. The 
 
 "father, or, in this country, the mother if he is dead, or, if 
 both are dead, one of the next of kin, will be appointed, un- 
 less he is unfit, or the interests of the child demand the ap- 
 pointment of some one else. 
 
 157. A child over 14 could select his own guardian for nurture or 
 
 in socage, at common law, and may select his statute 
 guardian in this country, if the person selected is suitable. 
 
 158. But the court will not appoint as guardian, 
 
 (a) In England, a married woman, though in this country the 
 
 marriage of a woman is generally not regarded as a dis- 
 qualification. 
 
 (b) Nonresidents, as a rule, though it has the power to do so. 
 
 (c) Persons whose interests may be adverse to those of the ward. 
 
 In the selection of a guardian, the court has a liberal,** but not 
 arbitrary,*" discretion. It will generally respect the natural claim 
 of the father to act as guardian of his child.*' An appointment, 
 though too informal to be good as a testamentary appointment, has 
 great weight with the court in the selection of a guardian.*^ And, 
 generally, the wishes of a deceased parent will prevail, in the ab- 
 
 4* In re Kaye, 1 Ch. App. 387; Ohms v. Woodward, 134 Mich. 596, 96 N. 
 5V. 950 ; Nelson v. Green, 22 Ark. 367 ; State v. Houston, 32 La. Ann. 1305 ; 
 Battle V. Vick, 15 N. C. 294 ; In re Johnson, 87 Iowa, 130, 54 N. W. 69 ; Craw- 
 ford V. Crawford, 91 Iowa, 744, 60 N. W. 501. 
 
 45 White V. Pomeroy, 7 Barb. (N. Y.) 640. 
 
 48 In re Forrester, 162 Cal. 493, 123 Pac. 283 ; Andrino v. Yates, 12 Idaho, 
 618, 87 Pac. 787 ; In re Alexander, 127 La. 853, 54 South. 125 ; In re TULLY, 
 54 Misc. Rep. 184, 105 N. Y. Supp. 858, Cooley Cas. Persons and Domestic 
 Relations, 210; In re Galleher, 2 Cal. App. 364, 84 Pac. 352. Under Domestic 
 Relations Law (Laws 1896, p. 223, c. 272) § 61, vesting in the mother a right 
 to the custody of a child equally with the father, a guardian cannot be ap- 
 pointed for a minor on the father's petition without notice to the mother. 
 In re Drowne's Estate, 56 Misc. Rep. 417, 107 N. Y. Supp. 1029. 
 
 4' Hall V. Stork, 5 Law J. Exch. 97 ; In re Kaye, 1 Ch. App. 387 ; In re De 
 Marcellin, 24 Hun (N. Y.) 207; State ex rel. Young v. Cook, 193 Mo. App. 
 276, 183 S. W. 365. And see Knott v. Cottee, 2 Phil. Ch.'192, where a recom- 
 mendation in a will as to the custody of a child was followed. But the at- 
 tempted designation by will does not give the person so named any right of 
 priority. In re Allen's Estate, 162 Cal. 625, 124 Pac. 237. 
 
404 GUARDIANS DEFINED SELECTION AND APPOINTMENT. (Ch. 11 
 
 sence of good reasons to the contrary.** The best interests of the 
 infant will prevail, however, against even the claim of a father, 
 when he is not a suitable person.*' In this country, particularly, 
 the benefit of the ward is the paramount consideration with the 
 court; and some third person is often appointed, not onjy when 
 the father is unfit, but solely out of consideration for the general 
 welfare of the child.^" If the father is not living, the mother, in 
 this country, will generally be appointed, unless there is some good 
 reason why she should not." If the child is an orphan, the prefer- 
 ence will be given to the next of kin as against strangers.''^ At 
 common law an infant over 14 years of age could select his guard- 
 ian by nurture or in socage; ^' and, by statutory enactment, an in- 
 faat of 14 may generally nominate his own guardian, and such 
 person must be appointed by the court, if suitable."* It is even 
 
 4 8 Bennett v. Byrne, 2 Barb. Ch. (N. Y.) 216; In re Tank's Guardianship, 
 129 Wis. 629, 109 N. W. 565 ; Cozine v. Horn, 1 Bradf. Sur. (N. Y.) 143; In 
 re Turner, 19 N. J. Eq. 433 ; Badenhoof v. Johnson, 11 Nev. 87 ; Watson v. 
 Warnock, 31 Ga. T16. But see In re Tank's Guardian, 129 Wis. 629, 109 N. 
 W. 565 ; Parker v. Lewis, 45 Okl. 807, 147 Pac. 310. 
 
 *» In re TULLY, 54 Misc. Kep. 184, 105 N. Y. Supp. 858, Cooley Gas. Per- 
 sons and Domestic Relations, 210; In re Lamb's Estate (Sur.) 139 N. Y. Supp. 
 685 ; Hamerick v. People, 126 111. App. 491 ; Russner v. McMillan, 37 Wash. 
 416, 79 Pac. 988; Ex parte Mountfort, 15 Ves. 445; Wellesley v. Duke of 
 Beaufort, 2 Russ. 1 ; Thomas v. Roberts, 3 De Gex & S. 758. 
 
 50 Heinemann's Appeal, 96 Pa. 112, 42 Am. Rep. 532 ; Jones v. Bowman, 
 13 Wyo. 79, 77 Pac. 439, 67 L. R. A. 860; Page v. Hodgdon, 63 N. H. 53; 
 Grifan v. Sarsfield, 2 Dem. Sur. (N. Y.) 4; In re Cross, 92 Misc. Rep. 89, 155 
 N. Y. Supp. 1020; In re Tank's Guardianship, 129 Wis. 629, 109 N. W. 565; 
 Huie r. Nixon, 6 Port. (Ala.) 77 ; Badenhoof v. Johnson, 11 Nev. 87 ; Luppie 
 V. Winans,.37 N. J. Bq. 245; Bennett v. Byrne, 2 Barb. Ch. (N. Y.) 216; In 
 re McGrath, [1893] 1 Oh. 143. 
 
 51 Albert v. Perry, 14 N. J. Eq. 540; People v. Wilcox, 22 Barb. (N. Y.) 
 178; In re Snowball's Estate, 156 Cal. 240, 104 Pac. 444; Davis' Adm'r v. 
 Davis, 162 Ky. 316, 172 S. W. 665 ; In re Tank's Guardianship, 129 Wis. 629, 
 109 N. W. 565 ; Ramsay v. Ramsay, 20 Wis. 507. Where a child has been 
 adopted with consent of natural parents, the mother is not entitled to ap- 
 pointment as guardian on the death of the father. In re Masterson's Estate, 
 45 Wash. 48, 87 Pac. 1047, 122 Am. St. Rep. 886. 
 
 52 Johnstone v. Beattie, 10 Clark & F. 42; Sullivan's Case, 1 Moll. 225; 
 Albert v. Perry, 14 N. J. Eq. 540; State ex rel. Young v. Cook, 193 Mo. App. 
 276, 183 S. W. 365 ; Morehouse v. Cooke, Hopk. Oh. (N. Y.) 226. There are 
 frequently statutory enactments to the same effect. In re Dellow's Estate, 
 1 Cal. App. 529, 82 Pac. 558. An uncle has no legal right to appointment as 
 guardian, merely because he is competent and the father dying intestate de- 
 sired such appointment. Hutchins v.' Brown, 77 N. H. 105, 88 Atl. 706. 
 
 53 1 Bl. Conim. 462; Ex parte Edwards, 3 Atk. 519; Mauro v. Ritchie, 3 
 Cranch, O. O. 147, Fed. Cas. No. 9,312 ; Inferior Court v. Cherry, 14 Ga. 594. 
 
 6* Adams' Appeal, 38 Conn. 304; Dlckerson v. Bowen, 128 Ga. 122, 57 S. 
 
§§ 156-158) SELECTION AND APPOINTMENT BT COURT 405 
 
 held that the infant may nominate a guardian to supersede one al- 
 ready appointed by the court," ° but there is also authority to the 
 contrary.^ ^ 
 
 The appointment of a married woman as guardian is held improp- 
 er in England,"' but a female guardian who marries may be reap- 
 pointed after a reference to ascertain whether her reappointment is 
 for the benefit of the child."* In this country it has been said to be 
 against the policy of the law to appoint a married woman as guard- 
 ian,"' but by the weight of authority, she is competent to act in that 
 capacity."" When her husband is unsuitable, the appointment has 
 been refused ^n the ground that the wife would be under his in- 
 fluence.*^ A nonresident will ordinarily not be appointed, since 
 he is not amenable to the jurisdiction of the court; *^ but such ap- 
 pointments are within the power of the court,*' unless contrary to 
 statutory provisions.** 
 
 < < E. 326; Wlrsig v. Seott, 79 Neb. 322, 112 N. W. 655; State ex rel. Pinger v. 
 Reynolds, 121 Mo. App. 699, 97 S. W. 650; Lunt v. Aubens, 39 Me. 392; 
 Montgomery v. Smith, 3 Dana (Ky.) 599 ; Arthurs' Appeal, 1 Grant, Cas. 
 (Pa.) 55 ; Sessions v. Kell, 30 Miss. 458 ; Burns v. Parker (Tex. Civ. App.) 
 155 S. W. 673 ; Kelly v. Smith, 15 Ala. 687. But see In re TULLY, 54 Misc. 
 Rep. 184, 105 N. Y. Supp. 858, Cooley Cas. Persons and Domestic Relations, 
 210, following I«dwith v. Ledwith, 1 Dem. Sur. (N. Y.) 154, and holding that 
 the court may exercise its own discretion, though the person is a suitable 
 one. And see In re WyckofC, 67 Misc. Rep. 1, 124 N. Y. Supp. 625. 
 
 56 Sessions v. Kell, 30 Miss. 458; Bryce v. Wynn, 50 Ga. 332; Kelly v. 
 Smith, 15 Ala. 687; In re Kirckman's Estate, 16S Cal. 688, 144 Pac. 745; 
 Dickerson v. Bowen, 128 Ga. 122, 57 S. E. 326; Montgomery v. Smith, 3 
 Dana (Ky.) 599. But, when the ward has had one choice, he cannot supersede 
 ^ucix guardian by another, imless the first is removed for cause. Central 
 Trust Co. V. McCarroU, 141 JCy. 278, 132 S. "W. 541, Ann. Cas. 1912C, 475. 
 
 5 6 Gray's Appeal, 96 Pa. 243; Ham v. Ham, 15 Grat. (Va.) 74; Mauro v. 
 Ritchie, 3 Cranch, C. C. 147, Fed. Cas. No. 9,312. 
 
 57 In re Kaye, 1 Oh. App. 387. 
 
 6 8 In re Gornall, 1 Beav. 347; Jones v. Powell, 9 Beav. 345. 
 
 6 9Holley V. Chamberlain, 1 Redf. Sur. (N. Y.) 333, overruled by In re 
 Hermance, 2 Dem. Sur. (N. Y.) 1; married women having been made compe- 
 tent by statute in New York. 
 
 eo Beard v. Dean, 64 Ga. 258 ; Parrer v. Clark, 29 Miss. 195 ; Jarrett v. 
 State, 5 Gill & J. (Md.) 27; Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. 
 Dec. 41; Goss v. Stone, 63 Mich. 319, 29 N. W. 735; Ex parte Maxwell, 19 
 Ind. 88; Succession of Gaines, 42 La. Ann. 699, 7 South. 788. A married 
 woman is not incapacitated from acting as guardian of her children by a 
 former marriage. Wright v. Wright (Tex. Civ. App.) 155 S. W. 1015. 
 
 81 Kettletas v. Gardner, 1 Paige (N. Y.) 488; Ex parte Maxwell, 19 Ind. 88. 
 
 62 Logan V. Fairlee, Jac. 193 ; Johnstone v. Beattie, 10 Clark & F. 42, 86 ; 
 In re Taylor, 3 Redf. Sur. (N. Y.) 259. 
 
 63 Daniel v. Newton, 8 Beav. 485; Succession of Oliver, 113 La. 877, 37 
 South. 862 ; Berry v. Johnson, 53 Me. 401. 
 
 94 Finney v. State, 9 Mo. 227. 
 
406 GUARDIANS DEFINED SELECTION AND APPOINTMENT (Ch. 11 
 
 An executor or administrator of an estate in which an infant has 
 an interest has been held not to be a proper person, on the ground 
 that his interests may be adverse to those of the child.°° But the 
 trustee of an infant is a proper person,** unless it appears that he 
 has acted or may act to the infant's prejudice.*^ The rule is general 
 that the court will not appoint a person whose interests are or may 
 be adverse to those of the infant.** The court may appoint a corpo- 
 ration as guardian where it is authorized by statute to act in that 
 capacity.*" But the appointment of a firm designated in a will has 
 been refused.'* 
 
 JURISDICTION TO APPOINT GUARDIAN 
 
 159. A guardian can only be appointed by a court within whose ju- 
 risdiction the minor has his residence, or has property. 
 
 The place of residence of an infant determines the court which 
 has jurisdiction to appoint a guardian ; '^ but, when a nonresident 
 infant has property within the jurisdiction, a guardian may usually 
 be appointed by the court of the county where the property is sit- 
 es Griffin V. Sarsfield, 2 Dem. Sur. (N. Y.) 4; Ex parte Crutchfield, 3 Terg. 
 (Tenn.) 336 ; Isaacs v. Taylor, 3 Dana (Ky.) 600. 
 88 Bennett v. Byrne, 2 Barb. Oh. (N. T.) 216. 
 
 07 As where lie has subordinated the Interest of the child to those of an- 
 other cestui que trust. Barnsback v. Dewey, 13 111. App. 581. 
 
 8 8 In re Van Beuren's Estate (Sur.) 13 N. Y. Supp. 261; Corwin's Appeal, 
 126 Pa. 326, 19 Atl. 38 ; In re Brien's Estate, 58 Hun, 604, 11 N. Y. Supp. 522; 
 In re Edmonson's Estate, 78 Neb. 279, 110 N. .W. 540. But see In re Bed- 
 ford's Estate, 158 Oal. 145, 110 Pac. 302. , 
 
 9 Minnesota Loan & Trust Co. v. Beebe, 40 Minn. 7, 41 N. W. 232, 2 L. E. 
 A. 418 ; In re Cordova, 4 Eedf . Sur. (N. Y.) 66 ; Ledwith v. Ledwith, 1 Dem. 
 Smr. (N. Y.) 154 ; Glaser v. Priest, 29 Mo. App. 1 ; Johnson v. Johnson, 88 Ky. 
 275, 11 S. W. 5; In re Brien's Estate, 58 Hun, 604, 11 N. Y. Supp. 522. 
 
 7 De Mazar v. Pybus, 4 Ves. 64^. 
 
 '1 Brown V. Lynch, 2 Bradf. Sur. (N. Y.) 214 ; Oonnell v. Moore, 70 Kan. 
 88, 78 Pac. 164, 109 Am. St Eep. 408 ; Ware v. Coleman, 6 J. J. Marsh. (Ky.) 
 198; Maxsom's Lessee v. Sawyer, 12 Ohio, 195; Dorman v. Ogbourne, 16 Ala. 
 759; Darden v. Wyatt, 15 Ga. 414; Lewis v. Castello, 17 Mo. App. 593; 
 Smith V. Young, 136 Mo. App. 65, 117 S. W. 628; In re Conner, 93 Neb. 118, 
 139 N. W. 834; Herring v. Goodson, 43 Miss. 392; Harding v. Weld, 128 
 Mass. 587 ; In re BEADY, 10 Idaho, 366, 79 Pac. 75, Cooley Cas. Persons and 
 Domestic Eelatlons, 212 ; Sears v. Terry, 26 Conn. 273. Letters of guardian- 
 ship issued to a person entitled to custody in the domicile of the minor will 
 prevail over letters to a parent in a different domicile. Smidt v. Benenga, 140 
 Iowa, 399, 118 N. W. 439. 
 
§ 159) JURISDICTION TO APPOINT GUARDIAN 407 
 
 uated.''^ Although the legal domicile be elsewher6, residence in 
 fact has been held sufficient to confer jurisdiction.'" An appoint- 
 ment made when the infant has neither a residence nor property is 
 void, and may be attacked collaterally;^* but, when the court has 
 jurisdiction, an appointment can only be set aside by direct proceed- 
 ings in the same court,^° and, although there was no personal serv- 
 ice on the ward, the appointment cannot be attacked collaterally.'* 
 
 T 2 Logan V. Farlee, Jac. 193; Stephens v. James, 1 Mylne & K. 627; 
 Seaverns v Gerke, 3 Sawy. H53, Fed. Cas. No. 12,59^; Nunn v. Robertson, 
 80 Ark. 350, 97 S. W. 293, Ann. Cas. 1913B, 1197 ; Clarke v. Cordis, 4 Allen 
 (Mass.) 466; In re Hubbard, S2 N. Y. 90; Rice's Case, 42 Mich. 528, 4 N. W. 
 284; Davis v. Hudson, 29 Minn. 27, 11 N. W. 136; Grier v. McLendon, 7 
 Ga. 362 ; Barnsbaok v. Dewey, 13 111. App. 581 ; Neal v. Bartleson, 65 Tex. 
 478. A nonresident minor, whose only property within the state was the 
 statutory right of action for the wrongful death of a parent, had an "estate" 
 within the state. Williams v. Chicago, B. & Q. R. Co., 169 Mo. App. 468, 155 
 S. W. 64. 
 
 73 Johnstone v. Beattie, 10 Clark & F. 42; In re Hubbard, 82 N. Y. 90; 
 Ross V. Southwestern K. Co., 53 Ga. 514. But see Sudler v. Sudler, 121 Md. 
 46, 88 Atl. 26, 49 L. R. A. ti^'. S.) 860, Ann. Cas. 1913B, 1191, holding that dom- 
 icile and not place of abode -"is the minor's "residence" within meaning of 
 the Maryland statute. 
 
 '* Cases cited in preceding notes. 
 
 7B Grier v. McLendon, 7 Ga. 362 ; Sears v. Terry, 26 Conn. 273 ; People v. 
 Wilcox, 22 Barb. (N. T.) 178; Speight v. Knight, 11 Ala. 461; Pannill's Adm'r 
 V. Calloway's Committee, 78 Va. 387; Brack v. Morris, 90 Kan. 64, 132 Pac. 
 1185; Paslick v. Shay, 148 Ky. 642, 147 S. W. 369; Williams v. Chicago, B. 
 & Q. R. Co., 169 Mo. App. 468, 155 S. W. 64 ; Wirsig v. Scott, 79 Neb. 322, 
 112 N. W. 655; Baker v. Cureton, 49 Okl. 15, 150 Pac. 1090. 
 
 7 6 Board of Children's Guardians of Marion County v. Shutter, 139 Ind. 
 268, 34 N. E. 665, 31 L. R. A. 7i0; Kurtz v. St. Paul & D. R. Co., 48 Minn. 
 339, 51 N. W. 221, 31 Am. St. Rep. 657; Kurtz v. West Duluth Land Co., 52 
 Minn. 140, 53 N. W. U32; Appeal of Gibson, 154 Mass. 378, 28 N. E. 296. 
 
408 RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 CHAPTER XII 
 
 BIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS 
 
 160. Guardian's Right to Custody of Ward. 
 
 161. Guardian's Eight to Ward's Services, 
 162-166. Maintenance of Ward, 
 
 16S. Contracts. 
 
 164. Reimbursement for Support. 
 
 165-166. Use of Principal of Estate. 
 
 167. Change of Ward's Domicile by Guardian. 
 
 168-179. Management of Ward's Estate. 
 
 168-169. Guardianship as a Trust. 
 
 170. Acts in Excess of Authority. 
 
 171. Degree of Care Beciulred. 
 
 172. Collection and Protection of Property— Actions. 
 173-174. , Investments. 
 
 175. Care of Real Estate. 
 
 176-177. Sale of Real Estate. 
 
 178. Sale of Personal Property. 
 
 179. Power to Execute Instruments, 
 
 180. Foreign Guardians. 
 181-183. Inventory and Accounts. 
 
 184. Compensation of Guardian. 
 
 185. Settlements Out of Court. 
 
 186. Gifts from Ward to Guardian. 
 
 GUARDIAN'S RIGHT TO CUSTODY OF WARD 
 
 160. The guardian is ordinarily entitled to the custody of his ward, 
 except, in this country, as against the parents. In all cas- 
 es the courts have a discretion, and will award the custody 
 as may be best for the interests of the child. 
 
 The rule of the English courts is that a guardian is entitled to 
 the custody of the person of his ward, not only as against strangers, 
 but even as against the child's parents.^ In this country the cus- 
 tody of the ward will ordinarily be given to its guardian, both as 
 against strangers and as against relations,^ with the exception of 
 its parents. The rights of the parent are generally conceded by 
 
 1 Wright v. Naylor, 5 Madd. 77 ; In re Andrews, L. R. 8 Q. B. 153 ; Eyre v. 
 Countess of Shaftsbury, 2 P. Wms. 103. 
 
 2 Coltman v. Hall, 31 Me. 196 ; Bounell v. Berryhill, 2 Cart. (Ind.) 613 ; 
 Johns V. Emmert, 62 Ind. 533 ; Ex parte Ralston, R, M. Charlt. (Ga.) 119. 
 
§ 161) guardian's eight to ward's services 409 
 
 the courts to be superior to those of the guardian.* The right to 
 the ward's custody is often regulated by statute. In the award of 
 the custody of the child's person, even as between parent and 
 guardian, the courts will exercise a reasonable discretion, and when 
 the question arises as to the right to its custody, as between its 
 parent and another,* will be largely influenced by the child's best 
 interests." If the child is of sufficient discretion, the court will 
 take its wishes into consideration." 
 
 GUARDIAN'S RIGHT TO WARD'S SERVICES 
 
 161. A guardian, as such, is not entitled, like a parent, to his ward's 
 services and earnings. 
 
 A guardian, as such, has no right to his ward's services, corres- 
 ponding to the parent's right to the services of his minor child.'' 
 When an infant is living with and supported by his guardian 
 as a member of his family, and renders ordinary household serv- 
 ices, it has been held that he may s,et off the value of such services 
 against the guardian's claim for maintenance.* There are cases, 
 however, which hold the contrary.' The guardian, not being enti- 
 tled to the services of his ward, cannot, as such, bring an action for 
 
 3 People V. Wilcox, 22 Barb. (N. T.) 178 ; "Wbod v. Wood, 5 Paige (N. T.) 
 596, 28 Am. Dec. 451 ; Ramsay v. Ramsay, 20 Wis. 507 ; In re Ross" Guardian- 
 ship, 6 Cal. App. 597, 92 Pac. 671 ; Lord v. Hough, 37 Cal. 657. But see 
 Mason v. Williams, 165 Ky. 331, 176 S. W. 1171, holding that the right of a 
 statutory guardian is not superior to that of a parent. The guardian is 
 entitled to his ward's custody in the absence of an award to another, and is 
 not answerable for false imprisonment in asserting his right thereto. Town- 
 send 7. Kendall, 4 Minn. 412 (Gil. 315), 77 Am; Dec. 534, 
 
 * Ante, p. 343. 
 
 5 Roach V. Garvan, 1 Ves. Sr. 157 ; Gamer v. Gordon, 41 Ind. 92 ; Ward v. 
 Roper, 7 Humph. (Tenn.) Ill; In re Heather Children, 50 Mich. 261, 15 N. 
 W. 487 ; Stone v. Duffy, 219 Mass. 178, 106 N. E. 595 ; Smith v. Haas, 132 
 Iowa, 493, 109 N. W. 1075. 
 
 sAnon., 2 Ves. Sr. 374; People v. Wilcox, 22 Barb. (N. Y.) 178. 
 
 7 Haskell v. Je>veU, 59 Vt. 91, 7 Atl. 545 ; Zeideman v. Molasky, 118 Mo. 
 App. 106, 94 S. W. 754; Bass v. Cook, 4 Port. (Ala.) 390; In re Clark, 
 36 Hun (N. Y.) 301; Denison v. Cornwell, 17 Serg. & R. (Pa.) 377; Hayaen 
 V. Stone, 1 Duv. (Ky.) 400 ; Blanchard v. Ilsley,' 120 Mass. 487, 21 Am. Rep. 
 535. 
 
 8 Phillips V. Davis, 2 Sneed (Tenn.) 520, 62 Am. Dee. 472 ; Calhoun v. Cal- 
 houn, 41 Ala. 369 ; Crosby v. Crosby, 1 S. C. 337. As to the right to charge 
 for ward's support, see post, p. 413. 
 
 9 Moyer v. Fletcher, 56 Mich. 508, 23 N. W. 198 ; Armstrong's Heirs v. 
 Walkup, 12 Grat. (Va.) 608. 
 
410 RIGHTS, DUTIES, AND LIABILITIES OF GUAEDlANS (Ch. 12 
 
 loss of services caused by a tortious injury, as for the seduction of 
 a female ward.'^" If, however, the guardian stands in loco paren- 
 tis, so that he has the same rights as a parent would have, including 
 the right to control the child's services, he may maintain such an 
 action. ^^ 
 
 MAINTENANCE OF WARD— CONTRACTS 
 
 162. A guardian is bound to maintain his w^ard from the income of 
 
 the estate, but he is not bound to furnish support person- 
 ally, and no promise on his part will be implied, without 
 his consent, to pay even for necessaries, furnished the 
 ward. 
 
 163. A guardian cannot, by contract, bind either the ward or his 
 
 estate. He is primarily personally liable on contracts, 
 though made by him as guardian, and on behalf of the 
 ward, but in proper cases he is entitled to reimbursement 
 
 164. By the weight of authority, when the ward lives with the 
 
 guardian as a member of his family, receiving support, and 
 rendering the ordinary services of a child, the guardian is 
 not entitled to an allowance for such support, in the ab- 
 sence of an agreement, the relation in such case being 
 quasi parental. 
 
 It is the duty of the guardian to maintain and educate his ward 
 in a manner suitable to his ineans, from the income of the ward's 
 estate.^ ^ Although the ward's father is living, the guardian should 
 provide for his maintenance out of his estate, provided the father 
 is unable to do so, and a court of equity will order an allowance for 
 such maintenance.^' 
 
 10 Blanchard v. Ilsley, 120 Mass. 487, 21 Am. Rep. 535. 
 
 11 Fernsler v. Moyer, 3 Watts & S. (Pa.) 416, 39 Am. Dee. 33. See Hartley 
 V. Kichtmyer, 4 N. Y. 38, 53 Am. Dee. 3.38 ; ante, p. 376 
 
 12 Reading v. Wilson, 38 N. J. Eq. 446; I'reble v. Longfellow, 48 Me. 27&, 
 77 Am. Dec. 227 ; Roscoe v. McDonald, 101 Mich. 313, 59 N. W. 603, and cases 
 hereafter cited. As a rule, the entire cost of well-to-do Infants shall not 
 exceed the interest on the capital of their estate. In re Brown, 80 Misc. Rep. 
 4, 141 N. T. Snpp. 193. 
 
 18 Errat v. BarloW, 14 Ves. 202; Ex parte Mountfort, 15 Ves. 449; Clark v. 
 Montgomer;^, 23 Earb. (N. y.) 464; Beasley v. Watson, 41 Ala. 234; Waldrom 
 V. Waldrom, 76 Ala. 285; In re .\le.^ander, 79 :N. J. Eq. 226, 81 Atl. 732 p 
 In re Boyes' Estate, 151 Cal. 153, 90 Pac. 454; State v. Martin, 18 Mo. App. 
 468; Newport v. Cook, 2 Ashm. (Pa.) 332. 
 
§§ 162-164) MAINTENANOE OF WARD 411 
 
 A guardian is under no personal obligation to support his ward, 
 and therefore no promise on his part will be implied, as a matter 
 of law, to pay even for his ward's necessaries. "A guardian is not 
 responsible, either personally or in his fiduciary character, for nec- 
 essaries furnished his ward without his consent, express or im- 
 plied." ^* If a guardian should willfully withhold from hjs ward 
 necessaries suited to his fortune and condition in life, equity, or the 
 probate or other court having jurisdiction of the guardianship, 
 would compel him to supply them and if a stranger, ad interim, 
 should furnish them, he would be reimbursed out of the ward's 
 fortune; but no one could furnish even accessaries without the 
 guardian's consent, and maintain an action against the guardian 
 therefor. Where, therefore, a guardian refuses or neglects to fur- 
 nish his ward a support, "the remedy is by application to the court, 
 which will dismiss the guardian for neglect of duty, or the infant 
 may himself purchase necessaries; or, if of such a tender age that 
 lie cannot contract himself, a third person may supply his wants. 
 But-then the guardian is not liable; but the infant. In that case suit 
 must be brought against the infant, who can appear by guardian, 
 and not against the guardian himself; and the judgment, when 
 rendered, is against the infant, and execution can only be had of 
 the estate of the infant." ^^ 
 
 Clearly, no consent on the part. of the guardian can be implied 
 where necessaries are furnished without his knowledge, nor can his 
 consent be implied, even vvhere he- has such knowledge, if the cir- 
 cumstances are such that he cannot be held to know that the par- 
 ty furnishing them believes he consents. If his knowledge and ac- 
 quiescence are as consistent with want of consent as with consent, 
 his consent will not be implied.^' 
 
 "Barnum v. Frost's Adm'r, 17 Grat. (Va.) 398; Pirtnell v. Hinkle, 54 W. 
 Va. 119, 46 S. E. 171; Overton v. Beavers, 19 Ark. 623, 70 Am. Dec. 610; 
 Edmunds v. Davis, 1 Hill (S. C.) 279; Tucker v. McKee, 1 Bailey (S. O,) 
 344 ; Call v. Ward, 4 Watts & S. (Pa.) 118, 39 Am. Dec. 64 ; Bredin v. Dwen, 
 2 W]atts (Pa.) 95; Penfield v. Savage, 2 Conn. 387; McDaniel v. Mann, 25 
 Tex. 101 ; Gwaltney v. Cannon, 31 Ind. 227 ; State v. Cook, 34 N. C. 67 ; 
 Spring V. Woodworth, 4 Allen (Mass.) 326. A guardian has the same right 
 as a parent to decide what are necessaries, and any one supplying the child 
 does so at his peril. Nicholson v. Spencer, 11 Ga. 607 ; Kraker v. Byrum, 13 
 Rich. (S. C.) 163 ; McKanna v. Merry, 61 111. 177. 
 
 15 Call V. Ward, 4 Watts & S. (Pa.) 118, 39 Am. Dec. 64. 
 
 16 Call V. ward, 4 Watts & S. (Pa.) 118, 39 Am. Dec. 64; Edmunds v. Davis, 
 1 Hill (S. C.) 279 ; Overton v. Beavers, 19 Ark. 623, 70 Am. Dec. 610. Where, 
 on a fa,ther's refusal to support his child, a relative furnished support, it was 
 
412 RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 The guardian's authority is limited to supplying the needs of 
 the ward out of the income of the estate. He cannot, by contract, 
 render the ward personally liable even for necessaries, nor can he 
 bind the ward's estate.'-' On contracts made by him, the guardian 
 renders himself personally liable, though he may expressly contract 
 as guardian;^' but in proper cases he is entitled to reimburse- 
 ment out of the ward's estate.^ ° In a Massachusetts case a gqard- - 
 ian gave a promissory note, as guardian, to effect the release of his, 
 ward from an execution against the person, and it was held that he 
 was personally liable thereon. In answer to an objection that the 
 defendant guardian was' not personally liable, as he contracted only 
 as guardian, the court said: "As an administrator cannot, by his 
 promise, bind the estate of his intestate, so neither can the guard- 
 ian, by his contract, bind the person or estate of his ward. Unless, 
 therefore, the defendant is liable to pay this note, the plaintiff has 
 no remedy. But we are satisfied that the defendant is liable. It is 
 his promise, made on a sufficient consideration; and although, in 
 the note, he states that he promises as guardian, yet he is person- 
 ally bound — his trust being inserted only to entitle himself to in- 
 demnity from his ward, with which the plaintiff has no concern." "" 
 When a guardian incurs liability in excess of the estate, and fails 
 to limit his liability, he is personally liable for the excess. ^^ 
 
 held that the child's guardian, who had no knowledge of the father's re- 
 fusal, was not liable to the relative for such support, though he had suffi- 
 cient funds belonging to the ward. Turner v. Flagg, 6 Ind. App. 563, 33 N. E. 
 1104. 
 
 1'^ Jones V. Brewer. 1 Pick. (Mass.) 314; Fidelity & Deposit Co. v. M. Rich 
 & Bros., 122 Ga. .506, 50 S. B. 338 ; Forster v. Fuller, 6 Miass. 58, 4 Am. Dec. 
 87; Massachusetts General Hospital v. Fairbanks, 132 Mass. 414; Reading 
 V. Wilson, 38 N. J. Fxj. 446; Abom v. Janis, 62 Misc. Rep. 95, 113 N. Y. Supp. 
 309; Tenney v. Evans, 14 N. H. 343, 40 Am. Dee. 194; Sperry v. Fanning, 
 80 JU. 371 ; State v. Clark, 16 Ind. 97 ; Brown v. Grant, 29 W. Va. 117, 11 
 S. B. 90O ; Lusk v. Patterson, 2 Colo. App. 306, 30 Pac. 253. 
 
 IS Forster v. Fuller, 6 Mass. 58, 4 Am. Dec. 87 ; Thacher v. Dinsmore, 5 
 Mass. 299, 4 Am. Dec. 61 ; Rollins v. Marsh, 128 Mass. 116 ; Simms v. Norris, 
 5 Ala. 42; Sperry v. Fanning, 80 111. 371; Hlunt v. Maldonado, 89 Cal. 636, 
 27 Pac. 56; Reynolds v. Garber-Buick Co., 183 Mich. 157, 149 N. W. 985, 
 L. R. A. 19150, 362 ; Bell v. Dingwell, 91 Neb. 699, 136 N. W. 1128 ; McNabb 
 V. Clipp, 5 Ind. App. 204, 31 N. E. 858 ; Lewis v. Edwards, 44 Ind. 333. Has 
 promise Is not within the statute of frauds, and need not be in writing. 
 Roche V. Chaplhi, 1 Bailey (S. C.) 419 ; McNabb v. Clipp, 5 Ind. App. 204, 81 
 N. E. 858. ^ 
 
 1 Post, p. 414, 
 
 20 Forster v. Fuller, 6 Mass. 58, 4 Am. Dec. 87. 
 
 21 l-lutchlnson v. Hutchinson, 19 Vt. 437; Broadus v. Bosson, 3 Leigh 
 (Va.) 12. 
 
§§ 162-164) MAINTENANCE OP WARD *13 
 
 A guardian cannot exceed the income of the estate in the main- 
 tenance of his ward, without leave of court.^^ "When a guard- 
 ian finds that the income of the ward's estate is not sufficient for 
 his maintenance, it is his duty to submit the whole matter to the 
 consideration of the court, and to act under its directions. If he 
 proceeds otherwise, he acts upon his own responsibility." ^^ It 
 has been held that a guardian has no authority to make advances 
 from his own means for the maintenance of his ward, and that 
 where he does so he cannot recover the amount advanced, from 
 the ward, after the latter attains his majority.^* This, however, 
 cannot prevent a guardian from advancing the means necessary to 
 Support the ward, and claiming to be reimbursed out of the estate 
 of his ward which subsequently comes into his hands. Reimburse- 
 ment will be allowed in a proper case.^^ 
 
 By the weight of authority, when a ward is living with his 
 guardian as a member of his family receiving support on the one 
 hand and rendering household services on the! other it will be as- 
 sumed in the absence of evidence to the contrary that they are 
 living in the relation of parent and child ; and the guardian cannot 
 under such circumstances charge the ward's estate for mainte- 
 nance. Nor of course under such circumstances could the ward 
 recover for his services. "Where the family relation exists whether 
 natural or assumed, there is, in the absence of an express agree- 
 ment, or circumstances from which an agreement may be fairly 
 inferred, no implied obligation to pay for board, on the one hand, 
 or for work, on the other." ^* There are many cases, however, 
 
 22 Hudson V. Newton, 83 Ark. 22.9, 103 S. W. 170; Stewart v. Crump, 131 
 La. 463, 59 South. 903 ; Campbell v. O'Neill, 6& W. Va. 459, 72 S. E. 732 ; 
 mdellty Trust Co. v. Butler, 91 S. W. 676, 28 -Ky. Law Eep. 1268. 
 
 23 Patton V. Thompson, 55 N. C. 411, 67 Am. Dec. 222. And see post, pp. 
 414r416, and cases there cited. 
 
 24 Preble v. Longfellow, 48 Me. 279, 77 Am. Dec. 227 ; In re Boyes' Estate, 
 151 Cal. 143, 90 Pac. 454. 
 
 2 5 Patton V. Thompson, 55 N. C. 411, 67 Am. > Dee. 222; Johnston v. Cole- 
 man, 56 N. C. 293 ; Withers v. Hickman, 6 B. Mon. (Ky.) 292 ; Gott v. Gulp, 
 45 Mich. 265, 7 N. W. 767 ; In re Boyes' Estate, 151 Cal. 143, 90 Pac. 454 ; 
 Speer v. Tinsley, 55 Ga. 89; In re Ward, 49 Misc. Rep. 181, 98 N. Y. Supp. 
 923; Gaspard v. Coco, ]16 La. 1096, 41 South. 326; DUFFY v. WILLIAMS, 
 133 N. C. 195, 45 S. E. 548, Cooley Cas. Persons and Domestic Relations, 215. 
 But see Logan v. Gay (Tex. Civ. App.) 87 S. W. 852, holding that failure to 
 . procure an order of court precedent to expenditure cannot be remedied 
 by an order nunc pro tunc. 
 
 2 6 Doan V. Dow, 8 Ind. App. 324, 35 N. B. 709. And see Webster v. Wads- 
 worth, 44 Ind. 283 ; ABRAMS v. UNITED STATES FIDELITI & GUARAN- 
 
414 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 which do not support this view, but which hold that a guardian 
 who takes his ward into his family to live is entitled to reasonable 
 compensation for board and clothing furnished, though no express 
 agreement to charge and to pay therefor is shown, and though the 
 ward assists in the performance of household duties.^^ 
 
 SAME— USE OF PRINCIPAL OF ESTATE 
 
 165. The guardian is restricted to the use of the income of the es- 
 
 tate in the maintenance and education of the ward, unless 
 he has obtained leave of the court to use the principal. 
 
 166. Such leave will be granted in a case of necessity, or where the 
 
 advantage to the ward clearly demands it. And the court 
 may approve such use by the guardian, without previous 
 application for leavp, where the court would have author- 
 ized it if application had been made. 
 
 TT CO., 127 Wis. 579, 106 N. W. 1091, 5 L. R. A. (N. S.) 575, 115 Am. St. 
 Rep. 1055, Oooley Oas. Persons and Domestic Relations, 222; Mulhern t. 
 McDavitt, 16 Gray (Mass.) 404; Folger v. Heidel, 60 Mo. 285; Douglas' Ap- 
 peal, 82 Pa. 169 ; Horton's Appeal, 94 Pa. 62. In Otis v. Hall, 117 N. T. 131, 22 
 N. E. 563, on an accounting by a guardian, it appeared that having no chil- 
 dren of his own, he had told the stepfather of his ward that he would take the 
 child into his family, and bring him up as his own ; ' that he would collect cer- 
 tain pension money due the ward, and pay it over to him, with interest, when 
 he became of age ; that, upon this understanding, he was appointed guardian 
 of the child, took him into his family, and always spoke of him as his child, 
 saying that he had adopted him. Tlie ward lived with him, and did the usual 
 work of the farm. It was held that the guardian stood in loco parentis, and 
 was not entitled to any allowance for maintenance of the ward. "It is well 
 settled," said the court, "that where parties sustain the relation of parent 
 and child, either by nature .or adoption, the former, in the absence of an 
 express promise, cannot be required to pay for services rendered by the 
 child, nor the latter be obliged to pay for maintenance." 
 
 2 7 Moyer v. Fletcher, 56 Mich. 508, 23 N. W. 198. And see Armstrong's 
 Heirs v. Wialkup, 12 Grat. (Va.) 608; Pratt's Adm'r v. Baker, 56 Vt. 70; 
 Rawson v. Ck)rbett, 43 111. App. 127 ; Pyatt v. Pyatt, 46 N. J. Bq. 285, 18 Atl. 
 1048; Mumford v. Rood, 36 S. D. 80, 153 N. W. 921; Jacobia v. Terry, 92 
 Mich. 275, 52 N. WI. 629. In some of the cases cited, there were peculiar cir- 
 cumstances which may be regarded as distinguishing them from Doan v. 
 Dow, and other cases cited in note 26, supra, so that they are not against 
 the proposition to which those cases are cited. Thus, tn Pyatt v. Pyatt, 46 
 N. J. Eq. 285, 18 Atl. 1048, the guardian used the ward's money to support 
 the ward. This shows an intention to charge the ward. And compare In re 
 Lavemois" Estate, 78 Mich. 332, 44 N. W. 279, with Moyer v. Fletcher, 56 
 Mich. 508, 23 N. W. 198. 
 
§§ 165-166) MAINTENANCE OP WARD 415 
 
 In the maintenance of the ward the guardian is ordinarily author- 
 ized to use only the income of the estate. ^^ He cannot break in 
 upon the principal without the sanctipn of the court. If necessary, 
 the court will authorize such an expenditure,^" but the guardian 
 must apply to the court, and, if he assumes to judge of the neces- 
 sitji himself, he does so at his own risk, and on his own respon- 
 sibility.^" Such a rule as this is necessary to protect the property 
 of the ward, and this is its object. "A guardian," said the Illinois 
 court, "will fiot be permitted to expend upon -the maintenance and 
 education of his ward more than the income of the estate, without 
 the sanction of the court. The court itself, on an application, prop- 
 per as to time, would proceed with the utmost degree of caution, 
 and would withhold its sanction, except in a case of strong neces- 
 sity or advantage to the ward, very clearly made out. In a case 
 where the ward had considerable expectancies, or his estate had 
 not yet been reduced to possession, or he was likely to suffer for 
 the common necessaries of life, or, exhibiting fine talents, it was 
 desirable to expend his small estate in his education, with a view 
 to his future advancement in life ; in these and similar instances of 
 necessity or advantage to the ward, the court would authorize the 
 expenditure of the capital of his estate." *^ The ward's real prop- 
 erty cannot be sold to provide for maintenance without leave of 
 co^rt first obtained.*^ Nor can the proceeds of real estate sold for 
 reinvestment be so used.^* 
 
 28 Ante, p. 412. > 
 
 2 9Villar(J V. Robert, 2 Strob. Eq. (S. C.) 40, 49 Am. Dec. 654; Hudson v. 
 Newton, 83 Ark. 223, 103 S. W. 170 ; Harvey v. Harvey, 2 P: Wms. 21 ; In r« 
 Bostwick, 4 Johns. Cb. (N. Y.) 100; Eoseborough v. Roseborough, 3 Baxt. 
 (Tenn.) 314 ; Newport v. Cook, 2 Ashm. (Pa.) 332 ; Withers v. Hickman, 6 B. 
 Men. (Ky.) 292. See, also. Com. v. Lee, 120 Ky. 433, 86 S. W. 990, 89 S. W. 
 731. 
 
 soVillard v. Robert, 2 Strob. Eq. (S. O.) 40, 49 Am. Dec. 654; Walker v. 
 Wetherell, 6 Ves. 473; Lee v. Brown, 4 Ves. 362, 369; In re Bostwick, 4 
 Johns. Ch. (N. Y.) 100 ; Davis v. Harkness, 1 Gilman (111.) 173, 41 Am. Dec. 
 184; Beeler v. Dunn, 3 Head (Tenn.) 87, 75 Am. Dec. 761; Owens v. P^rce, 
 10 Lea (Tenn.) 45; Phillips v. Davis, 2 Sneed (Tenn.) 520, 62 Am. Dec. 472; 
 State v. Clark, 16 Ind. 97; Dowling v. Feelej', 72 Ga. 557; McDowell v. 
 Caldwell, 2 McCord, Ekj. (S. C.) 43, 16 Am. Dec. 635 ; Campbell v. O'Neill, 69 
 WL Va. 459, 72 S. B. 732; Myers v. Wade, 6 Rand. (Va.) 444; Rinker v. 
 Streit, 33 Grat. (Va.) 663; Johnston v. Coleman, 56 N. C. 290; Gilbert v. 
 McEachen, 38 Miss. 469. 
 
 31 Villard v. Robert, 2 Strob, Eq. (S. C.) 40, 49 Am. Dec. 654; Com. v. Lee, 
 120 Ky. 433, 86 S. W. 990, 89 S. W. 731. 
 
 32 Fidelity Trust Co. v. Butler, 91 S. W. 676, 28 Ky. Law Rep. 1268. See, 
 also, post, p. 436. 
 
 33 Strong V. Moe, 8 Allen (Mass.) 125; Kinker v. Streit, 33 Grat. (Va.) 663. 
 
410 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 Though a guardian always intrenches upon the principal of his 
 ward's estate at his qwn peril, the fact that he does so does not nec- 
 essarily bar him from an allowance therefor. The rule, on the con- 
 trary, is well established that the court will approve such a use of 
 the principal by the guardian, without a previous application for 
 leave of the court, where it is clear that the court would have Au- 
 thorized it if application had been made.^* 
 
 CHANGE OF WARD'S DOMICILE BY GUARDIAN 
 
 167. A natural guardian can change his ward's domicile. Other 
 guardians can change the municipal domicile, but, by the 
 weight of authority, they cannot change the state or na- 
 tional domicile. 
 
 There is considerable conflict in the authorities as to the power 
 of a guardian to change the domicile of his ward. In England it 
 is held that, where the guardian is also a parent, the domicile, ac- 
 cording to the rule as between parent and child, follows that of the 
 parent, although the chrld's rights of succession to property may 
 be thereby altered to his prejudice.'" It has been doubted whether 
 a guardian who is not a parent can change the ward's domicile, 
 but the question does not seem to have been passed upon by the 
 English courts.'" In this country the rule is uniform, as in Eng- 
 land, that a natural guardian may in good faith change his ward's 
 domicile from one state or county to another.'' In a late Iowa 
 case it was held that the paternal grandfather of an orphan child, 
 
 3* Lee V. Brown, 4 Ves. 362; Prince v. Hine, 26 Beav. 634; In re Boyes' 
 Estate, 151 Cal. 143, 90 Pac. 454; Browne v. Bedford, 4 Dem. Sur. (N. X.) 
 304 ; In re Putney, 61 Misc. Rep. 1, 114 N. T. Supp. 556 ; Jarret v. Andrews, 
 7 Bush (Ky.) 312; Barton v. Bo wen, 27 Grat. (Va.) S49; Weathersbee v. 
 Blanton, 31 S. C. 604, 9 S. E. 817; Calhoun v. Calhoun, 41 Ala. 369; Eose- 
 borough V. Eoseborough, 3 Baxt. (Tenn.) 314; Long v. Norcom, 37 N. C 354; 
 Bellamy v. Thornton, 103 Ala. 404, 15 South. 831 ; Maupin's Ex'r v. Dulany's 
 Devisees, 5 Dana (Ky.) 589, 30 Am. Dec. 699. 
 
 35 Potinger v. Wightman, 3 Mer. 67; Johnstone v. Beattie, 10 Clark & F. 42. 
 
 3"Eversley, Dom. Eel. 692; Dicey, Dom. 100; Jac. Dom. § 254. 
 
 87 Jac. Dom. § 260; Holyoke v. Haskins, 5 Pick. (Mass.) 20, 16 Am. Dec. 372; 
 Pedan v. Robb's Adm'r, 8 Ohio, 227 ; In re Kiernan, 38 Misc. Eep. 394, 77 N. 
 Y. Supp. 924 ; LAMAR v. MICOU, 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Bd. 751, 
 Cooley Cas. Persons and Domestic Relations, 230 ; In re Benton, 92 Iowa, 202, 
 60 N. W. 614, 54 Am. St. Rep. 546; ante, p. 392. 
 
§ 167) CHAN(3E OF WAED'S DOMICILE BY GUARDIAN , 417 
 
 being the chijd's nataral guardian, could change his domicile to 
 another state.'* 
 
 It seems also to be the uniform rule in this country that guard- 
 ians, other than natural guardians, may change the municipal dom- 
 icile of the ward ; that is, that they may change it from one place 
 to another in the same state. It was said in a New York case: 
 "In the present instance the residence of the infant has been chang- 
 ed from one county to another, but still has been retained under 
 the sovereignty of the same laws. This, I have no doubt, is com- 
 pletely within the scope of the guardian's authority. No rights 
 are impaired or affected by the act, the jurisdiction of the state is 
 preserved, and no other consequence flows from the change of 
 residence than the substitution of one ofiScer in the place of another 
 — a result entirely conformable to those purposes of convenience 
 contemplated by the statute in regulating the appointment of a 
 guardian by the surrogate of the county where the infant re- 
 sides." '* Whether or not a guardian, who is not a natural guard- 
 ian, has the power to change his ward's domicile from one state or 
 county to another, without the court's consent is a question on 
 which the decisions conflict.*" 
 
 In all cases, in the absence of statutory restrictions on its power, 
 a court of chancery jhas the power to restrain the removal of a 
 child, where its interests will be injuriously affected. The court, 
 as the protector of infants, has this power, even as against a nat- 
 ural guardian, though it must be a very extreme or special case 
 
 38 In re Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Eep. 546. But see 
 Marheineke v. Grothaus, 72 Mo. 204. 
 
 3 Ex parte Bartlett, 4 Bradf . Sur. (N. Y.) 221. And see Jac. Dom. § 257 ; 
 Kirkland v. Whately, 4 Allen (Mass.) 462; LAMAR v. MICOU, 112 U. S. 452, 
 5 Sup. Ct. 221, 28 L. Ed. 75a., Cooley Cas. Persons and Domestic Relations, 230 ; 
 Anderson v. Anderson's Estate, 42 Vt. 350, 1 Am. Rep. 334. But the domicile 
 of the guardian is nof> necessarily that of the ward. School Directors v. 
 James, 2 Watts & S. (Pa.) 568, 37 Am. Dec. 525. 
 
 40 Daniel v. Hill, 52 Ala. 430; Mears v. Sinclair, 1 W. Va. 185; Ex parte 
 Bartlett, 4 Bradf. Sur. (N. Y.) 221; Seiter v. Straub, 1 Dem. Sur. (N. Y.) 264; 
 School Directors v. James, 2 Watts & S. (Pa.) 568, 37 Am. Dec. 525; Wilklns' 
 Guardian, 146 Pa. 585, 23 Atl. 325 ; LAMAR v. BIICOU, 112 U. S. 452, 5 Sup. 
 Ct. 221, 28 L. Ed. 751, Cooley Oa.s. Persons and Domestic Relations, 230. But 
 see Pedan v. Robb's Adm'r, 8 Ohio, 227; Townsend v. Kendall, 4 Minn. 412 
 (Gil. 315), 77 Am. Dec. 534; Wood v. Wood, 5 Paige (N. Y.) 596, 28 Am. Dec. 
 451 ; Smidt v. Benenga, 140 Iowa, 399, 118 N. W. 439 ; White v. Howard, 52 
 Barb. (N. Y.) 294; Wheeler y. HoUis, 19 Tex. 522, 70 Am. Dec. 363; In re 
 Afflick's Estate, 3 MacArthur (D. C.) 95. 
 TIFF.P.& D.Rel.(3d Ed.)— 27 
 
418 RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 to induce it to interfere." In the case of testamentary, chancery, 
 or Statute guardians, it will not hesitate to interfere where its 
 interference is necessary for the child's protection.*^ 
 
 MANAGEMENT OF ESTATE— GUARDIANSHIP AS A 
 
 TRUST 
 
 168. A guardian is a trustee, and therefore — ^, 
 
 (a) He carinot reap any benefit from the use of his ward's prop- 
 
 erty. 
 
 (b) He cannot purchase at a sale of his ward's property. 
 
 (c) He cannot sell his own property to his ward. 
 
 16^. The ward has all the rights, as against the guardian, that a 
 cestui que trust has against the trustee. And therefore — 
 
 (a) He may ratify the wrongful use of his property by the guard- 
 
 ian, and claim all profits arising therefrom, or repudiate the 
 transaction and hold the guardian to account. 
 
 (b) He may repudiate purchases of his real estate by his guard- 
 
 ian, and claim a resulting trust. 
 
 (c) He may trace and reclaim personal property converted by his 
 
 guardian, when it can be identified. 
 
 The relation of guardian and ward is that of trustee and cestui 
 que trust.*^ Whenever the guardian makes use of the ward's prop- 
 erty with the object of reaping a personal advantage, or does any 
 act which would amount to a breach of trust, either in fact or in 
 law, the ward, on attaining his majority, may either ratify the trans- 
 action, and take any profit arising from it, or repudiate it, and re- 
 quire the guardian to account.** 
 
 *iCreuze v. Hunter, 2 Cox, Ch. 242; De Manneville v. De Manneville, 10 
 Ves. 52 ; Wellesley v. Wellesley, 1 Dow. & C. 152 ; Wood v. Wood, 5 Paige (N. 
 Y.) 596, 28 Am. Dec. 451. i 
 
 *2 Wood V. Wood, 5 Paige (N. Y.) 596, 28 Am. Deq. 451. 
 
 *3 1 Story, Eq. Jur. § 317; 2 Pom. Eq. Jur. 961; Mathew v. Brise, 14 Beav. 
 341; Duke of Beaufort v. Berty, 1 P. Wms. 703; Gilbert v. Schwenck, 14 Mees. 
 & W. 488 ; -Wall v. Stanwlck, 34 Ch. Div. 763 ; Smith v. Smith (D. C.) 210 Fed. 
 947, affirmed 224 Fed. 1, 139 C. C. A. 465; In re Toman's Estate, 110 111. App. 
 135 ; White v. Parker, 8 Barb. (N. Y.) 48 ; Pepper v. Stone, 10 Vt. 427 ; Isaacs 
 V. Taylor, 3 Dana (Ky.) 600. 
 
 a 2 Kent, Comm. 229; Docker v. Somes, 2 Mylne & K. 655; Seguin's Appeal, 
 103 Pa. 139 ; White v. Parker, 8 Barb. (N. Y.) 48 ; Kyle v. Bamett, 17 Ala. 306; 
 Kennaird v. Adams, 11 B. Mon. (Ky.) 102; Sparhawk v. Allen, 21 N. H. 9; 
 Heard v. Daniel, 20 Miss. 451; Chorpenning's Appeal, 32 Pa. 315, 72 Am. Dec. 
 
§§ 168-169) MANAGEMENT OP WAED'S ESTATE 419 
 
 Equity requires the Utmost good faith in all transactions between 
 guardian and ward.*" ■ The guardian must protect the ward's estate, 
 and is not allowed tcmake any profit on it outside that which is 
 lawfully allowed him for conducting the trust.*" He may not trade 
 with himself on account of the ward, or use or deal with the ward's 
 property for his own benefit.*^ 
 
 A purchase by a guardian at a sale of the ward's property will 
 be set aside, as against hitn, not only when he has taken an undue 
 advantage,** but, by the weight of authority, even when the sale 
 was fairly made, and for an adequate price, on the ground that a 
 trustee will not be allowed to place himself in a position where his 
 interests may be inconsistent with his duty.*' "An inclination has 
 been manifested by some of the English judges, and perhaps by 
 some of the courts in this country, to look into the transaction, 
 when a trustee has purchased the trust property, and to make its 
 
 789. Where a duly recorded mortgage was assigned to a guardian, who there- 
 after, as agent of a third party, negotiated a loan to the mortgagors for a 
 payment on the mortgage, receiving as security another mortgage on the same 
 land, he had no authority to postpone his security as guardian to the second 
 mortgage. Covey v. Leslie, 144 Mich. 165, 107 N. W. 900. 
 
 *5 Pevehouse v. Adams, 52 Okl. 495, 153 Pac. 65. 
 
 46 Brandau v. Greer, 95 Miss. 100, 48 South. 519, 21 Ann. Oas. 1118. 
 
 *^ CJharles v. Witt, 88 Kan. 484, 129 Pac. 140. 
 
 4sLeFevre v. Laraway, 22 Barb. (N. T.) 167; Hay ward v. Bll,is, 13 Piclj. 
 (Mass.) 272 ; Mann v. McDonald, 10 fiumph. (Tenn.) 275. 
 
 *8 2 Pom. Bq. Jur. § 481; Gary v. Gary, 2 Sch. & L. 173 ; Ex parte James, 8 
 Ves. 348 ; Davoue v. Fanning, 2 Johns. Oh. (N. Y.) 252 ; Michoud f^tJirod, 4 
 How. 503, 11 L. Ed. 1076 ; Scott v. Preeland, 7 Smedes & M. (Miss.) 409, 45 Ami 
 Dec. 310 ; Sunter v. Sunter, 190 Mass. 449, 77 N. E. 497 ; In re TANNBK'S ES- 
 TATE, 218 Pa. 361, 67 Atl. 646, Cooley Gas. Persons and Domestic Kelations, 
 219 ; Ghorpenning's Appeal, 32 Pa. 315, 72 Am. Dec. 789 ; Morgan v. Johnson, 
 68 111. 190 ; LeFevre v. Laraway, 22 Barb. (N. T.) 167; Beal v. Harmon, 38 
 Mo. 435; Taylor v. Oalvert, 138 Ind. 67, 37 N. E. 531. In Haynes v. Mont- 
 gomery, 96 Arlr. 573, 182 S. W. 651, a purchase by the guardian of the ward's 
 land at mortgage foreclosure sale was held invalid. In Waldstein v. Barnett, 
 112 Ark. 141, 165 S. W. 459, it was held that a guardian, purchasing his ward's 
 property, was chargeable with notice that the ward had a special homestead 
 Interest In the property and was bound to inform the ward of that fact he- 
 fore purchasing, and cannot excuse a failure to do so by claiming that he was 
 ignorant thereof. A guardian's wife cannot lawfully acquire property of his 
 wards, which the law forbids him to acquire. Brandau v. Greor, 95 Miss. 
 100, 48 South. 519, 21 Ann., Oas. 1118. To. bring a case within the operation 
 of this rule, "the relation," said tlie Pennsylvania court in Ghorpenning's Ap- 
 peal, supra, "must be one in which knowledge, by reason of the confidence re- 
 posed, might be acquired, or power exists to affect injuriously the interests of 
 cestuis que trustept, or advance that of the trustee. The reason of the law 
 is its life, and, unless some advantage might be gained by reason of the rela- 
 
420 EIGHTS, DUTIES, AND LIABILITIES OP GUAEDIANS (Ch. 12 
 
 validity rest upon its fairness.'" The decided weight of authority, 
 however, is the other way. The sale may be set aside at the option 
 of the cestui que trust, as a matter of course. * * * This is the 
 safest rule. It removes temptation from the trustee. If he is per- 
 mitted, under any circumstances, to become a purchaser of the trust 
 estate, the deepest frauds may be cloaked under the guise of fair- 
 ness, and exclude the possibility of proof." " As against a subse- 
 quent purchaser from the guardian, a different question is present- 
 ed. Such sale is not void, but voidable only, and an innocent pur- 
 chaser for value from the guardian would acquire a good title.''' If 
 a guardian sells his own property to the ward, the rule is the same. 
 The transaction is voidable, at the option of the ward, on attaining 
 his majority, or before. '^ 
 
 A purchase of a ward's property by the guardian, or a sale by 
 the guardian of his own property to the ward, is, as stated above, 
 merely voidable at the option of the ward. He may ratify it aft- 
 er attaining his majority, in which case, if he has full knowledge 
 6f his rights, and is not unduly influenced by the guardian, he can- 
 not afterwards avoid it. And his ratification may be implied from 
 his conduct. Thtis it may be implied from an unreasonable delay 
 in taking steps to have the transaction set aside after attaining his 
 majority, provided he had full knowledge of his rights.'* So, al- 
 so, the receipt by the ward, on becoming of age, of the value of his 
 property purj:has€d by the guardian, or the use of property sold to 
 him by his guardian^ is an affirmance of the transaction, and ren- 
 /ders it binding." 
 
 tion, the principle does not apply." It was therefore held in that case that 
 a guardian may purchase the interest of his ward when the sale is made by a 
 public officer, and is inevitable. In this case, land in which minors had an 
 interest as heirs was sold by the sheriff under an execution against the per- 
 sonal representative of their ancestor, and their guardian, who had no funds 
 of the wards, purchased at the sale. The purchase was sustained. See, also, 
 Prevost V. Gratz, Fed. Cas. No. 11,406 ; Fislv v. Sarber, 6 Watts & S. (Pa.) 18. 
 
 5 Blrod V. Lancaster, 2 Head (Tenn.) *j71, 75 Am. Dec. 749. 
 
 61 Scott V. Freeland, 7 Smedes & M. (Miss.) 409, 45 Am. Dec. 310. 
 
 szWyman v. Hooper, 2 Gray (Mass.) 141; Morrison v. Kinstra, 55 Miss. 71; 
 Taylor v. Brown, 55 Mich. 482, 21 N. W. 901. 
 
 68 Hendee v. Cleaveland, 54 Vt. 142. 
 
 B<i 2 Kent, Comm. 238; Scott v. Freeland, 7 Smedes & M. (Miss.) 409, 45 Am. 
 Dec. 310; Hoyt v. Sprague, 103 U. S. 613, 26 L. Ed. 585 ; Teipel v. Vander- 
 weier, 36 Mlim. 443, 31 -N. "W. 934; Cassedy v. Casey, 58 Iowa, 326, 12 N. W. 
 286 ; Sherry v. Sansberry, 3 Ind. 320; In re Wood, 71 Mo. 623 ; Trader v. Lowe, 
 45 Md. 1. _ 
 
 6 6 Scott V. Freeland, 7 Smedes & M. (Miss). 409, 45 Am. Dec. 310; Caplinger 
 V. Stokes, Meigs (Tenn.) 175. 
 
§§ 168-169) lUNAGEMENT OP WARD'S ESTATE 421 
 
 A guardian should not mingle the ward's funds with his own, but 
 should deposit moneys in bank in a separate account."* All the au- 
 thorities agree that if the guardian deposits his ward's moneys, not 
 only in his own name, but together with funds of his own-, he is 
 liable if they are lost by a failure of the bank ; and, by the weight of 
 authority, he is so liable if he merely makes the deposit in his own 
 name, without disclosing the true character of the fund, though 
 there is no mingling of it with his own moneys; for he thus ob- 
 tains personal credit on the appearance of owning the deposit, 
 which is an advantage to himself from the management of the 
 ward's money's.'' ' In a Maryland case, a guardian, before the fail- 
 ure of a bank, had deposited his ward's money in his own name, 
 and taken certificates of deposit therefor, but he did not give notice 
 of his fiduciary relation to the deposit. It was held that he must 
 bear the loss of the deposit from a failure of the bank, though there 
 was no mingling of the money with his own funds, and though he 
 made on the certificates an indorsement that they were the property 
 of his ward. The court said : "At the same time that this court 
 feels itself bound to shield a trustee from harm in the honest and 
 faithful discharge of his duties in his fiduciary character, it is 
 bound studiously to exercise a vigilant care in protecting the in- 
 terests of those who, from their tender years, are incapable of pro- 
 tecting themselves. No principle seems to be better settled than 
 that, in such a case as this, any loss arising from a misplaced con- 
 fidence in the solidity of a banking institution, or other depositories 
 of trust property, must be borne by the trustee, and not by his ces- 
 tui que trust. By making the deposit in his own name, he gained 
 a credit with the bank, and reaped all the advantages which could 
 be derived from the apparent ownership of the sum deposited, as- 
 suming his authority so to make such a deposit; and, having re- 
 ceived the benefit, the law declares, and justice seems to require, 
 that he should bear the loss. Nor is there any peculiar hardship in 
 
 56 In re AUard's Guardianship, 49 Mont. 219, 141 Pac. 661. 
 
 6 7 2 Pom. Eq. Jur. § 1067 -; Wren v. Kirton, 11 Ves. 377; Fletcher v. Walker, 
 3 Madd. 73; Macdonnell v. Harding, 7 Sim. 178; Jenkins v. Walter, 8 Gill & J. 
 (Md.) 218, 29 Am. Dee. 539 ; McAllister v. Com., 30 Pa. 536 ; Williams v. Wil- 
 liams, 55 Wis. 300, 12 M. W. 465, 13 N. W. 274, 42 Am. Bep. 708; BOOTH v 
 WILKINSON, 78 Wis. 65:^, 47 N. W. 1128, 23 Am. St. Hep. 443, Cooley Gas. Per- 
 sons and Domestic Eelations, 217 ; Vaiden t. Stubblefield's Ex'r, 28 Grat. (Va.) 
 153. But see Davis v. Harman, 21 Grat. (Va.) 194; Parsley's Adm'r t. Mar- 
 tin, 77 Va. 376, 46 Am. Hep. 733. 
 
422 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 the establishment of such a principle, which would deter a prudent 
 trustee from assuming upon himself the responsibilities of such a 
 fiduciary relation as it is at all times in his power to avoid any 
 risk or responsibility by clothing the transaction in its true colors, 
 and making the deposit, not in his own name, but in the name of 
 him who is the real owner, and for whom he is trusted." °* And, by 
 the weight of authority, the liability of the guardian is the same in 
 any other case where he invests his ward's funds in his own name." 
 Some of the courts have adopted a less stringent doctrine, and 
 require some want of good faith on the part of the guardian to ren- 
 der him liable for a loss happening without his fault. The Vir- 
 ginia court has held, for instance, that the mere fact that the guard- 
 ian deposits the ward's funds in his /own name is not, alone, suffi- 
 cient to render him liable on failure of the bank, where there is 
 no mingling of the funds with his own, and he acts in perfect good 
 faith, and not for his personal advantage. °'' In this case two of the 
 five judges dissented, and the great weight of authority is against 
 the decision. °^ 
 
 Right of Ward to Follow Trust Property 
 
 The right of a cestui que trust to follow the trust estate, when 
 wrongfully disposed of by the trustee, is thus clearly stated in Mr. 
 Fetter's work on Equity : "Where trust property has been wrong- 
 fully disposed of by the trustee, the cestui que trust may assert his 
 right to the specific property in two ways : (a) He may follow it 
 into the hands of the person to whom it has been wrongfully con- 
 veyed by the trustee, unless such person is a bona fide purchaser 
 for value without notice of the trust, (b) He may attach and fol- 
 low the property that has been substituted for the trust estate so 
 long as the substituted property can be "traced." °^ 
 
 8 Jenkins v. Walter, 8 Gill & J. (Md.) 218, 29 Am. Dec. 539. 
 
 B» Knowlton v. Bradley, 17 N. H. 458, 43 Am. Dee. 609 ; In re Wood's Estate 
 and Guardianship, 159 Gal. 466, 114 Pac. 992, 36 L. R. A. (N. S.) 252 ; White v. 
 Parker, 8 Barb. (N. T.) 48. In Knowlton v. Bradley, supra, it was held that 
 a guardian taking a note payable to himself individually, without a designa- 
 tion of his official capacity, cannot show, on the failure of the debtor, that it 
 was taken for the funds of his ward. But see Barney v. Parsons' Guardian, 
 54 Vt. 623, 41 Am. Rep. 858. 
 
 80 Parsley's Adm'r v. Martin, 77 Va. 376, 46 Am. Rep. 733. 
 
 81 See the cases in notes 57-59, supra, in many of which the facts were sim- 
 ilar to those in .Tenkiiis v. Walter, 8 Gill & J. (Md.) 218, 29 Am. Dec. 539. See, 
 particularly, Williams v. Williams, 55 Wis. 300, 12 N. W. 465, 13 N. W. 274, 
 42- Am. Rep. 708. 
 
 62 Fetter, Eq. 207. 
 
§§ 168-169) MANAGEMENT OF WAED'S ESTATE 423 
 
 This doctrine applies to guardianship. Aside from the wa^rd's 
 right of action on the guardian's bond for misappropriation of trust 
 funds, he may follow and recover the trust property, when it can 
 ,be traced and identified, into whosesoever hands it may come, oth- 
 er than purchasers for value without notice, and in whatsoever 
 form it may take. If, for instance, a guardian invests trust funds, 
 in his own name, in a negotiable note or other security, the ward 
 may claim the note or other security, not only in the hands of the 
 guardian, but also in the hands of his transferees, provided they 
 are not purchasers for value, without notice of the character of the 
 security, as trust property."^ So if the guardian unlawfully pur- 
 chases property, real or personal, with the funds of his ward, there 
 is a resulting trust for the ward, "so that he may either claim a 
 beneficial right to the property, or, 'at his election, claim a lien upon 
 the property, for the security of the money invested in it; and, if 
 the trustee sell, the purchaser from him with notice of the trust, 
 stands in the shoes of the trustee." °* Guardianships are trusts, 
 and "trusts are not only enforced against those persons who are 
 rightfully possessed of the trust property as trustees, but against 
 all persons who come into possession of the property bound by the 
 trust, with notice of such trust." °° 
 
 So long as the ward's property can be identified in the hands of 
 the guardian in whatever form it may take the ward is entitled to 
 recover it as against the guardian's creditors in case of his insolven- 
 cy or bankruptcy. Thus where a guardian invested his ward's 
 funds in a promissory note payable to his own order and died in- 
 solvent, it was held that the ward was entitled to recover the full 
 'amount of the note from the estate.*" But, if the property of the 
 ward is mingled with that of the guardian in such a way that its 
 
 S3 Carpenter v. McBride, 3 Fla. 292, 52 Am. Dec. 379. And see Brown v. 
 Dunham, 11 Gray (Mass.) 42; Burdeau v. Davey, 43 La. Ann. 585, 9 South. 752. 
 
 64 Turner v. Street, 2 Rand. (Va.) 404, 14 Am. Dec. 792 ; Durling v. Ham- 
 mar, 20 N. J. Eq. 220; Boisseau v. Boisseau, 79 Va. 73, 52 Am. Eep. 616; Sterl- 
 ing V. Arnold, 54 Ga. 690; Armitage v. Snowden, 41 Md. 119; Morrison v. Kin- 
 stra, 55 Miss. 71 ; Beazley v. Harris, 1 Bush (Ky.) 533 ; Robinson v. Robinson, 
 22 Iowa, 427; Patterson v. Booth, 103 Mo. 402, 15 S. W. 543. But where a 
 guardian purchases property on his own credit, and subsequently appropriates 
 his ward's funds to- the payment of his debt therefor, no trust arises in the 
 ward's favor. French v. Sheplor, 83 Ind. 266, 43 Am. Rep. 67; Richardson v. 
 Day, 20 S. G. 412. ' 
 
 8 5 Adair v. Shaw, T Sch. & L. 262. 
 
 88 Brown v. Dunham, 11 Gray (Mass.) 42. 
 
42 1 BIGHTS, DUTIES, AND LIABILITIES OF -GUARDIANS (Ch. 12 
 
 identity is lost, the ward has no rights superior to those of general 
 creditors. "^ 
 
 The ward cannot follow the trust property into the hands of 
 purchasers for value, and without notice, but his remedy in such a 
 case is a'gainst the guardian and his sureties.'* A guardian has 
 the right vto sell the personal property of his ward, if the interests 
 of the ward require him to do so. A purchaser from the guardian 
 has a right to presume that the guardian is acting for the benefit 
 of the ward, and he is not obliged to see to the application of the 
 money paid. A bona fide purchaser, therefore, of the personal prop- 
 erty of a ward from his guardian, will be protected from claims 
 of the ward because of the guardian's breach of trust.'' 
 
 Where the ward has once repudiated an unauthorized investment 
 or disposition of the trust property, and elected to hold the guard- 
 ian and his sureties responsible, he cannot afterwards enforce a 
 trust against the property.'" 
 
 SAME— ACTS IN EXCESS OF AUTHORITY 
 
 170. If a guardian exceeds his authority, though in good faith, he 
 is liable for any resulting loss. If there is benefit instead 
 of loss, the ward may claim the benefit. 
 
 87 Covey V. Neff, 63 Ind. 391 ; Vason v. Bell, 53 Ga. 416. 
 
 88 Field V. Schleffelin, 7 Johns. Ch. (N. Y.) 151, 11 Am. Dee. 441. 
 
 8*9 A person dealing with a guardian, and acquiring property belonging to the 
 wards from him, is not to be regarded as an innocent purchaser of the prop- 
 erty, if the transaction was on the face of it a breach of the trust; and it can 
 make no difference in such case that such person was not guilty of any fraud- 
 ulent intent. Thus, where a guardian unlawfully (post, p. ) used the funds 
 
 of the ward to purchase a real estate for the ward, without leave of court, it 
 was held that, as the breach of trust was apparent on the face of the transac- 
 tion, the vendor of the land, though he may have been innocent of any actual 
 fraudulent intent, was to be regarded as a participant in the breach, and that 
 he was liable for the amount received by him, with interest. Boisseau v. Bois- 
 seau, 79 Va. 73, 52 Am. Rep. 616. So, where a person receives from a guard- 
 ian, in payment of the personal debt of the guardian, money which he knows 
 to belong to the ward, the ward may hold him liable. It will not do for him 
 to say that he acted in good faith, for "the law stamps the transaction as 
 fraudulent, however innocent the intention of the parties ; not actual fraud in 
 this case, but fraud in law, arising from a misapplication of trust funds." 
 Asberry's Adm'r v. Asberry's Adm'r, 33 Grat. (Va.) 470. 
 
 70 Rowley V. Towsley, 53 Mich. 329, 19 N. W. 20; Beam v. Froneberger, 75 N. 
 0. 540; Edmonds v. Morrison, 5 Dana (Ky.) 223; Clayton v. McKinnon, 54 
 Tex. 206. 
 
§ 171) MANAGEMENT OP WAED'S ESTATE 425 
 
 If the guardian acts beyond the scope of his authority, although 
 in good faith and with the best intentions, and such unauthorized 
 transaction is detrimental to the ward, the guardian will be per- 
 sonally liable; but if it is beneficial to the ward the guardian, will 
 be protected, and the ward, take the benefits '^ "In equity, the deal- 
 ing of guardians with the estates of their wards is watched over 
 with a. vigilant jealousy by the chancellor. And while the chan- 
 cellor will often uphold ,and ratify contracts and arrangements made 
 by the guardian which are for the interest of his ward, although 
 there may be no authority or express sanction of law for the special 
 course he may have pursued, yet, if such contract or arrangement 
 be detrimental to the estate of the ward, it is the province and the 
 duty of courts of equity to vacate and set it aside. It is upon a 
 similar principle of natural justice that the infant or minor, when 
 he attains his majority, is permitted to make his election to adopt 
 and^ confirm the contracts of his guardian without authority of law 
 in and about his estate, when they are to his advantage, and to 
 repudiate them if he deem them injurious. If the guardian sell the 
 land of his ward without being authorized by law, the ward has 
 his election to accept the price, or reclaim the land, when he comes, 
 of age, no matter who has become the purchaser." "^ 
 
 SAME— DEGREE OF CARE REQUIRED 
 
 171. A guardian is bound to exercise ordinary care and prudence, 
 and no more, in the management of his ward's estate. 
 
 In the management of the ward's estate, the guardian must ex- 
 ercise ordinary prudence and care, and such prudence and care 
 only. If he acts as a prudent man of business would do under sim- 
 
 71 Milner v. Harewood, 18 Ves. 259; May v. Duke, 61 Ala. 53; In re Mells, 
 64 Iowa, 391, 20 N. W. 486; Jackson v. Sears, 10 Johns. (N. Y.) 435 ; Capehart 
 V. Huey, 1 Hill, Eq. (S. C.) 405 ; Eichelberger's Appeal, 4 Watts (Pa.) 84 ; Smith 
 V. Dibrell, 31 Tex. 239, 98 Am. Dec. 526. "It is a well-settled principle of 
 equity that wherever a trustee, or one standing in a fiduciary character, deals 
 with the trust estate for his own personal profit, he shall account to the ces- 
 tui que trust for all the gain which he has made. If he uses the trust money 
 in speculations, dangerous, though profitable, the risk will be his own, but 
 the profit will inure to the cestui que trust. Such a rule, though rigid. Is nec- 
 essary to prevent malversation." Barney v. Saunders, 16 How. 043 14 L Ed 
 1047. , - ,. • - 
 
 72 Smith V. Dibrell, 31 Tex. 239, 98 Am. Dec. 526. 
 
426 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 ilar circumstances in the management of his own affairs, and a 
 loss results, he will not be held responsible, if he acted within 
 the scope of his authority and in good faith." So where a guard- 
 ian, in the use of due care, deposits the ward's funds in a bank re- 
 garded as solvent, to remain for such time as may be reasonably 
 necessary for the same to be invested under order of court, he is 
 not liable for a loss resulting from the failure of the bankJ* But 
 for losses caused by his negligence or inexcusable mismanagement 
 he will be held to account; '° and if he deposits money in bank for 
 a fixed period under an unauthorized agreement, whereby his right 
 to withdraw the money is suspended for such period, he is liable 
 for a loss occurring through the failure of the bank.''^ 
 
 So where a guardian received a note, as part of the property of 
 his ward, executed by a person who had property sufficient to pay 
 it, and failed either to obtain security for its payment, or to obtain 
 judgment on it, though he had sufficient time and opportunity to 
 
 ^3 Ex parte Belchier, Amb. 218; Speight v. Gaunt, 9 App. Cas. 1; LAMAR 
 V. MICOU, 112 U. S. 462, 5 Sup. Ct. 221, 28 L. Ed. 751, Cooley Cas. Persons and 
 Domestic Relations, 230 ; Taylor v. Kellogg, 103 Mo. App. 258, 77 S. W. 130 ; 
 Scoville V. Brock, 79 Vt. 449, 65 Atl. 577, 118 Am. St. Rep. 975; Walker v. 
 Thompson, 145 Ky. 597, 140 S. W. 1045 ; In re Wood's Estate and Guardian- 
 ship, 159 Cal. 466, 114 Pac. 992, 36 L. R. A. (N. S.) 252; Layne v. Clark, 152 
 Ky. 310, 153 S. W. 437; Holeman v. Blue, 10 111. App. 130; State v. Morrison, 
 68 N. C. 162; Walker v. Walker, 42 Ga. 135; Barney' v. Parsons' Guardian, 54 
 Vt. 623, 41 Am. Rep. 858; Glover v. Glover, MeMul. Eq. (S. C.) 153; Taylor v. ' 
 Hite, 61 Mo. 142. It is the policy of the courts to sustain if possible, irregu- 
 lar acts of a guardian, v^hen done in good faith and vnthout detriment to the 
 estate. DufCy v. McHale, 35 R. I. 16, 85 Atl. 36. 
 
 r* Murph V. McCullough, 40 Tex. Civ. App. 403, 90 S. W. 69 ; In re Law, 
 144 Pa. 499, 22 Atl. 831, 14 L. R. A. 103 ; Corcoran v. KostrometinofE, 164 Fed. 
 685, 91 C. O. A. 619, 21 L. R. A. (N. S.) 399 ; In re Wood's Estate and Guard- 
 ianship, 159 Cal. 466, 114 Pac. 992, 36 L. R. A. (N. S.^ 252. 
 
 7 5 Kimball v. Perkins, 130 Mass. 141; Covey v. Leslie, 144 Mich. 165, 107 N. 
 W. 900; Shurtleff v. Rile, 140 Mass. 213, 4 N. B. 407; Pierce v. Preseott, 128 
 Mass. 140; Royer's Appeal, 11 Pa. 36; Balthaser's Appeal, 133 Pa. 338, 19 Atl. 
 403 ; Potter v. Hiscox, 30 Conn. 508 ; Boaz's Adm'r v. Milliken, 83 Ky. 634 ; 
 Harris v. Harrison, 78 N. C. 202. 
 
 7<iMui-ph V. McCullough, 40 Tex. Civ. App. 403, 90 S. W. 69. See, also, 
 Evans' Estate, 7 Pa. Super. Ct, 142, when the guardian left the larger part of 
 his ward's money in bank uninvested for four years and was held liable for 
 loss by failure of the bank, though there was no bad faith. And in Collins v. 
 Gooch, 97 N. C. 186, 1 S. E. 653, 2 Am. St. Rep. 284, it was held that it did 
 not show prudence on the part of the guardian to deposit his ward's money 
 in bank in another state. A guardian is personally liable for a loss of funds, 
 deposited with a bank for a fixed period on a cei^tificate of deposit, without 
 security. Corcoran v. Kostrometinoff, 164 Fed. 685, 91 0. C. A. 619, 21 L. E. 
 A. (N. S.) 399. 
 
§ 172) MANAGEMENT OP WARD'S ESTATE 427 
 
 do SO, and allowed all the property of the maker, which he had 
 assigned for the benefit of creditors, to be distributed to other 
 creditors, it was held that he was guilty of negligence, and was lia- 
 ble to the ward for the amount of the note and interest thereon. 
 "While a court," it was said, "is always loth to surcharge a trus- 
 tee with money that never came into his hands, and exacts from 
 him only reasonable and ordinary care in such matters, it will not 
 do for a guardian to utterly neglect his duties in the care and man- 
 agement of his ward's estate. Ordinary prudence in this instance 
 would have saved his ward's money, and we are not measuring 
 his responsibility by any higher standard. It is not too much to 
 say that, had this been hisi own money, in all probability it would 
 not have been lost ; and he oiight not to have been less vigilant in 
 his ward's interest than he would have been in his own." ''"' In 
 another case it was said in reference to a guardian's liability for 
 negligence: "A fiduciary relation requires vigilance as well as 
 honesty. A dead and sluggish calm — a supine negligence — is full 
 of peril to the minor. It is often as fatal as positive dishonesty." " 
 
 SAME— COLLECTION AND PROTECTION OF PROPERTY 
 
 —ACTIONS * 
 
 172. It is the guardian's duty to collect and protect his ward's prop- 
 erty of every description. To this end, 
 
 (a) He may. bring suit— 
 
 (1) In his ward's name generally. 
 
 (2) In his own name on contracts made by him as guardian. 
 
 (b) He may accept property in settlement of claims, 
 
 (c) He may compromise claims. 
 
 (d) He may submit to arbitration. 
 
 In this country a guardian has the general management of the 
 ward's estate, and acts largely according to his own discretion, and 
 at his own risk, subject, of course, to the supervision of the court in 
 the settlement of his accounts. His duties and powers are, in the 
 main, those of all trustees. On his qualification as a guardian, it 
 is his right and duty to take possession of the. ward's property, of 
 
 " Balthaser's Appeal, 133 Pa. 338, 19 Atl. 403. 
 '8 Koyer's Appeal, 11 Pa. 36. 
 
428 RIGHTS, DUTIES, AND LIABILITIES OF GUAEDIANS (Cll. 12 
 
 every description,^* and wherever situated.^" It is his duty to 
 make every reasonable effort to reduce choses in action to posses- 
 sion, and to enforce any claim which the ward may have either 
 to real or to personal property." And, of course, when it is neces- 
 sary, he may maintain suits for this purpose.'^ A guardian will be 
 charged with. loss resulting from negligence in failing to perform 
 these duties." This is true where a guardian neglects to take steps 
 
 7 9 Pierce v. Prescott, 128 Mass. 140. Damages recovered in an action for 
 personal injuries should be paid to the guardian, and not to the ward's next 
 friend. City of Austin v. Colgate (Tex. Civ. App.) 27 S. W. 896. 
 
 8 Potter V. Hiscox, 30 Conn. 508. 
 
 81 United States Fidelity & Guaranty Go. v. State, 40 Ind. App. 136, 81 N. 
 B. 226; Ware V. "Ware, 28 Grat. (Va.) 670 ; Longino v. Delta Bank, 75 Miss. 407, 
 23 South. 178. He may delegate the pov^er to perform any ministerial act, 
 such as the receiving of money due the ward. Forbes v. Reynard, 113 App. 
 Div. 306, 98 N. T. Supp. 710. 
 
 82 Smith V. Bean, 8 N. H. 15; Shepherd v. Evans, 9 Ind. 260; Bryson v. Coll- 
 mer, 33 Ind. App. 494, 71 N. E. 229; Rousk v. Griffith, 65 W. Va. 752, 65 S. E. 
 168 ;' "Wright v. Cosmopolitan Life Ins. Ass'n, 154 111. App. 201 ; Taylor v. Re- 
 miss, 110 U. S. 42, 3 Sup. Ot. 441, 28 L. Ed. 64. The guardian has the same 
 <;ontrol over his action as any other suitor has. South Bend Land Co. v. Den- 
 io, 7 "Wash. 303, 35 Pac. 64. In BorufC v. Stlpp, 126 Ind. 32, 25 N. E. 865, it 
 was contended that a guardian could not maintain replevin to recover posses- 
 sion of his ward's property ; that an action for this purpose should be brought 
 by the infant's next friend, under the statute allowing him to sue by next 
 friend. In overruling this contention, the court said: "The right of action 
 for the possession is not necessarily in the infant, when he has a legally ap- 
 pointed guardian, claiming the possession and custody o£ the personal prop- 
 erty. No doubt, an infant may, by his next friend, in some instances, prose- 
 cute an action for the possession of personal property; but the guardian, hav- 
 ing the custody of the infant and the management of his estate, may also 
 prosecute an action for the possession of personal property owned by his 
 ward. Having the right to the control and management of the property, he 
 must, as a necessary iucident, have the right to recover possession of such 
 property from one unlawfully retaining the possession of the same." 
 
 saCaffrey v. Darby, 6 Ves. 488; Tebbs v. Carpenter, 1 Madd. 290; Balthas- 
 er's Appeal, 133 Pa. 338, 19 Atl. 403 (ante, p. 426) ; Caney v. Bond, 6 Beav,486; 
 Pierce v. Prescott, 128 Mass. 140 ; "White v. Parker, 8 Barb. (N. Y.) 48 ; Bond 
 v. Lockwood, 33 111. 212 ; Covington v. Leak, 65 N. C. 594 ; Carrillo v. McPhil- 
 lips, 55 Cal. 130; Gulp v. Lee, 109 N. 0. 675, 14 S. B. 74; Dodson v. McKelvey, 
 93 Mich. 263, 53 N. "W. 517; Boaz's Adm'r v. Milliken, 88 Ky. 634. See 
 ABRAMS V. UNITED STATES FIDELITY cS: GUARANTY CO., 127 "Wis. 579, 
 106 N. W. 1091, 5 L. R. A. (N. S.) 575, 115 Am. St. Rep. 1055, Cooley Cas. 
 Persons and Domestic Relations, 222, holding that where a guardian has in- 
 trusted a claim to an attorney for collection for the benefit of the wards, and 
 has received the amounts collected in bank drafts or checks which she indorsed 
 and returned to the attorney for investment, she is liable for loss of funds 
 through the default of the attorney. The existence of a good debt or demand 
 due the ward at the time of the guardian's appointment, and its subsequent 
 
§ 172) MANAGEMENT OP WARD'S ESTATE 429 
 
 to enforce payment of a note due his ward/* or where he fails to re- 
 cover possession of real estate belonging to his ward, or to enforce 
 any other property right of his ward. "In obtaining possession 
 of the ward's estate, as well as in its preservation and disposition, a 
 guardian is held to the same degree of responsibility as is imposed 
 upon executors, administrators, and trustees. It is his duty to 
 recover all the property of his ward which cpmes to his knowledge, 
 whether in possession or in action. He must use due diligence to 
 discover its existence. He is bound to use that care and prudence 
 which competent and faithful men employ in their own business. 
 If he has knowledge of all the facts upon which the title of his ward 
 depends, then it is a breach of duty on his part not to assert and 
 enforce that title. It is an obligation assumed by accepting the 
 guardianship, for the neglect of which the guardian cannot excuse 
 himself by pleading ignorance of the law on which the rights of 
 his ward depend. If the estate suffers loss by such ignorance, the 
 guardian is chargeable with it, on the ground of constructive neg- 
 ligence." *° Of course, if the guardian exercises ordinary prudence 
 in his management of the estate, and is guilty of no negligence, he 
 cannot be held liable for losses. If he exercises ordinary prudence, 
 therefore, he will not be held liable because a claim becomes worth- 
 less though it might have been collected when he was appointed.^" 
 Suits brought on behalf of the estate should ordinarily be in the 
 ward's name,*' but the prevailing rule is that, on a contract made 
 
 loss, raise a presumption that the loss resulted from his negligence. ROTJSH 
 V. GRIFFITH, 65 W. Va. 752, 65 S. E. 168, Cooley Oas. Persons and DomesUc 
 Relations, 226. 
 
 8* Monget V. Walker, 4 La. Ann. 214; Coggins v. Flythe, 113 N. C. 102, 18 
 S. E. 96. But when a guardian acted in good faith in the purchase of a note, 
 exercising reasonable and proper care, he is not liable because of failure to 
 realize on the note the amount expected at the time of the purchase. Hen- 
 derson V. Lightner, 92 S. W. 945, 29 Ky, Law Rep. 301. 
 
 85 Pierce v. Prescott, 128 Mass. 140. 
 
 88 Stem's Appeal, 5 Whart. (Pa.) 472, 34 Am. Dec. 569; Waring v. Darnall, 
 10 Gill & J. (Md.) 127; Love v. Logan, 69 N. O. 70 ; ante, p. 425. 
 
 8T Hutchins v. Dresser, 26 Me. 76; Vincent v. Starks, 45 Wis. 458; Sillings v. 
 Bumgardner, 9 Grat. (Va.) 273; Bradley v. Amidon, 10 Paige (N. Y.J 235; 
 Biggs V. Zaleski, 44 Conn. 120 ; Perine v. Grand Lodge, 48 Minn. 82, 50 N. W. 
 1022 ; McMullen v. Blecker, 64 W. Va; 88, 60 S. E. 1093, 131 Am. St.'Rep. 894; 
 Taylor V. Superior Court, 30 R. I. 200, 74 Atl. 482; Dennison v. Willcut, 3 
 Idaho, 793, 35 Pac. 698; Longstreet v. Tilton, 1 N. J. Law, 38. See, also, Cainp- 
 beai V. Fichter, 168 Ind. 645, 81 N. B. 661, 11 Ann. Cas. 1089, holding that a 
 guardian is not a trustee of an express trust within Bums' Ann. j St. 1901, § 
 252, providing that a trustee of an express trust may sue without .ioining with 
 
430 RIGHTS, DUTIES, AND LIABILITIES OF GT7AKDIANS (Ch. 12 
 
 by the guardian jn the course of the management of the estate, he 
 should sue in his own name.*' In the exercise of a proper discre- 
 tion he may accept real or personal property in settlement of a 
 claim,*' but he cannot ordinarily accept payment for less than the 
 full amount of an enforceable debt."" It would be otherwise if in 
 the exercise of good faith, and to save expense.'^ A guardian may 
 also compromise claims against the ward's estate, and a submission 
 to arbitration by him is authorized, and will be binding."^ 
 
 Where suit is reasonably brought by a guardian to recover or 
 protect his ward's property, his expenses for attorney's fees and 
 costs will be allowed out of the ward's estate. °' Allowance will 
 also be made for reasonable counsel fees paid for advice in the 
 management of the trust, and for legal services rendered in any liti- 
 gation concerning the ward's estate.'* But the guardian cannot 
 
 Mm the person for ■whose benefit the action is prosecuted. An action for per- 
 sonal injuries to the ward must be brought in the name of the ward. Pieper 
 V. Shahid, 101 S. O. 364, 85 S. E, 90-1. And see Patterson v. Melchior, 102 
 Minn. 363, 113 N. W. 902. 
 
 88 Pondv. Curtiss, TWend. (N. Y.) 45; Thomas v. Bennett, 56 Barb. (N. T.) 
 197 ; McKinney v. Jones, 55 Wis. 39, 11 N. W. 606, 12 N. W. 381 ; Hightower 
 V. MauU, 50 Ala. 495 ; Sainsevain v. Luce, 4 Cal. Unrep. 496, 35 Pac. 1033. 
 
 8 » Mason v. Buchanan, 62 Ala. 110. 
 
 »o Darby r. Stribling, 22 S. C. 243; ICnights Templars' & Masons' Life In- 
 demnity Co. V. Crayton, 110 111. App. 648, affirmed in 209 111. 550, 70,N. B. 1066. 
 
 81 Blue v. Marshall, 3 P. Wms. 381; Torry v. Black, 58 N. Y. 185; Ordinary 
 V. Dean, 44 N. J. Law, 64. 
 
 82 Weston V. Stuart, 11 Me. 326; Hutchins v. Johnson, 12 Conn. 376, 30 Am. 
 Dec. 622 ; Weed v. Ellis, 3 Caines (N. Y.) 254; Goleman v. Turner, 14 Smedes 
 & M. (Miss.) 118; Strong v. Beroujon, 18 Ala. 168; Nashville Lumber Co. v. 
 Barefield, 93 Ark. 353, 124 S. W. 758, 20 Ann. Cas. 968; Grievance Committee 
 V. Ennis, 84 Conn. 594, 80 Atl. 767 ; Dwyer v. Corrugated Paper Products Co., 
 80 Misc. Rep. 412, 141 N. Y. Supp. 240 ; Kelley v. Adams, 120 Ind. 340, 22 N. E. 
 317 ; Jones v. Bond, 76 Ga. 517. But not where the interests of the guardian 
 and ward are antagonistic. Fortune v. Killebrew, 86 Tex. 172, 23 S. W. 976. 
 A guardian may not confess judgment against his ward. Boudreaux v. Low- 
 er Terrebonne Refining & Mfg. Co., 127 La. 98, 53 South. 456. A parent has 
 no implied authority to compromise or settle a cause of action of his infant 
 child. Missouri Pac. Ry. Co. v. Las'ca, 79 Kan. 311, 99 Pac. 616, 21 L. R. A. 
 (N. S.) 338, 17 Ann. Cas. 605. 
 
 8sln re Flinn, 81 N. J. Eq. 640; Alexander v. Alexander, 5 Ala. 517; 
 BickerstafC v. Marlin, 60 Miss. 509, 45 Am. Rep. 418; Sears v. Collie, 148 
 Ky. 444, 146 S. W. 1117 ; Succession of Hanna, 135 La. 1043, 66 South. 355 ; 
 Taylor v. "Bemiss, 110 U. S. 42, 3 Sup. Ct. 441, 28 L. Ed. 64. And so, also, for 
 defending suits. Mathes v. Bennett, 21 N. H. 204; Wilhelm v. Hendrick, 167 
 Ky. 219, 180 S. W. 516. But an improvident contract will not be upheld. 
 Wheeler v. James & James (Ky.) 120 S. W. 350. 
 
 siVoessing v. Voessing, 4 Redf. Sur. (N, Y.) 360; State v. Foy, 65 N. 0. 
 265; Moore v. Shields, 69 N. C. 50; Alexander v. Alexander, 8 Ala. 796; 
 
§§ 173-174) MANAGEMENT OF WARD'S ESTATE 431 
 
 charge his ward with attorney's fees made necessary by his own 
 ' negligence."" 
 
 SAME— INVESTMENTS 
 
 173. A guardian must invest his ward's funds within a reasonable 
 
 time; and if he fails to do so he will be charged interest, 
 or, in case of gross delinquency, compound interest. 
 
 174. He cannot invest money on the credit of individuals or firms, 
 
 nor, in some states, in stock in corporations, nor can he 
 convert personalty into real estate, without leave of court, 
 but generally he is only called upon to use the care of a 
 prudent man of business. 
 
 It is the duty of the guardian, as soon as it can reasonably be 
 done to advantage, to invest, his ward's funis in productive se- 
 curities.'" He is usually allowed a reasonable period, varying 
 from six months to a year for this purpose, and where he unrea- 
 sonably delays he will be charged interest."' Where the guardian 
 uses the ward's money in his business, or otherwise converts it to 
 his own use, or is guilty of gross delinquency in his failure to invest, 
 he will be charged with compound interest.'* ' 
 
 Caldwell v. Young, 21 Tex. 800. Also for clerk hire. ■ McWhorter v. Benson, 
 Hopk. Ch. (N. T.) 28; Van Derheyden v. Van Derhejden, 2 Paige (N. Y.) 287, 
 21 Am. Dec. 86. 
 
 95 Rawson V. Oorbett, 43 111. App. 127. 
 
 98 The surety on a guardian's bond may, through the proper court, compel 
 the guardian to make a proper and lawful investment of the ward's money, 
 American Surety Co. v. Sperry, 171 111. App. 56. 
 
 97 2 Kent^ Comm. 231; GofC's Guardian v. Goff, 123 Ky. 73, 93 S. W. 625, 
 29 Ky. Law Kep. 501 ; Murph v. McCuUough, 40 Tex. Civ. App. 403, 90 S. W. 
 69 ; Corcoran v. Reneban, 24 App. D. O. 411 ; Merritt v. Wallace, 76 Ark. 
 217, 88 S. W. 876; Boynton v. Dyer, 18 Pick. (Mass.) 1; Worrell's Appeal, 
 28 Pa. 44 ; Karr's Adm'r v. Karr, 6 Dana (Ky.) 3 ; White v. Parker, 8 Barb. 
 (N. X.) 48; Dunscomb v. Dunscomb, 1 Johns. Ch. (N. T.) 508, 7 Am. Dec. 
 504; Owen v. Peebles, 42 Ala. 338; Pettus v. Sutton, 10 Rich. Eq. (S. C.) 
 356; Crosby v. Merriam, 31 Minn. 342, 17 N. W. 950; Armstrong's Heirs v. 
 Walkup, 12 Grat. (Va.) 60S; Barney v. Saunders, 16 How. 535, 14 L. Ed. 
 1047 ; Rawson v. Corbett, 43 111. App. 127. No interest will- be charged on 
 what is kept on hand for ordinary current expenses. Knowltou v. Bradley, 
 17 N. H. 458, 43 Am. Dec. 609, Baker's Appeal, 8 Serg. & R. (Pa.) 12. A 
 guardian is not liable for interest during the first year after his appointment 
 unless there is interest earned. Griffin v. Collins, 125 Ga. 159, 53 S. E. 1004. 
 
 8 2 Kent, Comm. 231; Glassell v. Glassell, 147 Cal. 510, 82 Pac. 42; Far- 
 well V. Steen, 46 Vt. 678 ; Swindall v. Swindall, 43 N. C. 285 ; Stark v. Gam- 
 ble, 43 N. H. 465; Clay v. Clay, 3 Mete. (Ky.) 548; Snavely v. Harkrader, 
 
432 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 The authorities as to the character of the investments which a 
 guardian or other trustee is authorized to make are not in accord. 
 Investments are allowed in some states which are not allowed in 
 others. "The general rule is everywhere recognized, that a guard- 
 ian or trustee, when investing property in his hands, is bound to 
 act honestly and faithfully, and to exercise a sound discretion, such 
 as men of ordinary prudence and intelligence, use in their own af- 
 fairs." "' In some jurisdictions no attempt has been made to es- 
 tablish a more definite rule.^ In others 'the discretion has been 
 confined by the Legislature or the courts within strict limits. 
 
 Prior to the Declaration of Independence the Court of Chancery 
 in England allowed considerable latitude to guardians and other 
 trustees in the investment of trust funds. They could invest, not 
 only in putjlic funds and real estate securities, but also in stock 
 in private corporations.^ They could not, however, by the weight 
 of authority, invest in a mere personal obligation, like a promissory 
 note, without other than private, security.^ Later the court limited 
 trust investments to the public funds, and excluded investments in 
 bank stock, or other corporate stock, or in mortgages of real estate. 
 In this sta,te of the law. Parliament passed acts, and orders in chan- 
 cery were made pursuant thereto, authorizing trustees to invest in 
 
 29 Grat. (Va.) 112: Eoynton v. Dyer, 18 Pick. (Mass.) 1; Barney v. Saunders, 
 16 How. 535, 14 I>. Ed. 1047 ; Hughes v. People, 111 111. 457; In re Eschrlch, 
 85 Cal. 98, 24 Pac. 634. But see Goff's Guardian v. GofE, 93 S. W. 625, 29 
 Ky. Law Rep. 501, holding that if a guardian uses the ward's estate in his 
 own business, or mingles the ward's money with his own, so that it becomes 
 undistinguishable, he must account for at least legal Interest; and, if he 
 made a greater profit, he must account for that also. 
 
 8 9 LAMAE V. MICOU, 112 U. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751, Cooley 
 (jas. Persons and Domestic Relations, 230. A guardian, complying with an or- 
 der as to Investment of funds Is protected against loss, if otherwise free 
 from negligence. Mumford v. Rood, 36 S. D. 80, 153 S. W. 921. 
 
 i LAMAR y. MICOTJ, 112 J. S. 452, 5 Sup. Gt. 221, 28 ly Ed. 751, Cooley Gas. 
 Persons and Domestic Relations, 230 (collecting authorities) ; Boggs v. Ad- 
 ger, 4 Rich. Eq. (S. C.) 408, 411; Brown v. Wright, 39 Ga. 96; Foscue v. 
 Lyon, 55 Ala. 440; Brown v. Campbell, Hopk. Oh. (N. T.) 233; Harvard 
 College V. Amory, 9 Pick. (Mass.) 446, 461 ; LoveU v. Minot, 20 Pick. (Mass.) 
 116, 119, 32 Am. Dec. 206; Brown v. French, 125 Mass. 410, 28 Am. Rep. 
 254; Bowker v. Pierce, 130 Mass. 262. 
 
 2 Jackson v. .Tackson, 1 Atk. 513, 514. 
 
 3 Ryder v. Bickerton, 3 Swanst. 80, note ; Adye v. Feuilleteau, 1 Cox, Ch. 
 24; Holmes v. Dring, 2 Cox, Oh. 1; Powell v. Evans, o Ves. 839. But see 
 Knight V. Plimouth, 3 Atk. 480 ; Harden v. Parsons, 1 Eden, 145. 
 
§§ 173-174) MANAGEMENT OP WAED'S ESTATE 433 
 
 stock of the Bank of England or of Ireland, or upon real estate 
 securities as well as in the public funds.* 
 
 In this country the courts are not entirely agreed as to what are 
 to be deemed proper investments by a guardian or other trustee. 
 In some states the question is regulated by statute. Perhaps in all 
 the states he is authorized to invest in public or real securities, like 
 government bonds and real estate mortgages.'* Perhaps in most, 
 states he may invest in stock in corporations, like railroad and bank 
 stock." In some states such an investment is not authorized.'' By 
 the great weight of authority, guardians and the sureties on their 
 bonds are responsible for losses occurring through unsecured, or 
 insufficiently secured, loans or investments made on the credit of 
 individuals or firms, however solvent the individual or firm may 
 be when the loan or investment is made — mere personal security 
 
 * LAMAR V. MICOU, 112 U-. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751, Oooley Ca's. 
 Persons and Domestic Relations, 230. 
 
 5 Gray v. Pox, 1 N. J. Bq. 25&, 22 Am. Dec. 508; Stevens v. Meserve, 73 
 N. H. 293, 61 Atl. 420, 111 Am.. St. Rep. 612; In re Wlsner's Estate, 145 
 
 ■Iowa, 151, 123 N. W. 978; Worrell's Appeal, 9 Pa. .^08: Nance v. Nance, 1 
 S. O. 209; Smith v. Smith, 7 J. J. Marsh. (Ky.) 238. But see In re Wood's 
 Estate, 247 Pa. 478, 93 Atl. 634. 
 
 6 Lovell V. Minot, 20 Pick. (Mass.) 116, 32 Am. Dec. 206 ; Harvard College 
 V. Amory, 9 Pick. (Mass.) 446, 461 ; Brown v. French, 125 Mass. 410, 28 Am! 
 Rep. 254 ; Bowker v. Pierce, 130 Mass. 262 ; Smyth v. Burns' Adm'rs, 25 Miss. 
 422; Hammond v. Hammond, 2 Bland (Md.) 306; Gray v. Lynch, 8 Gill 
 (Md.) 403; Murray v. Feinour, 2 Md. Ch. 418; Boggs v. Adger, 4 Rich. Eq. 
 (S. C.) 408; Haddock v. Bank, 66 Ga. 496; Fidelity Trust & Safety Vault 
 Co. v. Glover, 90 Ky. 355, 14 S. W. 343 ; Durett v. Com., 90 Ky. 312, 14 S. 
 W. 189. Where corporate stock is held a good investment, a guardian may 
 invest in a note secured by such stock. Lovell v. Minot, supra. 
 
 7 In many states the rule is against such an investment. In a New York 
 case it was said: "It is pot denied that the employment of the fund, as a 
 japital in trade, would be a clear departure from the duty of trustees. If 
 it cannot be so .employed under the management of a copartnership, I see no 
 reason for saying that the incorporation of the partners tends, in any degree, 
 to justify it. The moment the fund is invested in bank or insurance or rail- 
 road stock, it has left the control of the trustees. Its safety arid the hazard 
 or risk of loss is no longer dependent upon their skill, care, or discretion in 
 its custody or management ; and the terms of the investment do not contem, 
 plate that it ever will be returned to the trustees." King v. Talbot, 40 N. X. 
 
 ' 76. And see Worrell's Appeal, 9 Pa. 508; Allen v. Gaillard, 1 S. C. 279; 
 French v. Currier, 47 N. H. 88; Gray v. Fox, 1 N. J. Eq. 259, 268, 22 Am. 
 Dec. 508; Halsted v. Meeker's Ex'rs, 18 N. J. Eq. 136; Lathrop v. Smal- 
 ley's Ex'rs, 23 N. J. Eq. 192 ; Ihmsen's Appeal, 43 Pa. 431 ; Smith v. Smith, 
 7 J. J. Marsh. (Ky.) 238. An unauthorized investment of a ward's funds is 
 not void, but voidable only, as against one who takes the ward's property 
 with knowledge that the guardian has no authority to transfer it. McCutch- 
 en V. Roush, 139 Iowa, 351, 115 N. W. 903. A guardian cannot, without au- 
 TIFF.P.& D.Eei..(3d Ed.)— 28 
 
434 RIGHTS, DUTIES, AND LIABILITIES OF GUAEOIANS (Ch. 12 
 
 not being deemed sufficient.' And it is well settled that a guardian 
 has no authority to subject his ward's estate to the hazards of trade, 
 and that if he does so, and a loss instead of a profit, results, he and 
 his sureties will be responsible." 
 
 A guardian cannot, without leave of court first obtained, change 
 the form of the investment ^" or convert personalty into real estate, 
 as by investing, his ward's funds in the purchase of land.^^ Nor 
 can he erect buildings on land of the ward, or make permanent addi- 
 tions to buildings already thereon.^^ But he may pay taxes and 
 
 thority from the probate court, accept shares in a corporation to be or- 
 ganized for the ward's interest in the estate. Davidson v. I. M. Davidson 
 Eeal Estate & Investment Co., 226 Mo. 1, 125 S. W. 1143, 136 Am. St. Rep. 
 615. 
 
 8 dark V. Garfield, 8 Allen (Mass.) 427 ; -Smith v. Smith, 4 Johns. Ch. (N. 
 Y.) 281; Gray v. Pox, 1 N. J. Bq. 259, 22 Am. Dec. 508; In re Moore, 112 
 Me. 119, 90 Atl. 1088, Ann. Cas. 1917A, 645 ; Clay v. Clay, 3 Mete. (Ky.) 548 ; 
 Covington v. Leak, 65 N. C. 594; Boyett v. Hurst, 54 N. C. 166. But see 
 Konigmacher v. Kimmel, 1 Pen. & W. (Pa.) 207, 21 Am. Dec. 374. In North 
 Carolina 'it seems that an investment in a note with sureties is good. Co- 
 vington V. Leak, 65 N. C. 594. And in some states investments in the unse- 
 cured personal obligation of an individual or firm have been sustained. See 
 Foscue V. Lyon, 55 Ala. 440, 4.52. Money placed temporarily in bank at in- 
 terest, though it can only J)e withdrawn on two weeks' notice, is not an in- 
 vestment; and, if the bank is in good repute, the guardian will not be liable 
 if it subsequently fails. Law's Estate, 144 Pa. 499, 22 Atl. 831, 14 L. E. A. 
 103. It is otherwise where money is invested in a certificate of deposit of 
 a bank in another state. Such an investment is at the guardian's risk. 
 Collins V. Gooch, 97 N. C. 186, 1 S. E. 653, 2 Am. St. Rep. 284. 
 
 » Martin v. Davis, 80 Wis. 376, 50 N. W. 171 ; Michael v. Locke, 80 Mo. 548; 
 Corcoran v. Allen, 11 R. I. 567. See Hoyt v. Sprague, 103 TJ. S. 613, 26 L. 
 Ed. 585. Where a guardian purchased railroad stocks and bonds, and sold " 
 the bonds for a sum equal to the amount invested, and afterwards sold the 
 stocks for an amount which was clear profit, he was liable for the proceeds 
 of the stcfeks. Martinez v. Meyers, 181 Ala. 293, 61 South. 810. The reten- 
 tion of money in his own hands, giving a note therefor, is not an "invest- 
 ment." Fidelity & Deposit CO. v. Freud, 115 Md. 29, 80 Atl. 603. 
 
 10 Moyers v. Kinnick, 1 Tenn. Ch. App. 65; Los Angeles County v. Winans, 
 13 Cal. App. 234, 109 Pac. 640; McCutchen v. Roush, 13P Iowa, 351, 115 
 N. W. 903. 
 
 112 Kent, Comm. 230; Perry, Trusts, §§ 605, 606; Witter v. Witter, 3 P. 
 Wms. 99; Ware v. Polhill, 11 Ves. 257; Royer's Appeal, 11 Pa. 36; Woods 
 V. Boots, 60 Mo. 546; Boisseau v. Bpisseau, 79 Va. 73, 52 Am. Rep. 616; Skel- 
 ton V. Ordinary, 32 Ga. 266. A guardian may not purchase real estate, where 
 the purchase price exceeds the funds available, thus creating a debt against 
 the estate. Harris v. Preston, 153 Ky. 810, 158 S. W. 902. The court may 
 by general order authorize a guardian to invest the ward's money in real es- 
 tate. In re-Wisner's Estate, 145 Iowa, 151, 123 N. W. 978. 
 
 12 Murphy v. Walker, 131 Mass. 341 ; Burke & Williams v. Mackenzie, 124 
 6a. 248, 52 S. B. 653; In re Miller's Estate, 1 Pa. 326; Snodgrass' Appeal, 
 
§§ 173-174) MANAGEMENT OP WARD'S ESTATE 435- 
 
 incumbrances from the income of the estate, when necessary for 
 the preservation of the property, and he will be reimbursed there- 
 for, though he has acted without the previous sanction of the 
 court.^* 
 
 When the matter is not regulated by statute, or settled by judi- 
 cial precedent in the particular jurisdiction, a guardian will general- 
 ly be protected where he uses such care as would be exercised by 
 a prudent man of biisiness in selecting a security for an investment,, 
 and not for speculation.^* "If a trustee acts with good faith, and 
 a sound discretion, in the investment of trust funds, he is not to 
 be held responsible for any loss which may happen." ^^ "All that 
 can be required of a trustee to invest is that he shall conduct him- 
 self faithfully, and exercise a sound discretion. He is to observ.e 
 how men of prudence, discretion, and intelligence manage their 
 own affairs, not in regard to speculation, but in regard to the per- 
 manent disposition of their funds, considering the probable income, 
 as well as the probable safety, of the capital to be invested." ^^ 
 When a guardian is appointed in a state which is not his ward's 
 domicile, he should not, in accounting for his investments, be held 
 to a narrower range of securities than is allowed by the law of the 
 domicile.^^ , 
 
 37 Pa. 377; Hassard v. Bowe, 11 Barb. (N. Y.) 22; Copley v. O'Neil, 39 How.. 
 Prac. (N. Y.) 41 ; Green v. Winter, 1 Johns. Ch. (N. Y.) 26, 7 Am. Dec. 475 ; 
 Cheney v. Roodhouse, 135 111. 257, 25 N. B. 1019 ; Payne v. Stone, 7 Smedes 
 & M. (Miss.) 867. But see May v. May, 109 Mass. 257, where the cost of a 
 building erected for use, and not for an investment, was allowed the guardian 
 of an insane ward, the court saying: "It could not be said to be an unrea- 
 sonable expenditure for a man of like fortune and circumstances, not under 
 guardianship; and we think the fact of guardianship furnishes no sufficient' 
 ground, In the present case, for its disallowance." 
 
 IS Wright V. Comley, 14 111. App. 551 ; March v. Bennett, 1 Vern. 428 ; Wa- 
 ters V. Ebrall, 2 Vern. 606. 
 
 14 Clark V. Garfield, 8 Allen (Mass.) 427; Harvard College v. Amory, 9 Pick. 
 (Mass.) 446; Lovell v. Minot, 20 Pick. (Mass.) 116, 32 Am. Dec. 206; Konig- 
 macher v. Klmmel, 1 Pen. & W. (Pa.) 207, 21 Am. Dec. 374 ; KJing v. Talbot,. 
 40 N. Y. 76 ; Nance v. Nance, 1 S. C. 209 ; Jack's Appeal, 94 Pa. 367 ; Gary 
 V. Cannon, 38 N. C. 64. 
 
 15 Clark V. Garfield, 8 Allen (Mass.) 427; Henderson v. Lightner, 92 S. W. 
 945, 29 Ky. Law Rep. 301 ; Stevens v. Meserve, 73 N.' H. 293, 61 Atl. 420, 111 
 Am. St. Rep. 612. 
 
 18 Harvard College v. Amory, 9 Pick. (Mass.) 446. 
 
 1' LAMAR V. MICOU, 112 V. S. 452, 5 Sup. Ct. 221, 28 L. Ed. 751, Cooley 
 
436 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 ' SAME— CARE OF REAL ESTATE 
 
 175. A guardian must lease his ward's lands, keep the buildings in 
 repair, and collect the rents. But he has no authority to 
 allow any use of the lands which would amount to waste. 
 
 The guardian may lease his ward's lands, and it is his duty to do 
 so,^^ and to collect the rents therefrom. ^° His authority to lease 
 extends only for the term of the ward's minority, and a lease for a 
 longer time may be avoided by the ward on becoming of age.^" 
 The guardian's control over the ward's land extends only to the 
 use of the same. It has been held that he may cut growing timber, 
 when such use does not amount to waste. ^^ But, since he cannot 
 dispose of his ward's real estate without an order of court, his lease 
 of mineral lands for development, being a grant of part of the cor- 
 pus of the land, would be without authority.^^ If the guardian 
 occupies the ward's land himself, he will be liable for rent,^' as 
 well as for any depreciation caused by improper cultivation.^* He 
 must keep all buildings in repair, if the income of the estate is suffi- 
 
 Cas. Persons and Domestic Eelations, 230; Id., 114 U. S. 218, 5 Sup. Ct. 857, 
 29 L. Ed. 94. 
 
 18 Rex V. Oakley, 10 East, 494 ; Emerson v. Spicer, 46 N. Y. 594 ; Richard- 
 son V. Richardson, 49 Mo. 29; Hughes' Minors' Appeal, 53 Pa. 500; WiUS' 
 Appeal, 22 Pa. 329; Palmer v. Cheseboro, 55 Conn. 114, 10 Atl. 508 ; Walker 
 V. Thompson, 145 Ky. 597, 140 S. W. 1045 ; Rogers v. Harris (Tex. Civ. App.) 
 171 S. W. 809 ; Clark v. Burnside, 15 111. 62. By statute, in some states, he 
 must first obtain leave of court. See Alexander v. BuflBngton, 66 Iowa, 360, 
 23 N. W. 754 ; Gaines v. Gaines, 116 Ark. 508, 173 S. W. 410, Ann. Cas. 1917A, 
 1254 ; Charles v. Witt, 88 Kan. 484, 129 Pac. 140. 
 
 IS Wills' Appeal, 22 Pa. 329; Taylor v. KeUogg, 103 Mo. App. 258, 77 S. W. 
 130 ; Bond v. Lockwood, 33 111. 212; Griffin v. Collins, 125 Ga. 159, 53 S. B. 
 1004. 
 
 2 Emerson v. Spicer, 46 N. T. 594; Rogers v. Harris (Tex. Civ. App.) 171 
 S. W. 809 ; Jackson v. O'Rorke, 71 Neb. 418, 98 N. W. 1068. Under the Ken- 
 tucky statute (Ky. St. 1903, § 2031) a guardian may lease the ward's land un- 
 til the latter shall arrive at full age, provided the lease is not for a longer 
 term than seven years. . Cumberland Pipe Line Co. v. Howard, 100 S. W. 
 270, 30 Ky. Law Rep. 1179. ^ 
 
 21 Thompson v. Boardman, 1 Vt. 367, 18 Am. Dec. 684; Bond v. Lockwood," 
 33 111. 212 ; Torry v. Black, 58 N. Y. 185. But see Bursirk v. Sanders, 70 W. 
 Va. 363, 73 S. B. 937 ; Bettes v. Brower (D. O.) 184 Fed. 342. 
 
 2 2 Stoughton's Appeal, 88 Pa. 198; Haskell v. Sutton, 53 W. Va. 206, 44 S. 
 B. 533. And see Williams' Case, 3 Bland (Md.) 186. 
 
 23 In re Otis, 34 Hun (N. Y.) 542; Royston v. Royston, 29 Ga. 82; Willis 
 V. Fox, 25 Wis. 646 ; In re Tyler, 40 Mo. App. 378. 
 
 21 Willis V. Fox, 25 Wis. 646. 
 
§§ 176-177) MANAGEMENT OF WAED'S ESTATE 437 
 
 cient, and for loss of rent occurring from neglect so to do,"" as well 
 as for injury thereby resulting to the property,'" he will be liable. 
 
 SAME— SALE OF REAL ESTATE 
 
 176. By statute, guardians, on obtaining license from the court, are 
 
 generally empowered to sell their wards' lands to pay 
 debts, or for future maintenance and expenses, where there 
 is not sufficient personal property, and in some states for 
 the purpose of making more advantageous investments. 
 
 177. Sales without license from the court are void, and the same is 
 
 true where the court granting the license had no jurisdic- 
 tion. Sales made in pursuance of a license fromL a court 
 having jurisdiction, though irregular, cannot be collater- 
 ally attacked. 
 
 Some of the courts have held that a court of chancery, as the 
 general guardian of infants within its jurisdiction, has an inherent 
 power to decree a sale of their real estate whenever it is for their 
 advantage to do so,^^ but the weight of authority is to the con- 
 trary.''* In most states, by statute, such power has been expressly 
 conferred, subject to certain restrictions, either upon the court of 
 chancery, or upon the probate or other similar court. In some states 
 power is given to mortgage the estate, under certain circumstanc- 
 es."" The statutes usually authorize sales where the personal prop- 
 erty is insufficient to pay the debts of the ward's estate, and to pro- 
 
 2 5 Smith V. Gummere, 39 N. J. Eq. 27. 
 
 20 Wmis V. Fox, 25 Wis. 646. 
 
 2 7 In re Salisbury, 3 Johns. Ch. (N. Y.) 347; Huger v. Huger, 3 Desaus. (S. 
 C.) 18 ; Stapleton v. Langstaff, Id. 22 ; Williams v. Harrington, 33 N. O. 616, 
 53 Am. Dec. 421; Ex parte Jewett, 16 Ala. 409; Goodman v. Winter, 64 Ala. 
 410, 38 Am. Kep. 13. 
 
 28 Taylor v. Philips, 2 Ves. . Sr. 23 ; Calvert v. Godfrey, 6 Beav. 97 ; Field 
 V. Moore, 25 Law J. Ch. 66 ; Rogers v. Dill, 6 Hill (N. Y.) 415; Baker v. Loril- 
 lard, 4 N. Y. 257 ; Williams' Case, 3 Bland (Md.) 186 (but see Eoche v. Wa- 
 ters, 72 Md. 264, 19 Atl. 535, 7 L. E. A. 533) ; Pierce's Adm'r v. Trigg's Heirs', 
 10 Leigh (Va.) 406 ; Faulkner v. Davis, 18 Grat. (Va.) 651, 98 Am. Dec. 698. 
 
 29 U. S. Mortgage Co. v. Sperry, 138 XJ. S. 313, 11 Sup. Ct. 321, 34 L. Ed. 
 969. On order of court. Bell v. Dingwell, 91 Neb. 699, 136 N. W. 1128. 
 The Missouri statute (Eev. St. 1899, § 3504 [Ann. St. 1906, p. 2000]) author- 
 izes the guardian to mortgage the ward's realty to obtain- money for the edu- 
 cation and maintenance of the ward. It was held, in Capen v. Garrison, 
 193 Mo. 335, 92 S. AV. 368, 5 L. E. A. (N. S.) 838, that authority to raise by 
 mortgage money to discharge a pre-existing incumbrance could not be im- 
 i)lied. But see Stokes v. Payne, 58 Miss. 614, 38 Am. Eep. 340, and Davidson 
 
438 RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 vide for his future support and education and for the expenses of 
 caring for his property,'" and sometimes sales are authorized in 
 order to make more advantageous investments. 
 
 The contract of a guardian to sell his ward's real estate, or a 
 sale and conveyance thereof by him, without an order of court,, is 
 an absolute nullity, for a guardian has no authority to dispose of 
 the real estate of his ward, unless by order of court.'^ "An in- 
 strument conveying land of minors, signed by one representing 
 himself to be their guardian, is wholly inoperative without the 
 production of the precedent orders of a court of competent juris- 
 diction in the premises, and therefore inadmissible as evidence 
 against them. Courts will not presuine the existence of authority 
 to act, in such cases, in the absence of all proof of the existence of 
 the power, and its loss or destruction, even after the lapse of 
 thirty years." *^ An order of the court being necessary to author- 
 ize a guardian to sell and coijivey his ward's real estate, it follows 
 that the sale and conveyance must be in strict compliance with 
 the order; otherwise it is just as much without authority as if 
 there were no order of court at all.*' Unless it is otherwise provid- 
 ed by statute, the court cannot authorize a natural guardian, as 
 such, to dispose of his ward's real estate. The guardian must be 
 a duly appointed guardian of the ward's estate, and he must have 
 qualified as such.'* And, a fortiori, the court cannot authorize a 
 sale by some third person.'" 
 
 V. Wampler, 29 Mont 61, 74 Pac. 82, to the effect that the power to sell does 
 not include the power to mortgage. 
 
 80 Faulkner v. Davis, 18 Grat. (Va.) 651, 98 Am. Dec. 698. 
 
 31 Worth V. Curtis, 15 Me. 228 ; Le Roy v. Jacobosky, 136 N. C. 443, 48 S. 
 E. 796, 67 li. K, A. 977 ; Gault Lumber Co. v. Pyles, 19 Okl. 445, 92 Pac. 175 ; 
 Ayer & Lord Tie Co. v. Witherspoon's Adm'r, 100 S. W. 259, 30 Ky. Law 
 Rep. 1067; Nichols v. Bryden, 86 Kan. 941, 122 Pac. 1119; Touchy v. Gulf 
 Land Co., 120 La. 545, 45 South. 434, 124 Am. St. Rep. 440; Houlihan v. Fo- 
 garty, 162 Mich. 492, 127 N. W. 793; Palmer v. Abrahams, 55 Wash. 352, 104 
 Pac. 648 ; Thacker v. Henderson, 63 Barb. (N. T.) 271 ; Morrison v. Kinstra, 
 55 Miss. 71; Gaylord v. Stebblns, 4 Kan. 42; Downing v. Peabody, 56 Ga. 
 40; Ex parte Kirkman, 3 Head (Tenn.) 517: Mason v. Wait, 4 Scam. (111.) 
 127 ; Wells v. Chaffln, 60 Ga. 677 ; House v. Brent, 69 Tex. 27, 7 S. W. 65 ; 
 Shamleffer v. MUl Co., 18 Kan. 24 ; Washabaugh v. Hall, 4 S. D. 168, 56 N. 
 W. 82. 
 
 3 2 House V. Brent, 69 Tex. 27, 7 S. W. 65. 
 
 33 Cox V. Manvel, 56 Minn. 358, 57 N. W. 1062. As to purchase by guard- 
 ian at sale of ward's property, see ante, p. -419. 
 
 34 Shanks v. Seamonds, 24 Iowa, 131, 92 Am. Dec. 465 ; Myers v McGavock, 
 39 Neb. 843, 58 N. W. 522, 42 Am. St. Rep. 627. 
 
 35 Paty V. Smith, 50 Cal. 153; McKee v. Thomas, 9 Kan. 343. 
 
.§§ 176-177) MANAGEMENT OP WARD'S ESTATE 439 
 
 A sale made under the order of a court having no jurisdiction 
 in the premises is an absolute nullity, and may be attacked in any 
 way and at any time.'" But when the court has jurisdiction a sale 
 made in pursuance of its license cannot be attacked collaterally for 
 irregularities.' ' The courts do not agree as to what requirements 
 of the statutes are jurisdictional." The provision of the statutes 
 in the various states are generally uniform in requiring the guard- 
 ian to execute a special bond binding him to make the sale honest- 
 ly, and to account for the Application of the proceeds in accordance 
 with the objects for which the license was granted. In most states 
 failure to give the bond is held to be jurisdictional, and to render the 
 sale absolutely void,'" but in some states it is held that such a fail- 
 ure will not render the sale open to attack in a collateral proceed- 
 ing.*" The same variance exists in the decisions of the different 
 States as to the necessity of giving notice to the ward. By the 
 weight of authority, such notice is held not to be jurisdictional, 
 on the theory that the proceeding is purely in rem.*^ The court of 
 
 S6 Wells V. Steckleberg, 52 Neb. 597, 70 N. W. 865, 66 Am. St. Rep. 529 ; 
 Harris v. Hopkins, 166 Ky. 147, 179 S. W. 14. 
 
 3^ Beachy v. Shomber, 73 Kan. 62, 84 Pac. 547; Fuller v. Hager, 47 Or. 
 242, 83 Pac. 782, 114 Am. St. Rep. 916; Field v. Peeples, 180 111. 376, 54 N. 
 B. 304 ; Davidson v. Hutchins, 112 Ind. 322, 13 N. E. 106 ; Sockey v. Win- 
 stock, 43 Okl. 758, 144 Pac. 372 ; Hubermann v. Evans, 46 Neb. 784, 65 N. W. 
 1045. 
 
 38 Compare Fuller v. Hager, 47 Or. 242, 83 Pac. 782, 114 Am. St. Rep. 916, 
 and Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485, 76 Am. St. Rep. 70, as to 
 the necessity of oath by the guardian. And see Fender v. Powers, 67 Mich. 
 433, 35 N. W. 80. 
 
 3 », Williams v. Morton, 38 Me. 47, 61 Am. Dec. 229; Tracy v. Roberts, 88 
 Me. 310, 34 Atl. 68, 51 Am. St. Rep. 394 ; Blauser v. Diehl, 90 Pa. 3.50 ; Stewart 
 V. Bailey, 28 Mich. 251; McKeever v. Ball, 71 Ind. 398; Phillips v. Spalding's 
 Guardian, 102 S. W. 1193, 31 Ky. Law Rep. 579; Bamett v. Bull, 81 Ky. 127; 
 Vanderburg v. Williamson, 52 Miss. 233. 
 
 *i) Arrowsmith v. Harmoning, 42 Ohio St. 254; Howbert v. Heyle, 47 Kan. 
 58, 22 Pac. 116 ; Watts v. Cook, 24 Kan. 278; McKinney v. Jones, 55; Wis. 39, 
 11 N. W. 606, and 12 N. W. 381 ; Bunce v. Bunce, 59 Iowa, 533, 13 N. W. 705. 
 But see Weld v. Johnson Mfg. Co., 84 Wis.. 537, 54 N. W. 335, 998. 
 
 41 Mohr T. Manierre, 101 IT. S. 417, 25 L. Ed. 1052; Thaw v. Ritchie, 136 
 U, S. 519, 10 Sup. Ct. 1037, 34 L. Ed. 531; Furr v. Burns, 124 Ga. 742, 53 
 S. E. 201 ; Dexter v. Cranston, 41 Mich. 448, 2 N. W. 674 ; Williams v. Wil- 
 liams, 18 Ind. 345; Doe v. Jackson, 51 Ala. 514; Myers v. McGavock, 39 Neb. 
 843, 58 N. W. 522, 526, 42 Am. St. Rep. 627; Mohr v. Porter, 51 Wis. 487, 8 
 N. W. 364; Mason v. Wait, 4 Scam. (lU.) 127; Mulford v. Beveridge, 78 111. 
 455; Spring v. Kane, 86 111. 580. But see Musgrave v. Conover. 85 111. 374. 
 Contra, Beachy v. Shomber, 73 Kan. 62, 84 Pac. 547 ; Rule v. Broach, 58 Miss. 
 
440 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS {CH. 12 
 
 a county where a ward has real estate may license a foreign guard- 
 ian to sell, when he has complied with the state laws regarding 
 foreign guardians, though the ward is a nonresident.*^ 
 
 SAME— SALE OF PERSONAL PROPERTY 
 
 178. A guardian may sell his ward's personal property without 
 leave of court. 
 
 It is within the scope of the guardian's authority to sell his 
 ward's personal property without first obtaining leave of court," 
 except when he is restricted by some statutory provision.** A 
 guardian ought not to sell his ward's personal property unless the 
 proceeds are needed for the due execution of the trust,^ or unless 
 he can, by the sale, produce some advantage to the estate. Even 
 where he sells it improperly, however, the purchaser will acquite 
 a good title, if there is innocence and- good faith on his part. "Hav- 
 ing the power [to sell] without obtaining any special license or 
 authority, a title under him, acquired bona fide by the purchaser, 
 will be good; for the purchaser cinnot know whether the power 
 has been executed with discretion or not, and the estate is always 
 supposed to be secure by the bond given by the guardian for the 
 faithful execution of his trust, and discreet management of the 
 property." *° 
 
 552; Rankin v. Miller, 43 Iowa, 11; Molir v. Tulip, 40 Wis. 66 (overruled 
 by Mohr v. Porter, supra) ; Tracy v. Roberts, 88 Me. 310, 34 Atl. 68, 51 Am. 
 St. Rep. 394. 
 
 12 Menage v. Jones, 40 Minn. 254, 41 N. W. 972 ; West Duluth Land Co. 
 V. Kurtz, 45 Minn. 380, 47 N. W. 1134 ; Myers v. McGavock, 39 Neb. 843, 58 
 N. W. 522, 42 Am. St. Rep. 627; Bouldin v. Miller (Tex. Civ. App.) 26 S. 
 W. 133. 
 
 43 2 Kent, Comm. 228; Field v. SchiefEelin, 7 Johns. Ch. (N. T.) 150, 11 
 Am. Dec. 441 ; Nashville Lumber Co. v. Barefleld, 93 Ark. 253, 124 S. W. 758, 
 20 Ann. Cas. 968; Cabbie v. Cabbie, 111 App. Div. 426, 97 N. Y. Supp. 773 ; El- 
 lis V. Proprietors, 2 Pick. (Mass.) 243; Hunter v. Lawrence's Adm'r, 11 Grat. 
 (Va.) Ill, 62 Am. Dec. 640 ; Humphrey v. Buisson, 19 Minn. 221 (Gil. 182) ; 
 WaUace v. Holmes, 9 Blatchf. 67, Fed. Cas. No. 17,100. The rule is otherwise 
 in some states us to real estate mortgages. McDuliie v. Mclntyre, 11 S. C. 
 551, 32 Am. Kep. 500. 
 
 i* Hendrix v. Richards, 57 Neb. 794, 78 I>I. W. 378. And see Gentry v. 
 Bearss, 82 Neb. 787, 118 N. W. 1077, construinp; the Oklahoma statute. 
 
 4 B Ellis V. Proprietors, 2 Pick. (Mass.) 243. And see the other cases above 
 cited. 
 
§ 180) FOREIGN GUAKDIAN3 441 
 
 SAME— POWER .TO EXECUTE INSTRUMENTS 
 
 179. Guardians can execute all instruments which are necessary in 
 
 the scope of their trust, but cannot bind the ward or his 
 estate by covenants. 
 
 Guardians have authority to execute all instruments which are 
 necessary, within the scope of the trust. Thus, when a guardian 
 has been authorized by court to sell real estate, he may execute 
 a conveyance of the same.*^ His authority is limited, however, 
 to the transfer of the title. He cannot bind his ward by covenants, 
 but will be personally bound by any covenants therein contained.*^ 
 A guardian, on receiving payment of a mortgage, has authority 
 to discharge it of record.** He can make a binding contr3.ct for 
 the extension of the mortgage,*' or assign it,^° and, on breach of 
 condition, may foreclose.^^ 
 
 FOREIGN GUARDIANS 
 
 180. A guardian's authority is strictly territorial, but foreign 
 
 guardians are recognized, in most states, as a matter of 
 comity, on compliance with certain statutory regulations. 
 
 The authority of a guardian is confined to the county or state 
 of his appointment. His rights are strictly territorial, and unless 
 his appointment is recognized, as a matter of' comity, by a sister 
 state or foreign country, he has no extraterritorial rights in., re- 
 
 *«WMting V. Dewey, 15 Pick. (Mass.) 428; State v. Clart, 28 Ind. 138; 
 Byrd v. Turpin, 62 Ga. 591 ; Young v. Lorain, 11 111. 625, 52 Am. Dec. 463. 
 
 " Whiting V. Dewey, 15 Pick. (Mass.) 428; Young v. Lorain, 11 111. 025, 
 52 Am. Dec. 463; Holyoke v. Clark, 54 N. H. 978. But no Implied covenants 
 arise in a lease by a guardian. "Webster v. C'onley, 46 111. 13, 92 Am. Dec. 234. 
 
 4 8 Chapman v. Tibbits, 33 N. Y. 289; Eiddell v. Vizard, 35 La. Ann. 310; 
 Perkins v. Dyer, 6 Ga. 401. Contra, Freiberg v. De Lamar, 7 Tex. Civ. App. 
 263, 27 S. W. 151, But a mortgage given by a guardian to his ward cannot 
 be satisfied by the guardian withotit authority of court, and payment of the 
 debt. Jennings v. Jennings, 104 Cal. 150, 37 Pac. 704. 
 
 40 Willick V. Taglart, 17 Hun (N. Y.) 511. 
 
 50 Field V. Seliieffelin, 7 Johns. Ch. (N. Y.) 150, 11 Am. Dec. 441; Humphrey 
 V. Buisson, 19 Minn. 221 (Gil. 182). Contra, Mack v. Brammer, 28 Ohio St. 
 508. 
 
 01 Taylor v. Hite, 61 Mo. 142. A guardian has authority to redeem from a 
 foreclosure. Marvin v. Schilling, 12 Mich. 356. 
 
442 EIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. 12 
 
 gard to the person or property of his ward.°^ Thus he cannot as 
 such maintain an action in a state other than the one in which he 
 was appointed, unless authorized so to do by the laws of the state 
 in which the suit is brought.°= The authority of a foreign guard- 
 ian is sometimes recognized as a matter of comity,'* and if a new 
 appointment is required the claims of the foreign guardian to the 
 office will generally be respected.^' In many states there are stat- 
 utory regulations authorizing a foreign guardian to act on comply- 
 ing with certain regulations,^' such as filing a certified copy of 
 his appointment,^' or the giving of a bond, and in some states he 
 must first take out ancillary letters of guardianship.'* An ancillary 
 guardian is not bound to account in the foreign state for funds 
 received there, but should render his account to the court of his 
 original appointment." 
 
 s2 Story, Confl. Laws, §§ 492-529; Whart. Confl. Laws, §1 209-268 ; Ex parte 
 Watkins, 2 Ves. Sr. 470 ; Hoyt v. Sprague, 103 U. S. 613, 2o L. Ed. 585 ; Rice's 
 Case, 42 Mich. 528, 4 N. W. 284; Weller v. Suggett, 3 Redf. Sur. (N. Y.) 249; 
 McLoskey v. Eeid, 4 Bradf. Sur. (N. Y.) 334 ; Rogers v. McLean, 31 Barb. (N. 
 Y.) 304 (but see Preund v. Washburn, 17 Hun [N. Y.] 543) ; Kraft v. Wickey, 
 4 Gill & J. (Md.) 332, 23 Am. Dec. 569; Leonard v. Putnam, 51 N. H. 247, 12 
 Am. Rep. 106 ; Grist v. Forehand, 36 Miss. 69 ; Burnet v. Burnet, 12 B. Mon> 
 (Ky.) 323; Hoffman v. Watkins, 61 Tex. Civ. App. 522, 130 S. W. 625; In 
 re Nickals, 21 Nev. 462, 34 Pac. 250. A settlement by a foreign guardian 
 of a claim for wrongful death of the father of his ward is no bar to a suit 
 in Illinois, as the authority of the guardian is local. Devine r. American 
 Posting Service, 174 111. App. 403. 
 
 saPulver v. Leonard (C. C.) 176 Fed. 586; In re Kingsley (D. C.) 160 Fed- 
 275. 
 
 54 Savini v. Lousada, 22 Law T. (N. S.) 61 ; Nugent v. Vetzera, L. R. 2 Eq. 
 704 ; ■ Stuart v. Bute, 9 H. Tj. Cas. 440; In re Crosswell's Petition, 28 R. I. 137,. 
 66 Atl. 55, 13 Ann. Cas. 874; Curtis v. Union Homestead Ass'n, 126 La. 959, 
 5S South. 63; Woodworth v. Spring, 4 Allen (Mass.) 321; Earl v. Dresser, 30 
 Ind. 11, 95 Am. Dec. 660; Marts v. Brown, 56 Ind. 386; Wells v. Andrews, 60 
 Miss. 373 ; Sims v. Renwick, 25 Ga. 58. 
 
 5 5 In re Crosby, 42 Wash. 366, 85 Pac. 1 ; Grimmett v. Witherington, 16 Ark. 
 377, 63 Am. Dec. 66 ; Earl v. Dresser, 30 Ind. 11, m Am. Dec. 660. 
 
 6 8 Rice's Case, 42 Mich. 528, 4 N. W. 284 ; Hoyt v. Sprague, 103 U. S. 613, 
 26 L. Ed. 585 ; Watt v. AUgood, 62 Miss. 38. 
 
 57 Pulver V. Leonard ,(C. O.) 176 Fed. 586. 
 
 5 8 Ex parte Huffman (C. C.) 167 Fed. 422. 
 
 68 Smoot V. Bell, 3 Cranch C. O. 348, Fed. Cas. No. 13132. 
 
§§ 181-183) INVENTORY AND ACCOUNTS 4^3 
 
 INVENTORY AND ACCOUNTS 
 
 181. Guardians must file an inventory of the estate, and account 
 
 from time to time, and, at the expiration of the guardian- 
 ship, must render a final account. 
 
 182. A final account, when settled and allowed by the court, can 
 
 only be questioned in a direct proceeding on the ground of 
 fraud or mistake. 
 
 183. When the same person is executor or administrator and guard- 
 
 ian, he is liable primarily, as executor or administrator, for 
 funds in his hands due his ward as legatee or distributee, 
 but becomes liable as guardian on charging himself in that 
 capacity. 
 
 It is the duty of the guardian to file an inventory of the estate 
 and to render accounts from time to time, usually annually." 
 And even one who, though not legally appointed as guardian, has 
 acted as such, may be required to account, as guardian de facto, 
 by a court of equity."^ . Neither the inventory °^ nor. such ac- 
 counts °' are conclusive as to the facts therein set forth, but are- 
 prima facie correct, as against the guardian and his sureties,"* or 
 against any one else who disputes their correctness. ''° At the 
 expiration of his term of office the guardian must, in accordance 
 with his general duty, as well, usually, as by the express provisions 
 of his bond, render a final account, and he may be brought into 
 
 8oAlcon V. Koons, 42 Ind. App. 537, 82 N. E. 92; Beem v. Mays, 79 Or. 247, 
 152 Pac. 103; Yeager's Appeal, 34 Pa. 173. See the statutes of the various 
 states. The duty to account Is a continuing one and on the death of the 
 guardian devolves on his administrator. Nelson v. Cowling, 89 Ark. 334, 116 
 S. W. 890. But see Miller v. Ash, 156 Cal. 544, 105 Pac. 600. 
 
 61 Campbell v. O'Neill, 69 W. Va. 459, 72 S. B. 732. 
 
 i 82 Bourne v. Maybin, 3 Woods,'724, Fed. Cas. No. 1,700 ; State v. Stewart, 
 36 Miss. 652; Green v. Johnson, 3 GiU & J. (Md.) 389. 
 
 83 Douglas' Appeal, 82 Pa. 169; Prindle v. Holcomb, 45 Conn. Ill; Guard- 
 ianship of Cardwell, 55 Cal. 137 ; Diaper v. Anderson, 37 Barb. (N. Y.) 168 ; 
 France v. Shockey, 92 Ark. 41, 121 S. W. 10S6; Walker v. Thompson, 145 
 Ky. 597, 140 S. W. 1045. 
 
 6* Davis V. Combs, 38 N. J. Bq. 473 ; State v. Jones, 89 Mo. 470, 1 S. W. 
 355; Bond v. Lockwood, 33 111. 212; State v. Stewart, 36 Miss. 652; Sanders 
 V. Forgasson, 3 Baxt. (Tenn.) 249 ; In re Heath's Estate, 58 Iowa, 36, 11 N. W. 
 723; and cases cited in notes 62 and 63, supra. 
 
 85 Cogging V. Fly the, 113 N. O. 102, 18 S. E. 96. 
 
444 RIGHTS, DUTIES, AND LIABILITIES OF GUAEDIANS (Ch. 12 
 
 / ■ • 
 
 court for that purpose."' This account, when settled and allowed 
 by the court, is, by the weight of authority, conclusive, as against 
 all parties,"' when attacked collaterally, and can only be ques- 
 tioned in a direct proceeding brought for that purpose, on the 
 ground of fraud or mistake."* 
 
 When a person is both executor or administrator and guardian, 
 and receives funds to which his ward is entitled as legatee or dis- 
 tributee, he is not liable in both capacities at once."" He must 
 primarily account for such funds as executor or administrator, and 
 remains liable as such until a settlement in such capacity, in which 
 he is credited with the funds as executor or administrator, and 
 charged as guardian.'" But after the expiration of a reasonable 
 
 6 6 Gilbert v. Guptill, 34 111. 112; Succession of Guillebert, 117 La. 372, 41 
 South. 654; Miller v. Ash, 156 Cal. 544, 105 Pac. 60O; National Surety Co. 
 V. State, 181 Ind. 54, 103 N. E. 105 ; In re Moore, 112 Me. 119, 90 Atl. 1088, 
 Ann. Gas. 1917A, 645 ; Dunn v. Cllnghan, 93 Miss. 310, 47 South. 503 ; Whit- 
 field V. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153; Sroufe v. Sroufe, 74 
 Wash. 639, 134 Pac. 471 ; Walls' Appeal, 104 Pa. 14 ; Say's Bx'rs v. Barnes, 
 4 Serg. & E. (Pa.) 112, 8 Am. Dec. 679; Wade v. Lobdell, 4 Cush. (Mass.) 
 510; .Stark v. Gamble, 43 N. H. 465. Where the ward dies before settlement, 
 the accounting must be with the ward's representative. Livermore v. Ratti, 
 ' 150 Cal. 458, S9 Pac. 327. For the purposes of a settlement a guardianship 
 is deemed to continue after it has in law ceased. Mitchell v. Penny, 66 W. 
 Va. 66,0, 66 S. E. 1003, 26 L. R. A. (N. S.) 788, 135 Am. St. Rep. 104b. 
 
 67Allman v. Owen, 31 Ala. 167 ; McCleary v. Menke, 109 111. 294 ; Candy v. 
 Hanmore, 76 Ind. 125; American Bending Co. v. People, 46 Coloi 394, 104 
 Pac. 81 ; Title Guaranty & Surety Co. v. Sllnker, 35 Okl. 128, 128 Pac. 696 ; 
 Id., 35 Okl. 153, 128 Pac. 698 ; In re Pleasonton's Estate, 232 Pa. 381, 81 Atl. 
 420; Whitfield v. Burrell, 54 Tex. Civ. App. 567, 118 S. W. 153; State 
 V, Leslie, 83 Mo. 60; King v. King, 40 Iowa, 120; Brodrib v. Brodrib, 56 
 Cal. 563. Contra, Henley v. Robb, 86 Tenn. 474, 7 S. W. 190 ; Campbell v. Wil- 
 liams, 3 T. B. Mon. (Ky.) 122; Bourne v. Maybin, 3 Woods, 724, Fed. Cas. No. 
 1,700 ; State v. Miller, 44 Mo. App. 118. 
 
 6 8 Cummings v. Cummings, 128 Mass. 5S2; State v. Leslie, 83 Mo. 60; 
 American Bonding Co. v. People, 46 Colo. 394, 104 Pac. 81 ; Charles v. Witt, 
 88 Kan. 484, 129 Pac. 140; Ackermaun v. Haumueller, 148 Mo. App. 400, 
 128 S. W. 51; Id., 148 Mo. App. 427, 128 S. W. 56; Reed v. Ryburn, 23 Ark. 
 47; McDow v. Brown, 2 S. C. 95 ; Teager's Appeal, 34 Pa. 173. 
 
 09 Wren v. Gayden, 1 How. (Miss.) 365. But, in case of his failure to duly 
 collect such funds as guardian, the sureties on his bond as guardian may also 
 become liable therefor. Harris v. Harrison, 78 N. C. l!02. 
 
 ToConkey v. Dickinson, 13 Mete. (Mass.) 51; Burton v. Tunnell, 4 Har. 
 (Del.) 424; Alston v. Munford, 1 Brock. 266, Fed. Cas. No. 267; Weaver v. 
 Thornton, 63 Ga. 655. His liability as guardian has been held to arise from 
 the time he charged himself as such, without obtaining any order of court, 
 or making a formal settlement. In re Scott's Account, 36 Vt. 297. And see 
 In re Brown, 72 Hun, 160, 25 N. Y. Supp. 694 ; State v. Branch, 112 Mo. 661, 
 20 S. W. 693. Where a legacy is payable at a future date, the executor can- 
 
§ 184) COMPENSATION OF GUARDIAN *45 
 
 time, sometimes determined by the time limited by law for the 
 settlement of estates, it will be presumed that he has transferred 
 the funds, and holds them in his capacity as guardian.''^ Such 
 presumption may be rebutted where the question arises as to lia- 
 bility on his executor's or administrator's bond.''^ The intention 
 to charge himself as guardian may be inferred from his acts in 
 regard to the property in his hands J' 
 
 COMPENSATION OF GUARDIAN 
 
 184. When a gx:iardian has faithfully executed his trust, but not 
 otherwise, he will be allowed compensation for his serv- 
 'ices, in the settlement of his accounts. 
 
 In England guardians receive no compensation for their services, 
 but in this country the rule is otherwise. The rules are different 
 in the various states, but ordinarily guardians receive a certain 
 percentage or commission on receipts and disbursements, the rate 
 being established either by' statute or by the court. In some states 
 no regular percentage is established, but the court allows what is 
 reasonable. ■^^ For any specific services rendered by the guardian, 
 apart from the general management of the estate, a reasonable 
 allowance in addition to his percentage will ordinarily be made, to 
 be determined by the importance and difficulty of the services." 
 
 not render the sureties on Ms bond as guardian liable by prematurely charging 
 liimself as guardian. Swope v. Chambers, 2 Grat. (Va.) 319. 
 
 71 Watkins' Adm'rs v. State, 2 Gill & J. (Md.) 220; Karr's Adm'r v. Karr, 
 6 Dana (Ky.) 3; Townsend v. TaUant, 33 Cal. 45, 91 Am. Dec. 617; In re 
 Wood, 71 Mo. 623 ; Johnson v. Johnson, 2 Hill, Eq. (S. C.) 277, 29 Am. Dec. 
 72 ; Wilson v. Wilson, 17 Ohio St. 150, 91 Am. Dec. 125. 
 
 7 2 Wilson V. Wilson, 17 Ohio St. 150, 91 Am. Dec. 125. 
 
 'SDrane v. Bayliss, 1 Humph. (Term.) 174; Adams v. Gleaves, 10 Lea 
 (Tenn.) 367; Swope v. Chambers, 2 Grat. (Va.) 319; Tittman v. Green, 108 
 Mo. 22, 18 S. W. 885. 
 
 7* May V. May, 109 Mass. 252; McBlhenny's Appeal, 46 Pa. 347; In re 
 Roberts, 3 Johns. Ch. (N. Y.) 43; State v. Foy, 65 N. C. 265; Hughes v. 
 Smith, 2 Dana (Ky.) 251; France v. Shockey, 92 Ark. 41, 121 S. W. 1056; 
 Bell V. Bell's Guardian, 167 Ky. 430, 180 S. W.'SOS; Holcombe v. Holcombe's 
 Ex'rs, 13 N. J. Eq. 415 ; Knowlton v. Bradley, 17 N. H. 458, 43 Am. Dec. 609. 
 And see Trustee of Elizabeth Speers' Memorial Hos.pital v. Makibben's Guard- 
 ian, 126 Ky. 17, 102 S. W. 820. Commissions will be granted in accordance 
 With the law in force at the time of the accounting. In re Chenery's Estate, 
 89 Misc. Rep. 680, 152 N. Y. Supp. 312. 
 
 T»May V. May, 109 Mass. 252; McElhenny's Appeal, 46 Pa. 347; Spath'a 
 
446 RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS (Ch. l2 
 
 But compensation in the nature of a commission on reinvestments 
 of money and repairs has been refused on the ground that it is in 
 conflict with the true nature and purpose of the trust that the 
 guardian should be a gainer by increasing the amount of expendi- 
 tures through frequent changes of investments, or by repairs.''* 
 Commissions are allowed a guardian as compensation for the per- 
 formance of his duty, and when he has failed in such performance 
 the court will not allow him any compensation at all.''^ 
 
 SETTLEMENTS OUT OF COURT— GIFTS FROM WARD 
 
 185. The final settlement of a guardian's accoimt, made with the 
 
 ward out of court, whereby the guardian gains any ad- 
 vantage, will be set aside, unless it appears that the ward 
 has given his deliberate, intelligent, voluntary acquies- 
 cence, or is guilty of laches in asserting his rights. 
 
 186. Gifts from a ward to his guardian, made during the guard- 
 
 ianship, or shortly after its termination, are presumed to 
 have been made under undue influence; and, to uphold 
 them, it must be shown that they were made voluntarily 
 and imderstandingly. 
 
 Any arrangement entered into between a guardian and his ward, 
 whereby the guardian gains an advantage, is looked upon with 
 great suspicion by the court; and, if such an arrangement is to 
 stand, it is incumbent on the guardian to show that he has dealt 
 with his ward exactly as a stranger would have done who was with- 
 out the knowledge of the ward's affairs possessed by him, and that 
 he has not exercised any influence which he may have acquired 
 over- the mind of his ward, to his own advantage, and that he has 
 
 Estates, 144 Pa. 383, 22 Atl. 749 ; Anderson v. Silcox, 82 S. C. 109, 63 S. B. 
 128; Emerson, Appellant, 32 Me. 159; Evarts v. Nason, 11 Vt. 122. 
 
 '8 May V. May, 109 Mass. 252. 
 
 " State V. Eichardson, 29 Mo. App. 595 ; In re Ward, 49 Misc. Rep 181 
 98 N. Y. Supp. 923; Hescht v. Oalvert, 32 W. Va. 215, 9 S. E. 87; Topping v.' 
 Windley, 99 N. C. 4, 5 S. E. 14; In re Wolfe's Estate (Sur.) 2 N. Y. Supp. 
 494 ; Donlon v. Maley, 60 Ind. App. 25, 110 N. E, 92 ; In re Moore, 112 Me. 
 119; 90 Atl. 1088, Ann. Gas. 1917 A, 645; In re Allard's Guardianship, 49 Mont. 
 219, 141 Pac. 661; Pyatt v. Pyatt, 44 N. J. Eq. 491, 15 Atl. 421; Appeal of 
 Fish (Pa.) 7 Atl. 222 ; State v. Gilmore, 50 Mo. App. 353. Mere mistakes in 
 keeping the accounts of the estate, where no fraud is shown will not forfeit 
 the right to compensation. Rogers v. Lindsay, 89 Kan. 417, 131 Pac. 150. 
 
§§ 185-186) SETTLEMENTS OUT OP COURT 447 
 
 brought everything to his ward's knowledge which he himself 
 knew.'* The final settlement of the guardian's account, made out 
 of court, or his purchase of the ward's property shortly after th6 
 termination of the guardianship, or the release hj the ward of 
 any claims against the guardian, will be scrutinized with the great- 
 est care by the courts.'* "In a court of law, the moment of eman- 
 cipation from legal pupilage is the moment of absolute power and 
 unlimited capacity. This court extends its watchfulness further, 
 and requires that a discharge to the guardian shall not be precipi- 
 tated; that ample time shall be allowed for consultation and in- 
 quiry ; that there shall be a full exhibition of the estate, and of its 
 administration. And it requires that a guardian who settles his 
 account in secret shall be prepared to prove that he has fully com- 
 plied with these requisitions, unless he can shelter himself under 
 a positive ratification — a deliberate, intelligent, voluntary acquies- 
 cence — or such a flow of time as will induce the court to refuse its 
 interposition." *" 
 
 '8 Hall V. Turner's Estate, 78 Vt. 62, 61 Atl. 763; Harrison v. Harrison, 
 21 N. M. .372, 15.5 Pac. 356, L. R. A. 1916E, 854 ; Hunter v. Atkins, 3 M.vlne 
 & K. 113, 135; Eevett v. Harvey, 1 Sim. & S. 502; Hylton v. Hylton, 2 Ves. 
 Sr. 547; Allfrey v. Allfrey, 11 Jur. 981. The burden is on the guardian, 
 though he is the parent of the ward and the settlement is made a few days 
 after the ward arrived at full age. Baum v. Hartmann, 226 111. 160, 80 N. 
 E. 711, 117 Am. St. Rep. 246, reversing 122 111. App. 444. 
 
 T9 Griffin v. Collins, 122 Ga. 102, 49 S. E. 827, holding that a receipt by a 
 ward acquitting the guardian in full of all claims against him is not valid if 
 signed before the termination of guardianship. See, also, Fidelity Trust Co. 
 V. Butler, 91 S. W. 676, 28 Ky. Law Rep. 1268 ; Wilson v. Fidelity Trusti Co. 
 (Ky.) 97 S. W. 753 ; National Surety Co. v. Sta.te. 181 Ind. 54, 103 N. B. 105. 
 
 80 Fish V. Miller, Hofif. Ch. (N. T.) 267. And see Voltz v. Voltz, 75 Ala. 
 566; Eberts v. Eberts, 55 Pa. 110; Hall v. Cone, 5 Day (Conn.) 543; Stark 
 V. Gamble, 43 N. H. 465; Williams v. Powell, 36 N. C. 460; Harris v. Oar- 
 starphen, 69 N. C. 416; Carter v. Tice, 120 111. 277, 11 N. E. 529; Richard- 
 son v. Llnney, 7 B. Mon. (Ky.) 571 ; Powell v. Powell, 52 Mich. 432, 18 N. W. 
 203 ; Line v. Lawder, 122 Ind. 548, 23 N. B. 758 ; McOonkey v. Cockey, 69 Md. 
 286, 14 Atl. 465. And see Wilson v. Fidelity Trust Co., 97 S. W. 753, 30 Ky. 
 Law Rep. 263. The ward cannot set aside a conveyance made by him after 
 attaining his majority, without restoring the consideration received from his 
 guardian. Wickiser v. Cook, 85 111. 68. But the tender of the amount re- 
 ceived by him is not a condition precedent. Eist v. Hartner, 44 la. Ann. 430, 
 10 South. 759. The ward must act promptly in avoiding a gift or conveyance 
 to his guardian, or he may be barred by his laches. Fielder v. Harbison, 93 
 Ky. 482, 20 S. W. 508; Roth's Estate, 150 Pa. 261, 24 Atl. 685; In re Alexan- 
 der's Estate, 156 Pa. 368, 27 Atl. 18 ; Lataillade v. Orena, 91 Cal. 565, 27 Pac. 
 924, 25 Am. St. Rep. 219 ; Ela v. Ela, 84 Me> 423, 24 Atl. 893. 
 
4:48 EIGHTS, DUTIES, AND LIABILITIES OF GITAEDIANS (Ch. 12 
 
 Equity will not permit transactions between guardian and ward 
 to stand, though "they occur after majority, if the intervening pe- 
 riod is short, unless the fullest deliberation by the ward and the 
 utmost good faith by the guardian is shown, and a guardian can- 
 not procure an acknowledgment of settlement from his ward short- 
 ly after his majority without a full disclosure of every fact neces- 
 sary to inform the ward of the true condition of the accounts.*^ 
 
 While every reasonable intendment will be made, in a settle^ 
 ment, in favor of the ward,, particularly if he has made allowances 
 in the guardian's favor, yet, if the influence of the guardian has 
 entirely ceased, such settlement and the release of the guardian 
 will be sustained, when made voluntarily on the part of the ward, 
 and without concealment or misrepresentation by the guardian.*^ 
 A settlement of a guardian's final account in a probate court, or 
 other similar court of statutory jurisdiction, may likewise be set 
 aside in equity on proof of actual or constructive fraud.** 
 
 Gifts from a ward to his guardian, made during the continuance 
 of the guardianship, are presumed to have been induced by undue 
 influence, and will be set aside unless they are shown to have been 
 entirely voluntary, and to have been clearly understood by the 
 ward.** In a leading Vermont case *' it was held that mere lapse 
 of time is not sufficient to prove a ratification of the gift, unless it 
 appears also that the ward knew that the gift was invalid and could 
 be set aside, and knowing these facts, had consented for an unrea- 
 sonable time that the gift might stand unquestioned, and that such 
 consent was the result of his free and intelligent choice, "and not the 
 result of the pressure and influence arising out of the confidential 
 relations existing between the parties. On the same principle, a 
 gift or conveyance to a "guardian made by the ward shortly after 
 
 81 Willis V. Kice, 157 Aln. 252, 48 Soutli. 897, 131 Am. St. Rep. 55. 
 
 s2Kirby v. Taylor, 6 Johns. Cb. (N. T.) 242; Hawkins' Appeal, 32 Pa. 263; 
 Smith V. Davis, 49 Md. 470; Davenport v. Olmstead, .43 Conn. 67 ; Douglass 
 V. Ferris, 138 N. Y. 192, 33 N. E. 1041, 34 Am. St. Kep. 435; Condon v. 
 Churchman, 32 111. App. 317 ; Davis v. Hagler, 40 Kan. 187, 19 Pac. 628. But 
 a ward will not be bound by a- ratification of his guardian's accounts made, 
 in ignorance of material facts. Long v. Long, 142 N. T. 545, 37 N. E. 486. 
 
 83 Carter v. Tice, 120 111. 277, 11 N. E. 529 ; Douglass v. Low, 36 Hun (N. 
 Y.) 497; Monnin v. Beroujon, 51 Ala. 196. 
 
 84 Bisp. Eq. § 234; Wood v. Dowues, 18 Ves. 120, 127; Wade v. Pulsifer, 54 
 Vt. 45; Waller v. Armistead's Adui'rs, 2 Leigh (Va.) 11, 21 Am. Dec. 594; 
 Farmer's Ex'r v. Farmer, 39 N. J/. Eq. 211. 
 
 80 Wade v. Pulsifer, 54 Vt. 45. 
 
§§ 185-186) SETTLEMENTS OUT OF COURT 449 
 
 the termination of the guardianship is prima facie presumed to have 
 been made under undue infLuence, and will be set aside unless 
 shown to have been entirely voluntary, and made by the ward with 
 a full understanding of his position and rights in regard to his 
 property.*" 
 
 8 6 Hunter v. Attlns, 3 Mylne & K. 113; Fidelity Trust Co. v. Butler, 91 
 S. W. 676, 28 Ky. Law Eep. 1268; Berkmeyer v. Kellerman, 32 Ohio St. 
 239, 30 Am. Rep. 577; Garvin's Adm'r v. Williams, 50 Mo. 206; Ash ton v. 
 Thompson, 32 Minn. 25, 18 N. W. 918 ; Tucke v. Buchholz, 43 Iowa, 415. 
 TIFF.P.& D.Rei..(3d Ed.)— 29 
 
450 TERMINATION OF GUARDIANSHIP (Ch. 13. 
 
 CHAPTER XIII 
 
 TERMINATION OP GITAEDIANSHIP— ENFORCING GUABUIAN'S 
 
 LIABILITY 
 
 187. Termination of Guardianship. 
 
 188. Enforcement of Guardian's Liability, 
 189-191. Guardians' Bonds. 
 
 TERMINATION OF GUARDIANSHIP 
 
 187. Guardianship is terminated in the following ways: 
 
 (a) By the ward's reaching his majority. 
 
 (b) By the death of the ward. 
 
 (c) By the death of the guardian. 
 
 (d) By the marriage of a female ward. 
 
 (e) Under the statutes of some states, by the marriage of a fe- 
 
 male guardian. 
 
 (f) By the resignation of the guardian, if he is permitted to re- 
 
 sign. 
 
 (g) By removal of the guardian by the court, when he fails to 
 
 perform his duty, or when he is unfit for the position. 
 
 Testamentary guardianship, unless an earlier time is named in 
 the appointment,'- and chancery " and statute ^ guardianship, all 
 terminate at majority. If, however, as has been seen, a guardian 
 continues to manage the ward's estate after his majority, without 
 making a final settlement, this will constitute, in effect, a continua- 
 tion of the guardianship. It will constitute him a quasi guardian, 
 and he must account for all transactions on the same principles 
 which govern his acts during the ward's minority. ■* On the death 
 of the ward, the guardianship necessarily terminates, and the 
 
 1 Selby V. Selby, 2 Eq. Gas. Abr. 488 ; Arthurs' Appeal, 1 Grant, Gas. (Pa.) 
 55; Buckley v. Herder (Tex. Civ. App.) 133 S. W. 703. 
 
 2 Eversley, Dom. Rel. 680. 
 
 s Bourne v. Maybin, 3 Wood, 724, Fed. Cas. No. 1,700 ; Probate Judge v. 
 ' Stevenson, 55 Mich. 320, 2] N. W. 348 ; RuUman v. RuUman, 81 Kan. 521, 103 
 Puc. 52; Stroup v. State, 70 Ind. 495; People v. Brooks, 22 111. App. 594; 
 Overton v. Beavers, 19 Ark. 623, 70 Am. Dec. 610. By express statutory pro- 
 vision in some states it terminates earlier. 
 
 4 Ante, p. 401 ; Mellish v. Mellish, 1 Sim. & S. 138 ; Stinson v. Leary, 69 
 Wis. 269, 34 K. W. 63. 
 
§ 187) TERMINATION OF GUARDIANSHIP 451 
 
 guardian has no right to act further as guardian, or to administer 
 on the estate, but must adjust his accounts with the ward's legal rep- 
 resentatives.? L,ikewise, on the guardian's death, his executor 6t 
 administrator has no authority to act as guardian, but must settle 
 the accounts of the guardianship, and pay the balance to the suc- 
 ceeding guardian.' Where there are joint statute ^ or testamenta- 
 ry » guardians, and one dies, the survivor continues the trust. The 
 reason is that the trust is coupled with an interest. "Letters of 
 guardianship create a trust, coupled with an interest. When two 
 ' are appointed, and one of them dies, the trust survives. It is so 
 when administration is granted to two. The law is the same as to 
 joint guardians and joint administrators." ° The guardianship of a 
 [female ward is terminated by her marriage,^" but the marriage of a 
 male ward does not end the guardianship.^^ At common law the 
 marriage of a female guardian in socage had the effect of terminat- 
 ing her guardianship, and transferring it to her husband ; ^^ but the 
 marriage of a female testamentary guardian did not have this ef- 
 
 .BBean v. Bumpus, 22 Me. 549; State Fair Ass'n v. Terry, 74 Ark. 149, 
 85 S.. W. 87 ; JSTorton v. Strong, 1 Conn. 65 ; WMttemore v. Coleman, 239 111. 
 450, 88 N. E. 228 : Martin v. Caldwell; 49 Ind. App. 1- 96 N. E. 660 ; Ordway 
 V. Phelps, 45 Iowa, 279; In re Colvin's Estate, 3 Md. Ch. 278; Barrett v. Pro- 
 vinchcr, .39 Neb. 773, 58 N. W. 292. See, also, Livermore v. Eatti, 150 Cal. 
 458, 89 Pac. 327, holding that, where the ward dies before settlement, the 
 settlement must be with the ward's legal representative. 
 
 « Connelly v. Weatherly, 33 Ark. 658 ; Armstrong's Heirs v. Walkup, 12 
 Grat. (Va.) 60S; Peel v. McCarthy, 38 Minn. 451, 38 N. W. 205, 8 Am. St.- 
 Rep. 681 : Watei-man v. Wright, 36 Vt. 164 ; Woodbury v. Hammond, 54 Me. 
 332 ; Gregg v. Gregg, 15 N. H. 190. 
 
 ' Pepper v. Stone, 10 Vt. 427. And in this country the same rule applies 
 to chancery guardians. People v. Byron, 3 Johns. Cas. (N. Y.) 53. But in 
 Eingland it is otherwise. Bradshaw v. Bradshaw, 1 Euss. 528. 
 
 s Eyre v. Countess of Shaftsbury, 2 P. Wims. 103. And, when one declines 
 to act, the other may carry on the trust. Kevan v. Waller, 11 Leigh (Va.) 
 414, 36 Am. Dec. 391 ; In re Reynolds, 11 Hun (N. T.) 41. 
 
 9 Pepper v. Stone, 10 Vt. 427. 
 
 10 Bac. Abr. "Guardian," E: Mendes v. Mendes, 1 Ves. Sr. 89; Bartlett v. 
 Cowlos, 15 Gray (Mass.) 445 ; In re Whitaker, 4 Johns. Ch. (N. Y.) 378 ; In re 
 Brick's Estate, 15 Abb. Prac. (N. Y.) 12 ; Porch v. Fries, 18 N. J. Eq. 204 ; 
 Jones V. Ward, 10 Yerg. (Tenn.) 160; Garnet v. Com., 4 J. J. Marsh. (Ky.) 
 389; Nicholson v. Wilborn, 13 Ga. 467; Mouser v. Nunn, 142 Ky. 656, 134 
 S. W. 1148 ; Carpenter v. Soloman (Tex. App.) 14 S. W. 1074 ; Shutt v. Car- 
 loss, 36 N. C. 232; Armstrong's Heirs v. Walkup, 12 Grat. (Va.) 608; Siman 
 V, Lens, 37 Phil. Rep. 969. 
 
 112 Kent, Comm. 226; Mendes v. Mendes, 1 Ves. Sr. 89; In re Brick's Es- 
 tate, 15 Abb. Prac. (N. Y.) 12. 
 
 12 Bae. Abr. "Guardian and Wlard," E. 
 
452 TERMINATION OF GUARDIANSHIP (Ch. 13 
 
 feet." It has been held that the marriage of a female statute guard- 
 ian does not terminate the guardianship," but, by statute in some 
 states, it is otherwise.^^ In some jurisdictions her husband be- 
 comes a joint guardian with her.^° 
 
 One appointed a socage guardian could not refuse the office,^^ 
 nor resign.i^ And it has been held that a testamentary guardian 
 has no right to resign.^" When he refuses to act, however, the 
 court may appoint a successor.^" Guardians appointed by the 
 court of chancery cannot resign without valid grounds, and must 
 obtain the sanction of the court." Statute guardians are, by ex- 
 press provision, often allowed to resign their office; and, when 
 there is no express enactment to that effect, their tender of resigna- 
 tion is sufficient ground for their removal, where the court has the 
 power of removal for cause.^^ \But a resignation, if accepted, does 
 not take effect until there has been an accounting and a discharge 
 by the court on proper notice.^^ 
 
 Removal of Guardians 
 
 As incident to its general jurisdiction in guardianship, the Court 
 of Chancery, in England, has the. power to remove guardians whom 
 it has appointed;^* and, while testamentary guardians cannot be 
 
 13 Com. Dig. "Guardian," 384; Dillon v. Lady Mount Oashell, 4 Brown, 
 Pari. Gas. 306; ante, p. 398. 
 
 i*Leavel v. Bettis, 3 Busli (Ky.) 74; Gotton's Guardian v. Wolf, 14 Bush 
 (Ky.) 23S ; Birmingham Coal & Iron Go; v. Doe ex dem. Amett, 181 Ala. 
 621, 62 South. 26; In re Elgin's Guardianship, 1 Tuck. (N. Y.) 97. But sec 
 Swartwout v. Swartwout, 2 Kedf. Sur. (N. Y.) 52. 
 
 1 5 Carr v. Spannagel, 4 Mo. App. 285 : Field v. Torrey, 7 Vt 372 ; Swart- 
 wout V. Swartwout, 2 Eedf, Sur. (N. Y.) 52. 
 
 16 Wood V. Stafford, 50 Miss. 370; Martin v. Foster's Ex'r, 38 Ala. 688. 
 
 17 Eversley, Dom. Rel. 683; Bedell v. Constable, Vaughan, 177. 
 16 St. Marlbridge, 52 Hen. Ill, c. 17. 
 
 IS Spencer v. Earl of Chesterfield, 1 Amb. 146; Young v. Lorain, 11 111. 
 625, 52 Am. Dec. 463. 
 
 2 Spencer v. Earl of Chesterfield, 1 Amb. 146; O'Keefe v. Casey, 1 
 Schoales &' L. 106; McAlister v. Olmstead, 1 Humph. (Tenn.) 210; Ex parte 
 Crumb, 2 Johns. Ch. (N. Y.) 439. 
 
 21 Eversley, Dom. Bel. 684. 
 
 2 2 Young V. Lorain, 11 111. 624, 52 Am. Dec. 4&3; Brown v. Huntsman, 32 
 Minn. 466, 21 N. W. 555. The court may appoint a successor. Simpson v. 
 Gonzalez, 15 Pla. 9; Lefever v. Lefever, 6 Md. 472. A mother, who, after 
 accepting the tutorship of her children, remarries, and is retained in the 
 tutorship with her husband, cannot resign. In re Minors Long, 118 La. 689, 
 43 South. 279. 
 
 2» Wackerle v. People, 168 111. 250, 48 N. E. 123; Manning v. Manning, 61 
 Ga. 137. 
 
 Si Eversley, Dom. Kel. 684. - 
 
§ 187) TERMINATION OP QUAEDIANSHIP 453 
 
 removed, they may be superseded and restrained from interfering 
 with the infant's person or estate. ^° Courts of chancery in the 
 United States, possessing a general jurisdiction in equity, have 
 sometimes exercised such jurisdiction in matters pertaining to 
 guardianship. It has been held that such courts may remove, not 
 only guardians appointed by themselves, but also statutory and tes- 
 tamentary guardians.^" Probate, surrogates', and similar courts, 
 invested by statute with jurisdiction in matters pertaining to guard- 
 ianships, generally have their power to remove testamentary guard- 
 ians " and guardians of their own appointing.^* Though it has 
 been held that probate courts have no general power to remove 
 guardians, but only for causes specified in the statute,^" the better 
 rule seems to be that the court is not confined to the grounds men- 
 tioned in the statute, but may exercise discretion in the removal or 
 retention of guardians.^" 
 
 A breach of official duty by a guardian, such as the use of the 
 ward's property for his own advantage, ^'^ the failure to apply the 
 income of the ward's property to his support,^^ the waste of the . 
 estate,'^ or failure to file an inventory when ordered,^* has been 
 
 2 5 Foster v. Denny, 2 Ch. Cas. 237; Ingbam v. Bickerdike, 6 Madd. 275. 
 
 2« Cowls V. Cowls, 3 Gilman (111.) 435, 44 Am. Dec. 708; Ex parte Crumb, 
 2 Johns. Ch. (N. Y.) 439 ; Disbrow v. Hefishaw, 8 Cow. (N. Y.) 349 ; 2 Kent, 
 Comm. 227. 
 
 2' McPhilllps V. McPhillips, 9 R. I. 536; Damarell v. Walker, 2 Redf. Sur. 
 (N. Y.) 198; Oopp v. Copp, 20 N. H. 284. 
 
 2 8 Simpson v. Gonzalez, 15 Fla. 9; Clement's Appeal, 25 N. J. Bq. 508; 
 Skldmore v. Davies, 10 Paige (N. Y.) 316. A guardian appointed by the cir- 
 cuit-court cannot be removed by the county court. State v. Kelley, 32 S. D. 
 526, 143 N. W. 953. 
 
 2 State ex rel. Baker v. Bird, 253 Mo. 569, 162 S. W. 119, Ann. Cas. 19150, 
 353. 
 
 3 People V. Buck, 149 111. App. 283; Rummels v. Clark, 164 Iowa, 659, 
 146 N. W. 462. 
 
 31 SnavelJ? v. Harkrader, 29 Grat. (Va.) J 12; In re O'Neil's Guardian, 1 
 Tuck. (N. Y.) 34 ; Wood v. Black, 84 Ind. 279 ; In re Cooper, 2 Paige (N. Y.) 
 34. But see Sweet v. Sweet, Speers, Eq. (S. C.) 309. 
 
 3 2 In re Swift, 47 Cal. 629; Rnohs v. Backer, 6 Heisk. (Tenn.) 395, 19 Am. 
 Rep. 59S. 
 
 3 3 Dickerson v. Dickorson. 31 N. J. Eq. 652; In re Guardianship of Cham- 
 bers, 46 Okl. 139, ,148 Pac. 148. 
 
 34 Windsor v. McAtee, 2 Mete. (Ky.t 430; People v. Buck, 149 111. App. 
 283. Biit see Successioa of Bnrrell, 138 La. 1076, 43 South. 882. The provi- 
 sion oC the statute requiring a guardian to file an inventory and account 
 within a prescribed time is merely directory, and noncompliance, if not at- 
 tended bv fraud, is not ground for removal. Heath v. Maddock, 81 N, J. 
 Eq. 469, 86 Atl. 945, affirmed 82 N. J. 366, 91 Ati. 1069. 
 
454 TERMINATION OF GUARDIANSHIP (Ch. 13 
 
 held sufficient ground for removal.'^ Removal will also be made 
 in case the guardian is unfit for the position — as when his interests 
 are hostile to the ward's ; '* when his influence on account of 
 confirmed habits of intoxication ^^ or immoral life/* is bad; where, 
 through ignorance, he is incompetent to manage the estite,'" or 
 has been convicted of a crime.*" Insolvency will not necessarily 
 disqualify,*^ though it has been held sufficient ground for remov- 
 al.*^ Removal from the state has been held a ground for revoking 
 the appointment,*^ and is sometimes expressly made so by stat- 
 ute.** When a guardian has obtained his appointment through 
 false representations, he may be removed.*^ A guardian cannot be 
 removed by the court without due notice to him ; *" and the ap- 
 
 5= For other grounds of removal, see In re Dixon, 156 'N. O. 26, 72 S. E. 
 71 (failure to account for rents and profits of ward's lands) ; In re Allard, 49 
 Mont 219, 141 Pac. 661 (mingling guardianship funds with his own, or profit- 
 ing by use of ward's funds) ; Davis' Adm'r v. Davis, 162 Ky. 316, 172 S. W. 
 665 (lack of interest in ward). But removal for irregularities is in discre- 
 tion of court. In re Nelson, 148 Iowa, 118, 126 N. W. 973, Ann. Gas. 1912B, 
 974. 
 
 36 In re Mansfield's Estate, 206 Pa. 64, 55 Atl. 764; In re Edmonson's 
 Estate, 78 Neb. 279, 110 N. W. 540. Conduct tending to alienate the child's 
 affections from its mother has been held sufficient ground for removal. Per- 
 kins V. Pinnegan, 105 Mass. 501. 
 
 37 Kettletas v. Gardner, 1 Paige (N. Y.) 488. 
 
 38 Ruohs v. Backer, 6 Heisk. (Tenn.) 895, 19 Am. Rep. 598. 
 
 3 9 Nicholson's Appeal, 20 Pa. 50; Wood v. Black, 84 Ind. 279. 
 
 *oin re Soley's Estate, 13 Phila. (Pa.) 402; Clark v. Smith, 110 Miss. 728, 
 70 South. 897. 
 
 *i In re Chew's Estate, 4 Md. Ch. 60. 
 
 *2 In re Cooper, 2 Paige (N. Y.) 34. And see Baldridge v. State, 69 Ind. 166. 
 
 *3 Cooke V. l^ale, .33 N. C. 36. See Succession of Cass, 42 La. Ann. 381, 7 
 South. 617. Though removal from the state does not ipso facto revoke 
 guardianship, the court should remove on its own motion. Watts v. Hicks, 
 119 Ark. 621, 178 S. W. 924. Removal of an undertutor from one parish to 
 another does not vacate his office. Beenel v. Louisiana C.vpress Lumber Co., 
 1.34 lia. 467, 64 South. 380. 
 
 *4 State V. Engelke, 6 Mo. App. 356 ; Speight v. Knight, 11 Ala. 461. Under 
 Kirby's Dig. Ark. § 3778, letters of guardianship are not ipso facto revoked 
 by the guardian's removal from the state. Watts v. Hicks, 119 Ark. 621, 
 178 S. W. 924. 
 
 4 Clement's Appeal, 25 N. J. Eq. 508; Pease v. Roberts, 16 111. App. 634. 
 
 ■>e Gwin v. Vanzant, 7 Yerg. (Tenn.) 143 ; Copp v. Copp, 20 N. I-I. 284; Mont- 
 gomery V. Smith, 3 Dana (Ky.) 599; Speight v. Knight, 11 Ala. 461; State v. 
 Engelke, 6 Mo. App. 356 ; Smith v. Haas, 132 Iowa, 493, 109 N. W. 1075 ; 
 Hart V. Gray, 3 Sumn. 3.39. Fed. Cas. No. 6,152. Contra, where he leaves the 
 state. Cooke v. Beale, 33 N. C. 36. 
 
§ 18.8) ENFORCEMENT OF GUABDIAN'S LIABILITY ^55 
 
 pointment of a new guardian will not have that effect, the guardian- 
 ship continuing until a judicial decree of removal is made.*' 
 
 ENFORCEMENT OF GUARDIAN'S LIABILITY 
 
 188. A suit does not lie by the ward against the guardian during 
 the guardianship, but courts of chancery have a general 
 jurisdiction to control guardians of their own appointment 
 in the management of the estate. The liability of statute 
 guardians is usually enforced by means of their bonds. 
 
 Where a guardian misappropriates his ward's funds, an action at 
 law will not -lie at the suit of the ward, in indebitatus^ assumpsit.** 
 Nor can a bill in equity be brought, although a guardian has assets 
 of the ward in his hands, to charge him for nonpayment of the 
 ward's debts, 'since there is an adequate remedy at law on the 
 ■guardian's bond.*' The relation being that of trustee and cestui 
 que trust, and not that of debtor and creditor, the guardian is sub- 
 ject to all the liabilities, and entitled to all the benefits, incidental to 
 his position, one of which is the right to an opportunity to render 
 his account, and to have the same adjusted by the court. °" It has 
 ■also been held that a ward cannot recover damages during the 
 guardianship, in a suit against his guardian for an assault and 
 battery, though it might be ground for his removal or for redress in 
 the criminal courts. ^^ 
 
 A court of chancery, as it has a general' jurisdiction over guard- 
 ians appointed by it, can make such orders during the continuance 
 of the guardianship as are necessary to protect the ward's estate, 
 and, by a bill in equity brought by the ward through his next friend, 
 the guardian may be compelled to account."^ Ill matters of ac- 
 
 *7 Fay V. Hurd, S Pick. (Mass.) 528; Copp v. Oopp, 20 N. Hi 284; Bledsoe 
 V. Brltt, 6 Yerg. (Tenn.) 458, 463 ; Bstrldge v. Estridge, 76 S. W. 1101, 25 
 Ky. Law Kep. 1076; Robinson v. Zollinger, 9 Watts (Pa.) 169; Thomas v. 
 Burnis, 2.3 'Miss. 550, 57 Am. Dec. 154. See, also, Dickerson v. Bowen, 128 
 Ga. 122, 57 S. E. 326. 
 
 *8 Brooks V. Brooks, 11 Gush. (Mass.) 18; Thorndike v. Hinckley, 155 Mass. 
 263, 29 N. E. 579 ; Linton v. "Wlalker, 8 Fla. 144, 71 Am. Dec. 105. 
 
 48 Conant v. Kendall, 21 Pick. (Mass.) 36. 
 
 50 Brooks V. Brooks, 11 Ciish. (Mass.) 18; Bonner v. Evans, 89 Ga. 656, 15 
 S. E. 906; Minter v. Clark, 92 Tenn. 459, 22 S. W. 73. 
 
 01 Mason v, Mason, 19 Pick. (Mass.) 506. But see Brattain v. Cannady, 96 
 Ind. 266. 
 
 B2 Blake v. Blake, 2 Schoales & L. 26 ; Monell v. Monell, 5 Johns. OhJ 
 
456 TERMINATION OF GUARDIANSHIP (Ch. 13 
 
 counting, courts of probate and other similar cotirts are often held 
 to possess powers which are co-extensive, with those of a court of 
 chancery, and they adopt the same forms and mode of procedure. ^^ 
 Courts having a general jurisdiction over the estates of wards have 
 also been held to have the power to order the payment of claims.'* 
 When a guardian retains his ward's property after the termination 
 of the guardianship, the action of account will lie at law, at the suit 
 of the ward." Statute guardians are generally held to account- 
 ability by enforcing their liability under their bonds, as explained 
 in the following section. 
 
 GUARDIANS' BONDS 
 
 189. All guardians, with the exception of testamentary guardians 
 
 in some jurisdictions, must give bonds before entering on 
 their duties; and they and their sureties are liable there- 
 under for all losses occurring through the guardians' de- 
 linquencies. 
 
 190. The liability under a guardian's bond continues until barred 
 
 by the statute of limitations. By the weight of authority, 
 it cannot be enforced until determined by the settlement 
 of the final account. 
 
 191. The sureties on the special sale bond, and not those on the 
 
 general bond, are, by the weight of authority, liable for the 
 ^ proceeds of a sale of real estate under order of the court. 
 
 Guardians of the person and estate appointed by the Court of 
 Chancery in England,^* and statute guardians in this country,^' 
 are required to give bonds, with sureties satisfactory to the court, 
 for the faithful discharge of their duties, and to duly account. They 
 
 (N. T.) 283, 9 Am. Dec. 298 ; Swan v. Dent, 2 Md. Ch. Ill ; Linton v. Walk- 
 er, 8 Fla. 144, 71 Am. Dec. 105; Lemon v. Hansbarger, 6 Grat. (Va.) 301: 
 Manning v. Manning, 61 Ga. 137 ; Peck v. Braman, 2 Elackf. (Ind.) 141. 
 
 53 In re Steele, 65 111. 322; Cheney v. Roodhouse, 135 111. 257, 25 N. E. 1019; 
 Tudhope v. Potts, 91 Mich. 490, 51 N. W. 1110; Seaman v. Duryea, 11 N. Y. 
 324. 
 
 64Yeakle v. Winters, 60 Ind. 554; Turner v. Flagg, 6 Ind. App. 563, 33 iN. 
 E. 1104. 
 
 5 6 Field V. Torrey, 7 Vt. 372; Harris v. Harris, 44 Vt. 320; Green v. John- 
 son, 3 Gill & J. (Md.) 389. 
 
 5 8 Eversley, Dom. Rel. 657. 
 
 6 7 By statute, testamentary guardians are often required to give bond, and 
 render account. Slurphy v. Superior Court, 84 Cal. 592, 24 Pac. 310. 
 
§§ 189-191) guardians' bonds 457 
 
 have no authority to act before the giving of the bond."* The 
 guardian and his sureties are responsible for all property, of every 
 nature and description, which comes, or which, if the guardian per- 
 forms his duty, should come, into his hands as guardian,"" as well 
 as for losses occurring through his failure to perform his duty."" 
 For property of his ward which may come into his hands otherwise 
 than in his capacity as guardian, his sureties are not responsible."^ 
 Nor are they liable for property received, or for acts performed, 
 after his final discharge."^ But the termination of the guardianship 
 does not relieve the sureties from liability for property received 
 and acts performed during its continuation,"' and their liability 
 continues, unless limited by special statute, until the statute of 
 limitations has run."* On the death of the surety, his estate is 
 
 B8 Wuesthoff V. Germrmia Life Ins. Co., 107 N. Y. 580, 14 N. E. 811; Poe v. 
 Schley, 16 Ga. 3ft4; Westlirook v. Comstock, Walk. Oh. (Mich.) 314; People 
 V. Seelye, 146 111. 189, '32 N. E. 458. 
 
 59 Mattoon v. Cowing, 13 Gray (Mass.) 387; Brooks v. Tobin, 135 Mass. 69; 
 Pierce v. Prescott, 128 Mass. 140; Bond v. Lockwood, 33 111. 212; McClendon 
 V. Harlan, 2 Heisk. (Tenn.) 337: Hunt v. State, 53 Ind. 321; Neill v. Nelll, 
 31 Miss. 36 ; Newberry v. Wilkinson, 199 Fed. 673, 118 C. C. A. Ill affirming 
 Newbery v. Wilkinson (C. C.) 190 Fed. 62; State v. Brown, 73 N. C. 81; 
 Butler V. I^gro, 62 N. H. 350, 13 Am. St. Eep. 573; Gulp v. Stanford, 112 
 N. C. 664, 16 S. E. 761. But see Kudy v. Rudy, 145 Ky. 245, 140 S. W. 192. 
 
 CO Richardson v. Boynton, 12 Allen (Mass.) 138, 90 Am. Dec. 141 ; Taylor 
 V. Hemingray, 81- Ky. 158 ; Jennings v. Copeland, 90 N. C. 572 ; Eichelberger 
 V. Gross, 42 Ohio St. 549; Yost v. State, 80 Ind. 350. 
 
 «iLiivermore v. Bemis, 2 Allen (Mass.) 39-t;, Hinckley v. Harriman, 45 
 Mich. 343, 7 N. W. 907 ; Allen v. Crosland, 2 Rich. Eq. (S. O.) 68 ; Hindman v. 
 State, 61 JId. 471; Parker v. Wilson, 98 Ark. 553, 136 S. Wl. 981; Id., 99 
 Ark. 344, 137 S. W. 926, Ann. Gas. 1913B, 84. And see Rudy v. Rudy, 145 
 Ky. 245, 140 S. W. 192. 
 
 6 2 Merrells v. Phelps, 34 Conn. 109. The sureties on a guardian's bond are 
 liable only for the money, or property that actually was in, or that came 
 into, his hands during the term covered by tlie band. American Bonding 
 Co. V. People, 46 Colo. 394, 104 Pac. 81. 
 
 6 3 Nauule V. State, 101 Ind. 284; In re Walling, 35 N. J. Eq. 105; Jennings 
 V. Copeland, 90 N. C. 572. And see Baum v. Hartmann, 226 111. 160, 80 N. 
 E. 711, 117 Am. St. Rep. 246. 
 
 64Bonham v. People, 102 III. 434; Bagland v. Justices of Inferior Court, 
 10 6a. 65. To the same effect, sec Wescott v. TJpham, 127 Wis. 590, 107 N. 
 W. 2; Murphy v. Cady, 145 Mich. 33, 308 N. W. 493. The statute runs from 
 the time the guardian accounts, Bell v. Rudolph, 70 Miss. 234, 12 South. 
 153 ; or from the time when he denies or repudiates the trust, Renter v. 
 La we, 86 Wis. 106, 56 N. W. 472. In the case of fraud, the statute runs from 
 the date of its discovery, Lataillade v. Orena, 91 Cal. 565, 27 Pac. 924, 25 Am. 
 St. Rep. 219 ; but not before the ward's majority, Minter v. Clark, 92 Tenn. 
 459, 22 S. Wl 73. 
 
458 TERMINATION OF GUARDIANSHIP (Ch. 13 
 
 liable.'" Even the discharge of a surety will relieve him only from 
 the acts of the guardian occurring subsequent to the giving of a new - 
 bond."" For previous acts the sureties on the old and new bonds 
 are in some jurisdictions jointly liable,"' but in others the second 
 bond has been held not to be retrospective."* By the weight of 
 authority, an action on a guardian's bond will not, lie until the 
 guardian's liability is determined by the settlement of his final ac- 
 count."' 
 
 When a special bond is required, as on the sale of real estate by 
 a guardian under a license by the court, the conduct of such sale, 
 and the application of the proceeds thereof in accordance with the 
 license, are generally held a separate trust, and not one of the gener- 
 al duties of the guardianship; and therefore, in case of a breach, 
 the sureties on the special bond are liable, and not those on the 
 general bond.'"' In some states, however, the sureties on the spe- 
 
 6 5 Anderson v. Thomas, 54 Ala. 104; Hutchcraft v. Shrout's Heirs, 1 
 T. B. Mon. fKy.) 208, 15 Am. Dec. 100; Brooks v. Rayner, 127 Mass. 268; 
 Cotton V. State, 64 Ind. 57.3. 
 
 68 Elchelberger v. Gross, 42 Ohio St. 549; In re Cbnover, 35 N. J. Eq. 108; 
 Bellune v. Wlallace, 2 Rich. (S. C.) 80; Yost v. State, 80 Ind. 350; Kaspar v. 
 People, 230 111. 342, 82 N. E. 816. See, also, United States Fidelity & Guar- 
 antj' Co. V. Hansen, 36 OUl. 459, 129 Pac. 60, Ann. Cas. 1915A, 402; Id., 36 
 Okl. 449, 129 Pac. 67. 
 
 e^Loring v. Bacon, 3 Cusb. (Mass.) 465; Miller v. Kelsey, 100 Me. 103, 60 
 Atl. 717 ; irutchcraft v. Shrout's Heirs, 1 T. B. Mon. (Ky.) 208, 15 Am. Dec. 
 100; Bell's Adm'r v. Jasper, 37 N. C. 597; Ammons v. People, 11 111. 6; 
 Steele v. Reese, 6 Yei-g. (Te:]n.) 263. See, also, Kaspar v. People, 230 111. 342, 
 82 N. E. 816 affirming 132 111. App. 1. 
 
 osLowry v. State, 64 Ind. 421; State v. Jones, 89 Mo. 470, 1 S. W. 35.>; 
 State V. Shackleford, 56 Miss. 648; .aotna Indemnity Co. v. State, 101 Miss. 
 703, 57 South. 980, 39 L. R. A. (N. S.) 961 ; Sebastian v. Bryan, 21 Ark. 447. 
 
 6 Murray v. Wood, 144 Mass. 195, 10 N. E. 822; Wallace v. Swepston, 74 
 Ark. 520, 86 S. W. 398, 109 Am. St. Rep. 94; Bailey v. Rogers, 1 Greenl. (Me.) 
 186; Stilwell v. Mills, 19 Johns. (N. T.) 304; BISBEE v. GLEASON, 21 Neb. 
 534, 32 N. W. 578, Cooley Cas. Persons and Domestic Relations, 240; Allen 
 V. Tiffany, 53 Cal. 16; Vermllya v. Bunce, 61 Iowa, 605, 16 N. W. 735; 
 Ordinary v. Heishon, 42 N. J. Law, 15. Contra, State v. Slevin, 93 Mo. 253, 
 6 S. W. 68, 3 Am. St. Rep. 526; Wolfe v. State, 59 Miss. 338; Call v. Buffln, 
 
 ~ 1 Gall (Va.) 333 ; Bonham v. People, 102 111. 434 ; Farrington v. Secor, 91 
 Iowa, 606, 60 N. W. 193. There need be no accounting when the liability 
 is otherwise definitely determined. Long v. Long, 142 N. T. 545, 37 N. E. 
 486. 
 
 7 Lyman v. Conkey, 1 Mete. (Mass.) 317; Swartwout v. Oaks, 52 Barb. (N. 
 T.) 622 ; Tost v. State, 80 Ind. 350 ; Williams v. Morton, 38 Me. 47, 61 Am. 
 Dec. 229; Judge of Probate v. Toothaker, 83 Me. 195, 22 Atl. 119; Blauser 
 V. Dlehl, 90 Pa. 350; Smith v. Gummere, 39 N. J. Eq. 27; Madison County 
 V. Johnston, 51 Iowa, 152, 50 N. W<. 492. Ck)ntra, Hart v. Stribling, 21 Fla. 
 
§§ 189-191) guardians' bonds 459 
 
 cial and on the general ' bonds are jointly liable/^ while in others 
 the sureties on the special bond are primarily liabje.'^ 
 
 136; State v. Cox, 62 Miss. 7S6. Wliere a guardian sold for reinvestment, 
 and neglected to reinvest, he was held liable, under his special sale bond, for 
 the principal, and on his general bond, for interest thereon. Mattoon v. Cow- 
 ing, 13 Gray (Mlass.) 387. But see Smith v. Gummere, supra. The liability 
 under a special sale bond has been held limited to a proper compliance with 
 the prerequisites to the sale, a faithful discharge of the duties in conducting 
 it, and to investing the proceeds as directed by the order, and as not extend- 
 ing to the subsequent management of such proceeds, or their final payment at 
 the expiration of the guardianship. Fay v. Taylor, 11 Mete. (Mass.) 52&. 
 
 71 Barker v. Boyd, 71 S. W. 528, 24 Ky. Law Rep. 1389; Swisher v. Mc- 
 Whinney, 64 Ohio St. 343, 60 N. E. 565. 
 
 72Findley v. Flndley, 42 W. Va. 372, 26 S. E. 433. 
 
PART IV 
 
 INFANTS, PERSONS NON COMPOTES MENTIS, 
 AND ALIENS 
 
 CHAPTER XIV. 
 
 INFANTS 
 
 192. Infancy Defined. 
 
 193. Custody and Protection. 
 194-198. Privileges and Disabilities. 
 
 194. In General. 
 
 195. Capacity to Hold Office. 
 
 196. Capacity to Make Will. 
 
 197. Capacity to Sue and Defend, 
 
 198. Infants as Witnesses. 
 199-217. Contracts of Infants. 
 
 199. In General. 
 
 200-203. Liability for Necessaries. 
 
 204. Ratification and Disaffirmance. 
 
 205-207. Time of . Avoidance. 
 
 208-209. Who may Avoid Contract 
 
 210-211. Wbat Constitutes Ratification. 
 
 212. What Constitutes Disaffinnance. 
 
 213. Extent of Ratification or Disaffirmance. 
 214-21.5. Return of Consideration. 
 
 216-217. Effect of Ratification or Disafiirmance. 
 
 218. Removal of Disabilities. 
 
 219-220. Actions in Tort by Infants. 
 
 221-222. I/lability of Infants for Torts. 
 
 223-224. Responsibility of Infants for Crime. 
 
 INFANCY DEFINED 
 
 192. At common law all persons under 21 years of age are infants. 
 But, by statute, in some states, females attain their ma- 
 jority at 18, and in some states, by statute, all minors at- 
 tain their majority on marriage. 
 
 The term "infancy" is used in law to designate the status of per- 
 sons under the age of majority, which is fixed at common law at 21 
 for both sexes. Since the law disregards fractions of a day in com- 
 puting time, an infant becomes of age at the first moment of the 
 
 (460) 
 
§ 193) CUSTODY AND PROTECTION 461 
 
 day preceding the twenty-first anniversary of his birth.^ By stat- 
 ute, in some states females become of age at 18; in others, on 
 marriage; and in a few states both sexes attain their majority on 
 marriage.^ 
 
 CUSTODY AND PROTECTION 
 
 193. The state has power to control and regulate the custody of 
 children and to establish and enforce regulations for their 
 protection. 
 
 The right of parents ' and the duly appointed guardian * to the 
 custody of the child has been discussed elsewhere. While th6 gen- 
 eral right of parents and guardians is recognized, it is well settled 
 that they possess no absolute right to the custody of the child, 
 but that the state, as parens patriee, as the welfare of the child may 
 demand, may control and determine its proper custody,^ and leg- 
 
 1 1 Bl. Comm. 463 ; 2 Kent, Comm. 233 ; Anon., 1 Ld. Raym. 480 ; Fitz- 
 Hugh V. Dennington, 6 Jlod. 259 ; Hamlin v. Stevenson, 4 Dana (Ky.) 597 ; 
 STATE V. CLAKKE, 3 Har. (Del.) 557, Cooley Cas. Persons and Domestic Re- 
 lations, 245 ; United States v. "Wright, 197 Fed. 297, 116 O. C. A. 659 ; Ex parte 
 "Wood, 5 Cal. App. 471, 90 Pac. 961 ; "Wells v. "Wells, 6 Ind. 447 ; Bardwell v. 
 Purrington, 107 Mass. 419. If one be born the 1st of February at 11 at night, 
 and on the last of January in the twenty-first year of his age, at 1 of the 
 clock in the morning, he makes his will of lands, and dies, it is a good will, 
 for he was then of age. Anonymous, 1 Salk. 44. 
 
 2 Stim. Am. St. Law, § 6601. The Legislature has power to change the 
 age at which a minor is privileged to exercise legal rights which shall be 
 binding on him. Young v. Sterling Leather "Works, 91 N. J. Law, 289, 102 
 Atl. 395. A statute extending the period of minority in males and females to 
 21 years, did not change .status of one who had already reached age of ma- 
 jority under former law. Smith v. Smith, 104 Kan. 629, 180 Pac. 231. 
 The status of a person as to his infancy or majority is determined by the 
 law of his domicile. Harding v. Schapiro, 120 "Md. 541, 87 Atl. 951. 
 
 3 Ante, p. 343. 
 *Ante, p. 408. 
 
 5 2 Kent, Comm. 205 ; Lally v. Sullivan, 85 Iowa, 49, 51 n: "W. 1155, 16 L. 
 R. A. 681; In re Knowack, 158 N. Y. 482, 53 N. E. 676, 44 L. R. A. 699; In 
 re Hope, 19 R. I. 486, 34 Atl. 994 ; State v. Klasen, 123 Minn. 382, 143 N. W. 
 984, 49 L. R. A. (N. S.) 597; In re Stittgen, 110 "Wis. 625, 86 N. "W. 563; 
 Hunt V. "Wayne Circuit Judges, 142 Mich. 93, 105 N. "W. 531, 3 L. R. A. (N. 
 S.) 564, 7 Ann. Cas. 821; Hesselman v. Haas, 71 ril. J. Eq. 689, 64 Atl. 165; 
 Kelsey v. Green, 69 Conn. 291, 37 Atl. 679, 38 L. R. A. 471. In some juris- 
 dictions it is held that the court of chancery, as representing the government, 
 has- power indf^pendent of statute to control the custody of children and to 
 protect them. Hayes v. Hayes, 192 Ala. 280, 68 South. 351; "Witter v. Cook 
 County Com'rs, 256 111. 616, 100 N. E. 148 ; In re "Williams, 77 N. J. Efl. 478, 
 77 Atl. 350, 79 Atl. 686. Right to commit children to the custody of societies 
 
462 INFANTS (Ch. 14 
 
 islate for its protection.' Thus, it is within the power of the 
 Legislature to enact statutes to prevent the presence of infants in 
 billiard and pool rooms, saloons, and the like,'' or the exhibition to 
 an infant of stories of crime or bloodshed, or obscene books or 
 pictures ; "^ to prescribe regulations as to the employment of chil- 
 I dren ; ® and to prevent and punish cruelty to children ; ^^ or neglect 
 endangering the life or injuring the health of children. ^^ 
 
 organized to care for neglected children. McFall v. Simmons, 12 S. D. 562, 
 
 81 N. W. 898; In re Kol, 10 N. D. 493, 88 N. W. 273; State v. Isenhuth, 34 
 S. D. 218, 148 N. W. 9 ; Kennedy v. Meara, 127 Ga. 68, 56 S. E. 243, 9 Ann. 
 Cas. 396. 
 
 « People V. Pierson. 176 N. T. 201, 68 N. E. 243, 63 L. B. A. 187, 98 Am. 
 St. Pvep. 666 ; People v. Ewer, 141 N. Y. 129, 36 IS. li. 4, 25 L. K. A. 794, 38 
 Am. St. Rep. 788 ; Ooramonwealth v. Wormser, 260 Pa. 44, 103 Atl, 50O af- 
 firming 67 Pa. Super. Ot. 444; In re Michels, 170 Cal. 339,, 149 Pac. 587; 
 Glenn v. State, 10 Ga. App. 128, 72 S. E. 927; Travis v. State, 31 Ohio Cir. 
 Ct. R. 492. The various so-called "Mothers' Pension" acts are a valid ex- 
 ercise of the legislative power to protect the dependent children of widowed 
 and indigent mothers. See State Board of Control v. Buckstegge, 18 Ariz. 277, 
 158 Pac. 837 ; State v. Klasen, 123 Minn. 382, 143 N. W. 984, 49 L. E. A. 
 (N. S.) 597 ; Cass County v. Jsixon, 35 IS!. D. 601, 161 N. W. 204, L. R. A. 
 1917C, 897 ; Finley v. Marion County, 81 Or. 294, 159 Pac. 557 ; In re Ramsey, 
 102 Neb. 302, 167 N. W. 66 ; Commonwealth v. Powell, 256 Pa. 470, 100 Atl. 
 964, L. K. A. 1917E, 1150. 
 
 7 Powell V. State, 62 Ind. 531 ; State v. Johnson, 108 Iowa, 245, 79 N. W. 
 62; Ex parte Meyers, 7 Cal. App. 528, d4 Pac. 870; Commonwealth v. Wills, 
 
 82 S. W. 236, 26 Ky. Law P^ep. 515i; State.v. Schnables, 109 Ark. 429, 160 S. W. 
 388 ; Lang v. State, ;162 Ala. 85, 50 South. 853 ; Commonwealth v. Nance, 158 
 Ky. 444, 165 S. W. 423 ; State v. Rosenfield, 111 Minn. 301, 126 N. W. 1068, 
 29 L. R. A. (N. S.) 331, 137 Am. St. Rep. 557; State v. Andei-son, 61 Wash. 
 674, 112 Pac. 931 ; Rhodes v. State, 118 Tenn. 761, 102 S. W. 899. 
 
 s Strohm v. People, 160 111. 582, 48 N. E. 622, affirming 60 111. App. 128. 
 
 City of New York v. Chelsea Jute Mills, 43 Misc. Rep. 266, 88 N. Y. 
 Supp. 1085; Beauchamp v. Sturges & Bum Mfg. Co., 250 111. 303, &5 N. E. 
 204, Ann. Cas. 1912B, 275, afflj-med Sturges & Bum Mfg. Co. v. Beaucamp, 
 231 U. S. 320, 34 Sup. Ct. 60, 58 L. Ed. 245, L.R. A. 1915A, 1196; State v. 
 Rose, 125 La. 462, 51 South. 496, 26 L. E. A. (N. S.) 821 ; Hanahan y. Pitts- 
 ton Coal MIn. Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. 
 St. Rep, 885; Green v. Appleton Woolen Mills, 162 \VHs. 145, 155 N. W. 958; 
 People v. Taylor, 192 N. Y. 39S, 85 N. E. 759, reversing 124 App. Div. 434, 108 
 N. Y. Supp. 796 ; Pettit v. Atlantic Coast Line E. Co., 156 N. C. 119, 72 S. E. 
 195 ; Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 Pac. 924, 105 Am. 
 St. Rep. 74; State v. Shorey, 48 Or. 396, 86 Pac. 881; State v. Deck, 108 Mo. 
 App. 292, 83 S. W. 314. 
 
 10 Gary v. State. 118 Ga. 17, 44 S. E. 817; People v. Loomis, 161 Mich. 
 651, 126 N. W. 985; Stone v. State, 1 Ga. App. 292, 57 S. E. 992. 
 
 iiLynam v. People, 65 111. App. 687; Cowley v. People, 83 N. Y. 464, 38 
 Am. Rep. 464 ; People v. Pierson, 176 N. Y. 201, 68 N. E. 243, 63 L. R. A. 187, 
 98 Am. St. Rep. 666; People v. Trank, 88 App. Dit. 294, 85 N. Y. Supp. 55. 
 
§193) CUSTODY AND PROTECTION 463 
 
 Juvenile Dependents and Delinquents 
 
 Perhaps the most noteworthy instances of legislation looking 
 to the care and protection of children are to be found in statutes 
 passed in most, if not all, states, in comparatively recent years, 
 providing ^r the care of delinquent, dependent, and neglected chil- 
 dren and establishing juvenile courts to administer the lawr. These 
 laws have been generally held to be constitutional,^^ and a valid 
 exercise of the police power of the state. ^^ Such statutes are in 
 conformity to a sound public policy,'* and are a proper exercise of 
 the right of the state as parens patriae to promote the well-being 
 of children unable to care for themselves or liable to become a 
 burden to the state, either through neglect or a tendency to be- 
 come criminal.'^ They are not objectionable as depriving parents 
 of their right to the custody of their children.'" 
 
 These statutes provide generally for the commitment of depend- 
 ent and neglected children to persons, societies, or institutions 
 where they will receive proper care,'^ and for the commitment of 
 delinquent children to proper industrial or reform schools." The 
 
 i^Pngli V. EoTiden, 54 Fla. 302, 45 South. 499, 14 Ann. Oas. 816; Rooks 
 V. TindaU, 138 Ga. 863, 76 S. E. 37S ; Ex parte Sharp, 15 Idaho, 120, 96 Pac. 
 563, 18 L. R. A. (N. S.) 886 ; In re Turner, 94 Kan. 115, 145 Pac. 871, Anh. 
 Cas. 1916E, 1022 ; Childress v. State, 133 Tenn. 121, 179 S. W. 643 ; Mill v. 
 Brown, 31 Utah, 473, 88- Pac. 609, 120 Am. St. Rep. 935 ; Leonard v. Licker, 3 
 Ohio App. 377. 
 
 13 Board of County Com'rs of Hillsborough County v. Savage, 63 Fla. 
 337, 58 South. 835 ; Egoff v. Board of Children's Guardians of Madison Coun- 
 ty, 170 Ind. 238, 84 N. E. 151 ; Sta,te v. Isenhuth, 34 S. D. 218, 148 N. W. 9. 
 
 1* State T. Brj-ant, 94 Neb. 754, 144 N. W. 804. 
 
 15 State ex rel. Cave v. Tlncher, 258 Mo. 1, 166 S. W. 1028, Ann. Cas. 19151), 
 696 ; State v. Dunn, 53 Or. 304, 99 Pac. 278, 100 Pac. 258 ; In re Turner, 94 
 Kan. 315, 145 Pac. 871, Ann. Cas. 1916E, 1022. These laws rest on the funda- 
 mental doctrine that a child from its birth owes allegiance to the government 
 of the country of its birth and is entitled to the protection of that govern- 
 ment. Ex parte Powell, 6 Okl. Cr. 495, 120 Pac. 1022. 
 
 18 United States v. Behrendsohn (D. C.) 197 Fed. 953; State v. Cagle, 111 
 S. C. 548, 96 S. E. 291. The state's power to detain minor children is not 
 arbitrary or unlimited, but depends on their lack of parental care and the 
 existence of improper environment. Ex parte Watson, 157 N. C. 340, 75 S. 
 E. 1049. 
 
 17 Rogers V. State, 4 Ga. App. 392, 61 S. E. 496; Lindsay v. Lindsay, 257 
 111. 328, 100 N. E. 892, 45 L. R. A. (N. S.) 908, Ann. Cas. 1914A, 1222 ; Henn 
 V. Children's Agency, 204 Fed. 766, 123 C. C. A. 216; Braua v. Braua, 139 
 La. 305, 71 South. 519 ; Moch v. Superior Court (Cal. App.) 179 Pac. 440. 
 
 18 Van Walters v. Board of Children's Guardians of Marion County, 132 
 Ind. 567, 32 N. E. 568, IS L. R. A. 431 ; In re Gassavvay, 70 Kan. 695, 79 Pac. 
 113; Mill V. Brown, 31 t'tah, 473, 88 Pac; 609, 120 Am. St. Rep. 935; Ex 
 
404 INFANTS (Ch. 14 
 
 statutes apply, of course, only to minors, and often only to minors 
 under 18 years of age.^' They are not criminal in character, but 
 rather benevolent, paternal, and reformatory."" Their object is 
 not punishment, but the removal of the delinquent from temptation 
 and improper environment."^ The statutes are remedial in their 
 nature and should be liberally construed."" 
 
 parte Pruitt, 82 Tex. Cr. R. .394, 200 S. W. 392 ; Ex parte Gilder, 98 Wash. 
 514, 167 Pac. 3093; White v. Board of Managers of State Industrial School, 
 79 Misc. Rep. 494, 141 N. Y. Supp. 173; People ex rel. New York Juvenile 
 Asylum v. Board of Sup'rs of Nassau County, 168 App. Div. 863, 153 N. Y. 
 Supp. 1076. Delinquency, as applied in these statutes, was unknown to the 
 common law. State v. Dunn, 53 Or. .804, 99 Pac. 278, lOO Pac. 258. The acts 
 or omisf^ions of a child, which in an adult would be a crime, constitute 
 juTenile delinquency, except where the child knew the wrongfulness thereof. 
 Ex parte Powell, 6 Old. Or. 495, 120 Pac. 1022. Refusal to attend school 
 is delinquency, under the Wisconsin Statute. State v. Freudenberg, . 166 
 Wis. 35, 163 N. W. 184. 
 
 19 EX parte Lewis, 3 Cal. App. 738. 86 Pac. 996; De Kay v. Oliver, 161 
 Iowa, 550, 143 N. W. 508; State v. Howard, 127 La. 435, 53 South. 677. 
 The operation of the law governing juvenile delinquents is not suspended 
 merely because the delinquent enters into the marriage relation. Stoker v. 
 Gowans, 45 Utah, 556, 147 Pac. 911, Ann. Gas. 1916E, 1025. See, also, 
 McPherson v. Day, 162 Iowa, 251, 144 N. W. 4. Though a woman has reached 
 1,8 years of age and is married, nevertheless, under Juvenile Court Act, St. 
 1909, p. 213, and as amended by St. 1915, p. 1225, juvenile court may control 
 her as a delinquent person until she reaches the age of 21j Ex parte Willis, 
 30 Cal. App. 188, 157 Pac. 819. But compare Ex parte Lewis, 8 Cal. App. 738, 
 86 Pac. 996. In Kentucky it is held that the age of the child to be determined 
 as of the time of the commission of the offense and not as of the time of the 
 indiclment or trial. Mattlngly v. Commonwealth, 171 Ky. 222, 188 S.'W. 370. 
 But compare State v. Ebarbo, 143 La. 591, 78 South. 973. 
 
 20 Ex parte Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. B. A. (N. S.) 886; 
 Childress v. State, 133 Tenn. 121, 179 S. W. 643 ; Mill v. Brown, 31 Utah, 473, 
 88 Pac. 609, 120 Am. St. Rep. 935 ; Mills v. State, 77 Tex. Cr. R. 129, 177 
 S. W. 492. The general purpose of the juvenile act is to provide for the 
 welfare of neglected and delinquent children, by placing the state, as far as 
 possible, in loco parentis, with a view to their information. State v. Eisen, 
 53 Or. 297, 99 Pac. 282, 100 Pac. 257. Proceedings before a juvenile court in 
 delinquency are in the nature of special civil actions. Ogden v. State, 162 
 Wis. 500, 156 N. W. 476. But see^ Miller v. State, 82 Tex. Cr. R. 495, 200 S. 
 W. 389. 
 
 21 In re Turner, 94 Kan. 115, 145 Pac. 871, Ann. Gas. 1916E, 1022; Weber 
 V. Doust, 84 Wiash. 330, 146 Pac. 023, reversing on rehearing 81 Wash. 668, 
 143 Pfec. 148; Ex parte Powell, 6 Okl. Cr. 495, 120 Pac. 1022; Juvenile 
 Court of Shelby County v. State, 139 Teun. 549, 201 S. W. 771, Ann. Oa.s. 
 1918D, 752. 
 
 2 2 State V. Dunn, 53 Or. 304, 99 Pac. 278, 100 Pac. 258; State v. Eisen, 53 
 Or. 297, 99 Pac. 282, 100 Pac. 257 ; People v. Turja, 157 Mich. 532, 122 N. W. 
 177; In re Lundy, 82 Wash. 148, 143 Pac. 885, Ann. Cas. 1916E, 1007. In 
 so far as they restrain the liberty of the child, the statutes should be strictly 
 
§§ 194-198) PRIVILEGES AND DISABILITIES 465 
 
 PRIVILEGES AND DISABILITIES 
 
 194. Infants are favorites of the law, which, for their protection, 
 
 has conferred upon them certain privileges and has im- 
 posed upon them certain disabilities. 
 
 195. CAPACITY TO HOLD OFFICE. An infant can hold an of- 
 
 fice which is purely ministerial, but not one requiring the 
 exercise of discretion, or involving financial responsibility. 
 
 196. CAPACITY TO MAKE WILL. At common law the will of 
 
 a male at 14, and of a female at 12, years of age, was valid 
 as to personalty, but an infant could not make a valid will 
 of real estate. 
 
 197. CAPACITY TO SUE AND DEFEND. An infant cannot 
 
 sue in person or by an attorney, but only by guardian or 
 next friend; and, when sued, he cannot appear in person, 
 by attorney or next friend, but only by a general guardian 
 or by guardian ad litem. In most states the appointment 
 of the next friend or guardian ad litem is regulated by 
 statute. Where an infant is sued, and has appeared by 
 guardian ad litem, he is bound by a judgment at law and 
 decree in equity as fully as an adult. 
 
 198. INFANTS AS WITNESSES. An infant is competent to tes- 
 
 tify as a witness if he understands the nature of an oath, 
 but not otherwise. 
 
 To protect infants from the injuries which because of their inex- 
 perience and immature mental capacity, might arise from their own 
 acts, or the acts of designing adults, the law has thrown its pro- 
 tection around them in the form of various privileges and dis- 
 abilities. The principal of these is, of course, the privilege of 
 avoiding their contracts and the disability to bind themselves by 
 their agreements under certain circumstances — a branch of the 
 subject to be treated at length hereafter.= ^ Infants' rights are not 
 superior to those of adults, and superior equities of an adult will 
 not be defeated merely /because the adversary party is an infant ; 
 
 construed. In re Lundy, supra. Statutes concerning Infants are entitled 
 to favorable and liberal construction, and it is not a valid objection ;to them 
 that within reasonable limits they may deprive children of their liberty or 
 their parents of their custo.dy. State v. Cagle, 111 S. O. 548, 96 S. E. 291. 
 23 Post, p. 471. 
 
 TIFF.P.& D.K.el.(3d Ed.)— 30 
 
466 INFANTS (Ch. 14 
 
 the principal .difference between the two classes being that the 
 rights of an infant will always be protected by the court, while 
 adults must protect their own rights.^* So, too, an infant is bound 
 by all constitutional and valid laws, just as all other persons are.^^ 
 There are, however, certain privileges and disabilities of a general 
 nature, almost universally regarded as necessarily incident to the 
 status of infancy.'' ° Thus, in the absence of any positive provisions 
 to the contrary, an infant will not be prejudiced by lapse of time " 
 or laches.^* So, too, it has been generally held that the doctrine 
 of estoppel has no application to infants,^" unless the conduct of 
 the infant was intentionally fraudulent.^" And, inasmuch as the 
 
 21 In re Shreve, 87 N. J. Eq. 7, 710. 103 Atl. 683. 
 
 2 5 Johnson v. Kennecott, Copper Corporation, 5 Alaska, 571. 
 
 28 Capacity to marry, see ante, p. 21. 
 
 2 7 Grimsby v. Hudnell, 76 Ga. 378, 2 Am. St Rep. 46; Calhoon v. Baird, 3 
 A. K. Marsh. (Ky.) 168; Reftor v. Rector, 3 Gilman. (111.) 105; Parker v. 
 Ricks, 114 Ija. 942, 38 South. 687; Taylor v. Leonard, 94 Ark. 122, 126 S. W. 
 387; Brown v. Hooks, 133 Ga. 345, 65 S. E. 780; Coe v. Sloan, 16 Idaho, 49, 
 iOO Pac. 354; Cobb v. Klosterman, 58 Or. 211, 114 Pac. 96; Cameron v* 
 Hicks, 141 N. O. 21, 53 S. E. 728, 7 K R.A. (N. S.) 407; Bess Mar Realty Co. 
 V. Capell (Sup.) 164 N. T. Siipp. 803; Hays v. Hinkle (Tex. Civ. App.) 193 
 S. w: 153 ; Meurin v. Kopplin (Tex. Civ. App.) 100 S. "W. 984. But, if the 
 statute of limitations has commenced to run in favor of title by adverse 
 possession, the running of such statute is not tolled upon the death of the 
 person in possession because of the minority of the party claiming under 
 him. Wood v. Bapp (S. B.) 169 N. W. 518 ; Armstrong v. Wilcox, 57 Fla. 30, 
 49 South. 41, 131 Am. St. Rep. 1080 ; Mullen v. Manhattan Ry. Co., 124 App. 
 Dlv. 295, 108 N. T. Supp. 852, affirmed 195 N. Y. 539, 88 N. E. 1126; Dunlap 
 V. Robinson, 87 S. C. 577, 70 S. E. 313 ; Sandmeyer v. Dolijsi (Tex. Civ. App.) 
 208 S. W. 113 ; Babcock Lumber & Land Co. v. Ferguson (D. C.) 243 Fed. 623. 
 
 28 Smith v. Sackett, 5 Gilman (111.) 534; Northern v. Scruggs, 118 Miss. 853, 
 79 South. 227. 
 
 2 0Laekman v. Wood, 25 Cal. 147; Sims v. Bverhardt, 102 U. S. 30O, 26 
 L. Ed. 87 ; Haimon v. Smith (C. O.) 38 Fed. 482 ; Gillespie v. Nabors, 59 Ala. 
 441, 31 Am. Rep. 20; Mierriam v. Cunningham, 11 Oush. (Mass.) 40; New 
 York Building Loan & Banking Co. v. Fisher, 23 App. Div. 363, 48 N. Y. 
 Supp. 152 ; Underwood v. Deckard, 34 Ind. App. 198, 70 N. E. 383 ; Headley 
 v. Hoopengarner, 60 W. Va. 626, 55 S. E. 744; Kirkham v. Wheeler-Osgood 
 Co., 39 Wash. 415, 81 Pac. 869; Raymond ~ v. General Motorcycle Sales Co., 
 230 Mass. 54, 119 N. B. 359; Gappmayer v. Wilkinson (Utah) 177 Pac. 763; 
 Gibney v. Allen, 156 Mich. 301,- 120 N. W. 811 ; Tobin v. Spann, 85 Ark. 556, 
 109 S. W. 534, 16 L. R. A. (N. S.) 672 ; HIai-per v. Utsey (Tex. Civ. App.) 97 S. 
 W. 508. In the absence of bad faith, neither the doctrine of estoppel nor that 
 of waiver applies to minors. Cowie v. Strohemeyer, 150 Wis. 401, 136 N. W. 
 956, 137 N. W. 778. 
 
 8 Headley v. Htaopengarner, 60 W. Va. 626, 55 S. E. 744; Harper v. Utsey 
 (Tex. Civ. App.) 97 S. W. 508 ; Ostrander v. Quin, 84 Miss. 230, 36 South. 257, 
 105 Am. St. Rep. 426; Lake v. Perry, 95 Miss. 550, 49 South. 569; Fowler 
 V. Alabama I^on & Steel Co,, 164 Ala. 414, 51 South. 393 ; Turner v. Stewart, 
 
§§ 194-198) PRIVILEGES AND DISABILITIES 467 
 
 infant is not bound by an estoppel, it has also been held that he 
 cannot urge it against an adult.^^ An infant may act as agent/" 
 but in some jurisdictions he cannot appoint an agent or attorney 
 in fact.'^ It has been held in some jurisdictions that an infant may 
 act as trustee/* though there are English authorities to the con- 
 trary." 
 
 Capacity to Hold Office 
 
 An infant rnay hold an office which is purely ministerial, but 
 when an office requires the exercise of discretion, or the safe dis- 
 charge of its duties involves the assumption of liabilities which 
 would not be binding on an infant, he, cannot, as a rule, be ap- 
 pointed.'® He cannot hold a public' office requiring the receipt and 
 disbursement of moneys, °^ nor can he act as administrator.'* 
 
 Capacity to Make Will 
 
 At common law, males at 14 years of age, and females at 12, 
 could dispose, of personal property by will,'° but neither could make 
 a valid devise of real estate until attaining majority.*" By stat- 
 ute,*^ in England, no will made by any person under 21 is valid; 
 and the age at which a will can be made in this country is now 
 
 149 Ky. 15, 147 S. W. 772 ; GEAUMAN MARX & OLINE CO. v. KRIENITZ, 
 142 Wis. 556, 126 N. W. 50, Cooley Cas. Persons and Domestic Relations, 251. 
 But see Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659. 
 
 31 Montgomery v. Gordon, 51 Ala. 377. 
 
 32 Talbot V. Bowen, 1 A. K. Marsh. (Ky.) 436, 10 Am. Dec. 747; Sima v. 
 Gunter, 201 Ala. 286, 78 South. 62. Compare United States Inv. Corp. v. 
 ririckson, 84 Minn. 14, 86 N. "W. 613, 87 Am. St. Rep. 326. 
 
 3 3 See post, p. 473. And see post, p. 474. 
 
 3* As an infant may he a trustee, equity will enforce a trust as to property 
 held by an infant as trustee. Clary v. Spain, 119 Va. 58, 89 S. B. 130. And 
 ■ see Sims v. Gunter, 201 Ala. 286, 78 South. 62. 
 
 3 6 In re Porter, 25 L. J. Ch. 482; In re Shelmerdine, 33 Law J. Oh. 474> 
 And see Lewin, Trusts, 37, 38. ' 
 
 ssCrosbie v. Hurley, Ale. & N. 431; Moore v. Graves, 3 N. H. 408 (col- 
 lecting cases). One otherwise qualified may act as appraiser of land 
 to be sold on execution, though he be under 21 years of age. W|hite v. Laurel 
 Land Co., 82 S. W. 571, 26 Ky. Law Rep. 775. Rehearing denied 83 S. W. 628, 
 26 Ky. Law Rep. 1235. 
 
 37 Claridge v. Evelyn, 5 Bam. & Aid. 81. 
 
 38 1 WlUiams, Ex'rs, 479; Ex parte Sergison, 4 Ves. 147; In re Goods of 
 Duchess of Orleans, 1 Swab. & T. 253; Rea v. Englesing, 56 Miss. 463; 
 Briscoe v. Tarklngton, 5 La. Ann. 692. 
 
 33 1 Williams, Ex'rs, 15; Davis v. Baugh, 1 Sneed (Tenn.) 477. The ques- 
 tion is not free from doubt. Co. Litt. 89b. 
 
 *o Jarm. Wills, 32 ; 4 Kent, Comm. 505. 
 *i St. 1 Vict. c. 26, § 7. 
 
468 INFANTS (Ch. 14 
 
 generally fixed by statutes, some of which are similar to the Eng- 
 lish statute. Some of the statutes make a distinction between 
 males and females, and some make a distinction between real and 
 personal property. 
 
 Capacity to Sue and Defend 
 
 While the rights of infants may be enforced in courts of law, 
 they cannot sue in person, nor are they competent to appoint at- 
 torneys to appear in court for them.*'' At common law they could 
 only sue by guardian. By the statute of Westm. II, c. 15, infants 
 were authorized to sue by prochein ami, or next friend, and, by well- 
 settled practice, may generally sue either by guardian or by next 
 friend,** though in many jurisdictions the whole matter is regu- 
 lated by statute. The next friend or guardian is an officer of the 
 court, rather than a party to the action,** and, in theory, is appoint- 
 ed by the court; but in practice, except when required by statute, 
 the obtaining of an order of appointrnent has fallen into disuse, as it 
 may subsequently be obtained if the authority to appear is ques- 
 tioned.*' His authority begins with the commencement of the 
 
 12 1 Co. Litt. 135b; Bartholomew v. Dighton, Cro. Eliz. 424; Gilbert v. 
 Mazerat, 121 La. 35, 46 South. 47 ; Thurston v. Tubbs, 250 111. 540, 95 N. E. 
 479, Ann. Oas. 1912B, 375 ; Miles v. Boyden, 3 Pick. (Mass.) 213 ; Wainwright 
 V. Wilkinson. 62 Md. 146 ; Clark v. Turner, 1 Root (Conn.) 200 ; Bennett v. 
 Davis, 6 Cow. (N. T.) 393; Moekey v. ©rey, 2 Johns. (N. Y.) 192. It has 
 been held that a fninor who has been emancipated does not need a guardian 
 ad litem to bring an action. 
 
 *3 1 Bl. Comm. 4€4 ; Deford v. State, 30 Md. 179 ; Barwick v. Rackley, 45 
 Ala. 215 ; Brown v. Hull, 16 Vt. 673 ; Judson v. Blanchard, 3 Conn. 579 ; Hurt 
 V. Railroad Co., 40 Miss. 391 ; Heath v. Maddock, 81 N. J. Eq. 469, 86 Atl. 
 945, affirmed 82 N. J. Eq. 366, 91 Atl. 1069; Scott v. Royston, 223 Mo. 568, 
 123 S. W. 454 ; Turman Cooperage Co. v. Shelton, 136 Ark. 570, 207 S. W. 42 ; 
 Simpson v. Alexander, 6 Cold. (Tenn.) 619. If, pending the action, the minor 
 arrives at his majority, he may at his election assume control of the prose- 
 cution or defense in his individual capacity. BERNARD v. PITTSBURG 
 COAL CO., 187 Mich. 279' lOO N. W. 396, Cooley Cas. Persons and Domestic 
 Relations, 246 ; Webb v. Harris, 32 Okl. 491, 121 Pac. 1082, Ann. Cas. 1914A, 
 602 ; Slafter v. Savage, 89 Vt. 352, 95 Atl. 790 ; Mahoney v. Park Steel Co., 
 217 Pa. 20, 66 Atl. 90 ; Ohio Valley Tie Co. v. Hayes, 180 Ky. 469, 203 S. W. 
 193. And see Johnson v. Alexander (Okl.) 167 Pac. 089. 
 
 **Davies v. Lockett, 4 Taunt. 765; Klaus v. State, 54 Miss. 644; Bartlett 
 V. Batts, 14 Ga. 539 ; Baltimore & O. R. Co. v. Fitzpatrick, 36 Md. 619. And 
 therefore he may be removed by the court at any time for cause. Barwick 
 V. Rackley, 45 Ala. 215 ; Deford v. State, 30 Md. 179 ; Simpson v. Alexander, 
 6 Cold. (Tenn.) 619. 
 
 *<i Guild v. Cranston, 8 Cush. (Mass.) 506 ; Judson v. Blanchard, 3 Conn. 
 579 ; Williams v. Cleaveland, 76 Conn. 426, 56 Atl. 850 ; Barwick v. Rackley, 
 45 Ala. 215 ; Deford v. State, 30 Md. 179 ; Klaus v. State, 54 Miss. 644 ; Rima 
 
§§ 194-198) ■ PRIVILEGES AND DISABILITIES 4G9 
 
 action, and he cannot sue when a demand is necessary before suit.'"' 
 In the appointment of the next friend, the courts will generally re- 
 spect the claim of a father, as the natural guardian of his child, to 
 represent the infant,*' unless his interest is adverse,** but relation- 
 ship is not a requisite in a next friend. *° 
 
 When an infant is sued he cannot appear in person or by attor- 
 -ney,^" or by next friend," but only by guardian." If the infant 
 already has a general guardian, it is his duty to appear for the in- 
 fant,^' unless his interest is adverse; ^* but, if no general guardian 
 has been appointed, a special guardian, known as a "guardian ad 
 litem," must be appointed by the court to represent the infant in 
 the action. ^° The appointment and duties of a guardian ad litem 
 are . regulated by statute in most of the states. The failure to 
 
 T. Iron Works, 120 N. Y. 433, 24 N. E. 940; Bartlett v. Batts, 14 Ga. 539. 
 By statute, a formal order of appointment is often required. But the ab- 
 sence of a formal order is not fatal to the appointment, if the fact appears 
 hy recitals or reference in the record. Crane v. Stafford, 217 111. 21, 75 N. B. 
 424. 
 
 *« Miles V. Boyden, 3 Pick. (Mass.) 213. 
 
 47Woolf V. Pemberton, 6 Ch. Div. 19; Rue v. Meirs, 43 N. J. Eq. 377, 12 
 Atl. 369; Donald v. Caty of Ballard, 34 Wash. 576, 76 Pac. 80. But see 
 Gilbert v. Mazerat, 121 La. 35, 46 South. 47. 
 
 *8 Patterson v. Pullman, 104 III. 80. 
 
 *9 Guild V. Cranston, 8 Cush. (Mass.) 506 ; Burns v. Wilson, 1 Mo. App. 179 ; 
 Bartlett v. Batts, 14 Ga. 539. 
 
 50 Co. Litt. 88b, note; Frescobaldi v. Kinaston, 2 Strange, 783; Bullard v. 
 Spoor, 2 Cow. (N. Y.) 430; Knapp v. Crosby, 1 Mass. 479; Bedell's Heirs v. 
 Lewis' Heirs, 4 J. J. Marsh. (Ky.) 562 ; Starbird v. Moore, 21 Vt. 529 ; Mar- 
 shall V. Wing, 50 Me. 62 ; Wright v. McNatt, 49 Tex. 425. 
 
 51 Fltzh. Nat. Brev. 27 H; Bush v. Linthicum, 59 Md. 344; Brown v. Hull, 
 16 Vt. 673. The only difference between the functions of the "next friend" 
 and the "guardian, ad litem" is that the former prosecutes, and the latter 
 defends, for the minor. Watts v. Hicks, 119 Ark. 621, 178 S. W. 924. 
 
 5 2 Mitchell V. Spaulding, 206 Pa. 220, 55 Atl. 968. 
 
 53 Mansur v. Pratt, 101 Mass. 60 ; Cowan v. Anderson, 7 Cold. (Tenn.) 284 ; 
 Colt T. Colt (C. C.) 19 Blatchf. 399, 48 Fed. 385 ; Hughes v. Sellers, 34 Ind. 
 337; Smith v. McDonald, 42 Cal. 484; Nunn v. Robertson, 80 Ark. 350, 97 S. 
 W. 293, Ann. Cas. 1913E, 1197. 
 
 5* Owens V. Gunther, 75 Ark. 37, 86 S. W. 851, 5 Ann. Gas. 130; Adams v. 
 De Dominques, 129 Ky. 599, 112 S. W. 663. 
 
 55 Bac. Abr. "Guardian," B 4; Roberts' Widow v. Stanton, 2 Munf. (Va.) 
 129, 5 Am. Dec. 463 ; Stinson v. Pickering, 70 Me. 273 ; Wells v. Smith, 44 
 Miss. 296; Simmons v. Arnim (Tex. Civ. App.) 192 S. W. 184-; Stewart v. 
 Parr, 74 W. Va. 327, 82 S. E. 259 ; GRAUMAN, MARX & CLINE CO. v. KRIBN- 
 ITZ, 142 Wis. 556, 126 N. W. 50, Cooley Cas. Persons and Domestic Relations, 
 251. Wherever the personal or property rights of an infant are involved in a 
 legal proceeding, the court must appoint a guardian ad litem for the protec- 
 tion of such rights. Mechling v. Meyers, 284 111. 484, 120 N. E. 542. 
 
470 INFANTS (Ch. 14r 
 
 appoint a guardian ad litem is, apart from statutory regulations, an 
 error which may be cured within a limited time after appearance; " 
 but, when no guardian ad litem has been appointed, a judgment 
 rendered under such circumstances is voidable," though valid until 
 set aside.'' Likewise, a decree in equity rendered against an in- 
 fant, after due service of process and appearance by guardian ad 
 litem, is binding on him until reversed, and is only reversible for 
 fraud, collusion, or error.'* 
 
 Infants as Witnesses 
 
 At common law there is no age under which an infant is incom- 
 petent to testify as a witness. The only rule is that he must be of 
 sufficient intelligence to understand the nature of an oath, and the 
 solemn responsibility which rests upon him to tell the truth. 
 Above the age of 14 years an infant is presumed to be competent, 
 though, of course, the presumption may be rebutted by showing 
 that he does not understand the nature of an oath. If he is under 
 14 years of age he is presumed to be incompetent, and his compc: 
 tency must be established to the satisfaction of the court before 
 he can be allowed to testify."" A child of 6 years has been allowed 
 to testify. Though there is some authority to the contrary,"^ by 
 the weight of opinion, when a child, on being examined as to his 
 
 5 6 Nicholson v. TYilborn, 13 Ga. 467. 
 
 5 7 0'Hara v. McConnell, 93 TJ. S. 150, 23 L. Ed. 840; Austin v. Trustees, 
 8 Mete. (Mass.) 196, 41 Am. Dec. 497; Walkenhorst v. Lewis, 24 Kan. 420; 
 Moore v. McEwen, 5 Serg. & K. (Pa.) 373; Barber v. Graves, 18 Vt. 290; 
 Hanlin v. Burk Bros. Meat & Provision Co., 174 Mo. App. 462, 160 S. W. 547 ; 
 Conway v. Clark, 177 Ala. 99, 58 South. 441; Dudley v. Dudley, 126 Ark. 
 182, 189 S. W. 838 ; Manning v. Boylinson, 68 Pa. Super. Ct. 512 ; Weiss v. 
 Coudrey, 102 Mo. App. 65, 76 S. W. 730 ; WEAVER v. GLENN, 104 Va. 443, 51 
 S. E. 835< Cooley Cas. Persons and Domestic Relations, 247. See, also, Mc- 
 Murtry v. Pairley, 194 Mo. 502, 91 S. W. 902, holding that, where an infant 
 defendant in partition was not properly served with process, the court was 
 without authority to appoint a guardian ad litem for him, and the judgment 
 as to him was void. 
 
 5 8 Colt V. Colt, 111 V. S. 566, 4 Sup. Ct. 553, 28 L. Ed. 520; Austin v. Trus- 
 tees, 8 Mete. (Mass.) 196, 41 Am. Dec. 497 ; England v. Garner, 90 N. C. 197 ; 
 Bernecker v. Miller, 44 Mo. 102 ; Walkenhorst v. Lewis, 24 Kan. 420. 
 
 09 1 Daniell, Ch. Prac. 205; Gregory v. Molesworth, 3 Atk. 626; Ralston 
 V. Lahee, 8 Iowa, 17, 74 Am. Dec. 291 ; Rivers v. Durr, 46 Ala. 418. 
 
 «o 1 Greenl. Ev. § 367; Rose. Cr. Ev. 94; Reg. v. Hill, 5 Cox, Cr. Cas. 259; 
 State V. Richie, 28 La. Ann. 327, 26 Am. Rep. 100 ; Kendall v. May, 10 Allen 
 (Mass.) 64 ; Carter v. State, 63 Ala. 52, 35 Am. Rep. 4 ; McGuire v. People, 44 
 Mich. 286, 6 N. W. 669, 38 Am. Rep. 265. 
 
 61 Rex v. Williams, 7 Car. & P. 320; Reg. v. Nicholas, 2 Oar. & K. 246. 
 
§ 199) • CONTRACTS OF INFANTS ' 4Tl 
 
 competency, does not appear to understand the nature of an oath, 
 and is of sufficient intelligence to understand if properly instructed, 
 the trial or proceeding may, in the discretion of the judge, be 
 postponed to allow such instruction."^ As a rule, the question of 
 an infant's competency as a witness is addressed to the sound dis- 
 cretion of the trial court, and its ruling will not be interfered with, 
 or cause a reversal of the judgment based on the infant's testi- 
 mony, except in a clear case.'^^ But the ruling is reviewable, and 
 will be ground for a reversal if it appears that the child was mani- 
 festly ignorant of all religious sanction."* 
 
 CONTRACTS OF INFANTS 
 
 199. The contracts of an infant are either void, voidable, or valid. 
 Thus— 
 
 (a) It was formerly held that all contracts of an infant which 
 
 are manifestly to his prejudice are absolutely void; and 
 in some states, still, powers of attorney, appointments of 
 an agent, contracts of suretyship, and bonds with a pen- 
 alty are held void. The tendency now is to hold no con- 
 tract void. 
 
 (b) Where a contract is not void, nor valid, as hereafter ex- 
 
 plained, it is simply voidable at the infant's option. Most 
 contracts are within this class. 
 
 (c) The following contracts are valid, and bind the infant as 
 
 well as the adult: 
 
 (1) Contracts created by law or quasi contracts. 
 
 (2) Contracts for necessaries. By the better opinion, these 
 
 are contracts created by law. 
 
 (3) Contracts entered into under direction or authority of 
 
 a statute. 
 
 (4) Contracts made in order to do what he was legally 
 
 boimd to do, and could have been compelled to do. 
 
 (5) Contracts entered into by him in a representative ca- 
 
 pacity. 
 
 62 Com. V. Lynes, 142 Mass. 577, 8 N. E. 408, 56 Am. Rep. 709. 
 
 63 McGuire v. People, 44 Mich. 286, 6 N. W. 669, 38 Am. Eep. 265. 
 «4Kader v. Adamson, 37 W. Va. 585, 16 S. E. 808; Beason v. State, 72 
 
 Ala. 191. 
 
ili INFANTS • (Ch. 14- 
 
 (6) In some jurisdictions an executed contract is binding 
 upon the infant where he has received a substantial 
 benefit under it, and cannot place the other party in 
 statu quo. As to this, however, there is much doubt, 
 and the weight of authority is the other way. 
 
 I 
 
 Of the various privileges conferred and disabilities imposed on 
 
 infants, the most important is the privilege of avoiding- their con- 
 tracts or the disability to bind themselves by their contracts, un- 
 der certain circumstances. "^ The contracts of infants are either 
 void, voidable, or valid — "void" being used in the sense of void for 
 all purposes, and incapable of ratification ; "voidable," in the sense 
 of voidable at the option of the infant ; and "valid," in the sense of 
 binding on the infant. 
 
 Void and Voidable Contracts 
 
 There is much confusion among the decisions in regard to in- 
 fants' contracts, arising from the failure to use the words "void" 
 and "voidable" in a uniform sense; "void" being used in many 
 cases to mean simply not enforceable, and in others to mean not 
 capable of ratification. But, aside from this, there is great incon- 
 sistency; among the cases as to what contracts are void, and what 
 are voidable; a gradual change having taken place in most juris- 
 dictions in favor of holding infants' contracts voidable rather than 
 void. Many contracts which would formerly have been held void 
 are now held merely voidable. The object of the law being to pro- 
 tect the infant from dangers peculiar to infancy, it is considered 
 that this object is fully attained by leaving it for him to decide 
 whether or not he will be bound on reaching his majority.'" 
 
 Keane v. Boycotf is a leading case representing the old rule. 
 
 6 6 Generally speaking, and subject to certain exceptions to be discussed 
 hereafter, infants are not bound by their contracts, being incapable of con- 
 tracting. Lee V. Equitable Life Assur. Soc, 195 Mo. App. 40, 1S9 S. W. 1195 ; 
 Daughterty v. Eeveal, 54 Ind. App. 71, 102 N. E. 381. The fact that he has 
 no parent or guardian does not clothe him with power to contract. Wickham 
 V. Torley, 136 Ga. 594, 71 S. E. 881, 56 L. ^. A. (N. S.) 57. And in respect 
 of the power to contract the law makes no distinction between an infant of 
 tender years and one who has almost attained his majority, except in so far 
 as the rules may be modified by statute. Ex parte McFerren, 184 Ala. 223, 
 63 South. 159, 47 L. E. A. (N. S.) 543, Ann. Cas. 1915B, 672, reversing Edge- 
 wood Highland Land Co. v. McFerren, 9 Ala. App. 275, 63 South. 157^ 
 
 08 Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229. 
 
 67 2 PL Bl. 511. 
 
§ 199) CONTKACTS OP INFANTS 473 
 
 In that case the doctrine was stated to be (1) that where the court 
 could pronounce the contract for the benefit of ^the infant, as for 
 necessaries, it was good ; (2) that, where the court could pronounce 
 it to his prejudice, it was void; (3) that, in those cases where the 
 benefit or prejudice was uncertain, the contract was voidable only. 
 And the same doctrine has been laid down in this country."' Ac- 
 cording to this classification, and on the theory of manifest prej- 
 udice to the infant, some courts hold that a power or appointment 
 of attorney by an infant is absolutely void, and a nullity."' &ome 
 courts extend the rule to all appointments of agents.'" , And the 
 same has been held as to contracts of suretyship and obligations 
 with a penalty by infants.''^ In some states, by statute, contracts 
 relating to real property are void, if the infant is under 18 years 
 of age.'^ 
 
 88 2 Kent, Comm. 234; Tucker v. Moreland, 10 Pet. 65, 9 L. Ed. 345; Rob- 
 inson V. Weeks, 56 Me. 102 ; Dunton v. Brown, 31 Mich. 182 ; Green v. Wild- 
 ing, 59 Iowa, 679, 13 N. W. 761, 44 Am. Kep. 696. In Vent v. Osgood, 19 Pick. 
 (Mass.) 572, it was said: "Whether a contract by an infant be void or void- 
 able or binding is frequently a question of very difficult solution. If it be 
 clearly prejudicial to him, it is void. If it may be for his benefit, or to his 
 damage, it is voidable at his election, and he may avoid it during his minor- 
 ity, or when he becomes of full age. If the contract be clearly beneficial to 
 him, he is bound." An infant's contracts cannot be enforced against him 
 during infancy, if not beneficial to the infant, and can be enforced only to 
 the extent that they are beneficial. Covault v. Nevitt, 157 Wis. 113, 146 N. W. 
 1115, 51 L. R. A. (N. S.) 1092, Ann. Gas. 1916A, 959. 
 
 «» Saunderson v. Marr, 1 H. Bl. 75; Lawrence's Lessee v. McArter, 10 
 Ohio, 37; Wainwright v. Wilkinson, 62 Md. 146; Knox v. Flack, 22 Pa. 337; 
 Waples V. Hastings, 3 Har. (Del.) 403 (bolding that a warrant of attorney to 
 confess judgment is void) ; Pyle v. Cravens, 4 Ldtt. (Ky.) 17 ; Bennett v. 
 Davis, 6 Cow. (N. X.) 393. The same court refused to follow the rule in the 
 case of a power coupled with an interest. Duvall v. Graves, 7 Bush. (Ky.) 
 461. 
 
 ""> Trueblood v. Trueblood, 8 Ind. 195, 65 Am. Dec. 756 ; Poston v. Wil- 
 liams, 99 Mo. App. 513, 73 S. W. 1099 ; Armitage v. Widoe, 36 Mich. 124 ; 
 Flexner v. Dickerson, 72 Ala. 318 ;. Glass v. Glass, 76 Ala. 368 ; Smoot v. Ryan, 
 187 Ala. 396, 65 South. 828; Weidenhammer v. McAdams, 52 Ind. App. 98, 
 98 N. E. 883 ; McDonald v. City of Spring Valley, 285 111. 52, 120 N. B. 476, 
 2 A. L. R. 1359, reversing 209 111. App. 7. But see post, p. 474. 
 
 71 Suretyship, Maples v. Wightman, 4' Conn. 376, 10 Am. Dec. 149. Obliga- 
 tions with a penalty, Fisher v. Mowbray, 8 East, 330; Baylis v. Dineley, 3 
 Maule & S. 477. 
 
 72 Comp. Laws N. D. 1913, § 4338 ; Civ. Code Cal. § 33. See Lee v. Hibernia 
 Savings & Loan Soc., ViHJ Cal. 656, 171 Pac. 677; Gruba v. Chapman, 36 S. 
 D. 119, 153 N. W. 929 ; Hakes Inv. Co. v. Lyons, 166 Cal. 557, 137 Pac. 911 ; 
 Jefferson v. Gallagher, 56 Okl. 405, 150 Pac. 1071. Laws Okl. 1909, c. 13, lim- 
 iting right of married minor to convey real estate to that acquired after 
 
474 INFANTS (Ch. 14 
 
 In many cases, on the other hand, the courts have rejected this 
 doctrine, and the tendency to-day is to leave it for the infant to 
 pass on the question of benefit or prejudice on reaching his ma- 
 jority. Under these decisions, all, or nearly all, contracts of infants, 
 are merely voidable,^^ without regard to their appearing to be prej- 
 udicial to the infant or otherwise, excepting certain contracts which 
 are binding on him.''* Thus, in Williams v. Moor," Baron Parke 
 said: "The promise is not void in any case unless the infant 
 chooses to plead his infancy." And in a recent case ''" it was said: 
 "The true doctrine now seems to be that the contract of an infant 
 is in no case absolutely void. An infant may, as a general rule, 
 disaffirm any contract into which he has entered ; but, until he 
 does so, the contract may be said to subsist, capable of being made 
 absolute by affirmance, or void by disaffirmance, on his arriving 
 at age. In other words, infancy confers a privilege, rather than 
 imposes a disability." According to this doctrine, some of the 
 courts, contrary to the cases heretofore referred to, regard powers 
 of appointments of attorneys, and all appointments of agents, mere- 
 
 marriage, does not apply to land owned by married minor woman before its- 
 enactment. Crump V. Guyer, 60 Okl. 222, 157 Pac. 321, 2 A. L. R. 331. 
 
 73 Morton v. Steward, 5 111. App. 533 ; Reed v. Lane, 61 Vt. 481, 17 Atl. 
 796 ; In re Huntenberg (D. C.) 153 Fed. 768 ; Luce v. Jestrab, 12 N. D. 548, 
 97 N. W. 848; Helland v. Colton State Bank, 20 S. D. 325, 106 N. W. 60; 
 COURSOLLE V. WETERHAUSER, 69 Minn. 328, 72 N. W. 697, Cooley Cas. 
 Persons and Domestic Relations, 249; Jones v. Valentines' School of Teleg- 
 raphy, 122 Wis. 318, 99 N. W. 1048 ; Henderson v. Clark, 163 Ky. 192, 173 S. 
 W. 367 ; In re Farley, 213 N. Y. 15, 106 N. E. 756, L. R. A. 1916D, 816, Ann. 
 Cas. 1916C, 494, reversing 161 App. Div. 63, 146 N. Y. Supp. 291 ; Grievance 
 Committee v. Ennis, 84 Conn. 594, 80 Atl. 767 ; Clemmer v. Price, 59 Tex. Civ. 
 App. 84, 125 S. W. 604; Casement v. Callaghan, 35 N. D. 27, 159 N. W. 77; 
 Driunmond v. Drummond (Sur.) 171 N. Y. Supp. 477 ; La Rosa v. Nichols, 92 
 N. J. Law, 375, 105 Atl. 201, 6 A. L. R. 412, reversing judgment (Sup.) La 
 Rose V. Same, 91 N. J.' Law, 355, 103 Atl. 390 ; Sims v. Gunter, 201 Ala. 
 286, 78 South. 62. And see Harner v. Dipple, 31 Ohio St. 72, 27 Am. Rep. 
 496 ; Fetrow v. Wiseman, 40 Ind. 148 ; Henry v. Root, 33 N. Y. 526 ; Holmes 
 V. Rice, 45 Mich. 142, 7 N. W. 772 ; Mustard v. Wqhlford's Heirs, 15 Grat. 
 (Va.) 329, 76 Am. Dec. 209; Cole v. Pennoyer, 14 111. 158; Illinois Land & 
 Loan Co. v. Bonner, 75 111. 315 ; Bpzeman v. Browning, 31 Ark. 364 ; Weaver 
 V. Jones, 24 Ala. 420; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Pars. 
 Cont. 295; Pollock, Cont. 52. The modern rule has been followed in regard, 
 to all classes of contracts. For collection of authorities in regard to particu- 
 lar contracts, see 22 Cyc. pp. 527-538, 580-600. 
 
 '* Post, p. 477. 
 
 "s 11 Mees. & W. 256. 
 
 JOLemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476. 
 
§ 199) CONTRACTS OP INFANTS 475 
 
 ly voidable by the infant at his option.''^ And the same is true of 
 ■contracts of suretyship and obligations with a penalty.'^* Except 
 in states where the rule has been changed by statute/" the cases 
 generally hold that an infant's conveyances or mortgages of real 
 estate, his purchases of real estate, and his sales mortgages, and 
 purchases of personal property, merely voidable.'" The same may 
 be said of most other contracts — partnership agreements,'^ agree- 
 
 'T Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229; Benson v. Tucker, 212 
 Mass. 60, 98 N. E. 589, 41 L. E. A. (N. S.) 1219; Hardy v. Waters, 38 Me. 
 450; Towle v. Dresser, 73 Me. 252; Alsworth v. Cordtz, 31 Miss. 32. See. 
 also, Ferguson v. Railway Co., 73 Tex. 344, 11 S. W. 347; Simpson v. Pru- 
 dential Ins. Co., 184 Mass. 348, 68 N. E. 673, 63 L. R. A. 741, 100 Am. St. 
 Rep. 560. 
 
 7 8 Suretyship, Owen v. Long, 112 Mass. 403; Reed v. Lane, 61 Vt. 481, 17 
 Atl. 796 ; Fetrow v. Wiseman, 40 Ind. .148 ; Williams v. Harrison, 11 S. C. 
 412 ; Hellaijd v. Colton State Bank, 20 S. D. 325, 106 N. W. 60 ; Harner v. 
 Dipple, 31 Ohio St. 72, 27 Am. Rep. 496. Bonds with a penalty, Mustard v. 
 Wolilford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Weaver v. Jones, 24 
 Ala. 420. 
 
 7» See ante, p. 478, note 72. 
 
 8 "Cole V. Pennoyer, 14 111. ^58; Irvine v. Irvine, 9 Wall. 617, 19 L. Ed. 
 ■800; Zouch v. Parsons, 3 Burrows, 1794; Bigelow v. Kinney, 3 Vt. 353, 21 
 Am. Dec. 589 ; Logan v. Gardner, 136 Pa. 588, 20 Atl. 625, 20 Am. St. Rep. 
 939 ; Henry v. Boot, 33 N. Y. 526 ; Callis v. Day, 38 Wis. 643 ; Manning v. 
 Johnson, 26 Ala. 446, 62 Am. Dec. 732 ; French v. McAndrew, 61 Miss. 187 ; 
 Tillery v. Land, 136 N. 0. 537, 48 S. B. 824 ; White v. Sikes, 129 Ga. 508, 59 
 S. E. 228, 121 Am. St Rep. 228; Tomczek v. Wieser, 58 Misc. Rep. 46, 108 
 N. T. Supp. 784 ; Lawder v. Larkin (Tex. Civ. App.) 94 S. W. 171 ; Eldriedge 
 V. Hoefer, 52 Or. 241, 93 Pac. 246; Robinson v. Allison, 192 Mo. 366, 91 S. 
 TV. 115 ; Shaffer v. Detie, 191 Mo. 377, 90 S. W. 131 ;' Hiles v. Hiles, 82 S. W. 
 5iS0, 26 Ky. Law Rep. 824, rehearing denied 83 S. W. 615, 26 Ky. Law Rep. 
 1264; Smith v. Smith's Ex'r, 107 Va. 112, 57 S. B. 577, 12 L. R. A. (N. S.) 
 1184, 122 Am. St. Rep. 831, 12 Ann. Cas. 857 ; Hatton v. Bodan Lumber Co., 
 57 Tex. Civ. App. 478, 123 S. W. 163 ; Strain v. Hinds, 277 111. 598, 115 N. 
 E. 563; Parrish v. Treadway, 267 Mo. 91, 183 S. W. 580; Merida v. Cum- 
 mings (Tex. Civ. App.) 115 S. W. 613 ; Hogan v. Utter, 175 N. C. -332, 95 S. 
 B. 565 ; Appell v. Appell, 235 111. 37, 85 N. E. 205 ; Forsee's Adm'k v. Forsee, 
 144 Ky. 169, 137 S. W. 836. 
 
 81 Dun ton v. Brown, 31 Mich. 182; Kuipers v. Thorne, 182 111. App. 28; 
 Latrobe v. Dietrich, 114 Md. 8, 78 Atl. 983 ; Gordon v. Miller, 111 Mo. App. 
 342, 85 S. W. 943. A minor who has entered into a partnership may disaffirm 
 the partnership agreement, and withdraw, and he may plead his infancy as a 
 •defense against personal liability for the firm debts. Shirk v. Shultz, 113 
 Ind. 571, 15 N. E. 12; Dunton v. Brown, 31 Mich. 182; Bush v. Linthicum, 
 59 Md. 344; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; 
 Yates V. Lyon, 61 N. Y. 344 ; Whittemore v. Elliott, 7 Hun (N. Y.) 518. But 
 he cannot withdraw what he has invested in the business from the claims of 
 firm creditors. Shirk v. Shultz, supra; Adams v. Beall, supra; Kitchen v. 
 Lee, 11 Paige (N. Y.) 107, 42 Am. Dec. 101; Page v. Morse, 128 Mass. 99; 
 
476 INFANTS (Cll. 14 
 
 merits to render services,'^ promissory notes,'^ indorsements of a 
 bill or note/* lease by or to infant,'" submission to arbitration,** 
 settlement of disputed boundary,'^ compromise of action or claim,** 
 release of damages,** promise to marry,"" or subscription to cor- 
 porate stock.°^ 
 
 Skinner, V. Maxwell, 66 N. C. 45; Furlong v. Bartlett, 21 Pick. (Mass.) 401. 
 In Moley v. Brine, 120 Mass. 324, it was held that, when the assets of the 
 firm are not sufficient to pay the partners the amount Invested by each in 
 full, the infant partner cannot insist on payment in full, but is only entitled 
 to share in the assets in proportion to the amount which he invested. An 
 infant cannot, as against his partners, insist that in taking the partnership's 
 accounts he shall be credited witn profits and not debited with losses, and 
 as against the firm's creditors he has no higher rights in the firm's property 
 than an adult partner. His only immunity is from personal liability. Elm 
 City Lumber Co. v. Haupt, 50 Pa. Super. Ct. 489. 
 
 82 Vent V. Osgood, 19 Pick. (Mass.) 572; Clark v. Goddard, 39 Ala. 164, 84 
 Am. Dec. 777 ; Harney v. Owen, 4 Blackf . (Ind.) 337, 80 Am. Dec. 662 ; Cain 
 V. Garner, 169 Ky. 633, 185 S. W. 122, L. B. A. 1916E, 628, Ann. Cas. 1918B, 
 824 ; Ping Min. & Mill. Co. v. Grant, 68 Kan. 732, 75 Pac. 1044. The rule that 
 no promise will be implied to pay for services rendered when it was mutually 
 understood that they were to be gratuitous applies to rendition of services 
 by an infant to an adult. Ramsdell v. Coombs Aeroplane Co. (Sup.) 161 N. ¥. 
 Supp. 360. 
 
 S3 Goodsell v. Myers, 3 Wend. (N. Y.) 479 ; Fetrow v. Wiseman, 40 Ind. 148; 
 Wamsley v. Lindenberger, 2 Band. (Va.) 478 ; Earle v. Beed, 10 Mete. (Mass.) 
 389 ; Minock v. Shortridge, 21 Mich. 314 ; Watson v. Buderman, 79 Conn. 687, 
 66 Atl. 515 ; Darlington v. Hamilton Bank, 63 Misc. Bep. 289, 116 N. T. Supp. 
 678 ; Wright v. Buchanan, 287 111. 468, 123 N. B. 53 ; Heffington v. Jackson, 
 43 Tex. Civ. App. 560, 96 S. W. 108. 
 
 84 Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101; Willis v. 
 Twambly, 13 Mass. 204; Frazier v. Massey, 14 Ind. 382; Briggs v. McCabe, 
 27 Ind. 327, 89 Am. Dec. 503; Murray v. Thompson, 136 Tenn. 118, 188 S. 
 W. 578, L. R. A. 1917B, 1172. 
 
 83 Zouch V. Parsons, 3 Burrows, 1794; Griffith v. Schwenderman, 27 Mo. 
 412. 
 
 8 6 Jones V. Bank, 8 N. Y. 228; Millsaps v. Estes, 137 N. C. 535, 50 S. E. 
 227, 70 Li. R. A. 170, 107 Am. St. Rep. 496; Barnaby v. Barnaby, 1 Pick. 
 (Mass.) 221. 
 
 8 7 Brown v. Caldwell, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 660. 
 
 8 8 Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489; Baker v. Lovett, 6 
 Mass. 78, 4 Am. Dec. 88. 
 
 8 9 Worthy v. Jonesville Oil Mill, 77 S. C. 69, 57 S. E. 634, 11 L. B. A. (N. 
 S.) 690, 12 Ann. Cas. 688 ; Interstate Coal Co. v. Love, 153 Ky. 323, 155 S. 
 W. 746 ; HoUinger v. York Rys. Co., 2l:.o Pa. 419, 74 Atl. 344, 17 Ann. Cas. 
 571; Chicago Telephone Co. v. Schulz, 121 IIU App. 573. 
 
 90 Holt v. Ward Clarencieux, 2 Strange, 937; Hunt v. Peake, 5 Cow. (N. 
 
 91WULLEB V. CHUSE GROCERY CO., 147 111. App. 224, affirmed 241 
 111. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. Rep. 216, 16 Ann. 
 Cas. 522, Cooley Cas. Persons and Domestic Relations, 262. 
 
§ 199) CONTRACTS OF INFANTS 477 
 
 Valid Contracts 
 
 Voidable contracts are in one sense valid — that is, they are valid 
 until avoided ; *^ but the term "valid," as used in reference to in- 
 fants' contracts, means such contracts as are binding on the infant 
 as well as on the contracting party. This is the sense in which the 
 term is used here. While most contracts made by an infant are 
 voidable by him, there are certain contracts which bind. 
 
 Quasi contracts or contracts created by law, because of a legal 
 duty on the part of the party bound, are as binding on an infant as 
 on an adult. The liability of a husband to pay for necessaries fur- 
 nished to his wife or children, and the liability of a husband to pay 
 his wife's antenuptial debts, are imposed on infant as well as adult 
 husbands."' And so it is as to any other quasi contractual liabili- 
 ty."* These kinds of obligation do not depend upon the consent of 
 the person bound, but are imposed by law, and therefore the rea- 
 sons for which an infant is allowed to avoid his contracts do not 
 apply. As will be seen, the liability of an infant for necessaries 
 furnished him is really a quasi contractual liability, and might 
 properly be treated under this head. The importance of the sub- 
 ject, however, makes a separate treatment advisable."^ 
 
 Contracts made by an infant under authority or direction of a 
 statute'" — as when he executes a bond for the support of a bastard 
 
 T.) 475, 15 Am. Dec. 475 ; Rush v. Wick, 31 Ohio St. 521, 27 Am. Rep. 523 ; 
 Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76, 10 Am. Dec. 709; Warwick v. 
 Cooper, 5 Sneed (Tenn.) 659. In McConkey v. Barnes, 42 111. App. 511, it was 
 held that a statute providing that persons under the age of 21 years "may 
 contract and be joined in marriage" does not remove an infant's disability, 
 so as to 'render him liable for breach of his promise to marry, but merely 
 means that an actual marriage by an infant shall be valid. 
 
 82 The deed of a minor conveys a good title. Hatton v. Bodau Lumber Co., 
 57 Tex. Civ. App. 478, 123 S. W. 163. A ;minor's declaration of trust is valid 
 until avoided. Eldriedge v. Hoefer, 52 Or. 241, 93 Pac. 246, 94 Pac. 563, 96 
 Pac. 1105. The mere fact a grantee in a deed is an infant does not prevent 
 the title from passing. Rohwer v. District Court of First Judicial Dist., 41 
 Utah, 279, 125 Pac. 671. 
 
 93 Roach V. Quick, 9 Wend. (N. Y.) 238 ; Cole v. Seeley, 25 Vt. 220, 60 Am. 
 Dec. 258 ; Butler v. Breck, 7 Mete. (Mass.) 164, 39 Am. Dec. 768 ; Nicholson 
 V. Wilborn, 13 Ga. 467 ; Cantine v. Phillips' Adm'r, 5 Har. (Del.) 428. 
 
 0* Post, p. 478. 
 
 05 See post, p. 480. 
 
 se Stanhope v. Shambow, 54 Mont. 360, 170 Pac. 752; Olemmer v. Price, 59 
 Tex. Civ. App. 84, 125 S. W. 604. See, also, Equitable Trust Co. v. Moss, 149 
 App. Div. 615, 134 N. Y. Supp. 533; Hamm v. Prudential Ins. Co., 137 App. 
 Div. 504, 122 N. Y. Supp. 35. 
 
478 INFANTS (Ch. 14 
 
 child,"' gives a recognizance for appearance in court,"* enters into 
 a contract of enlistment in the army,"" or makes an assignment un- 
 der a statute allowing "e-\;ery person" to assign' — cannot be avoid- 
 ed by him. So, too, it is provided by statute in some states that an 
 infant cannot disaffirm contracts entered into with one who, by 
 reason of the infant's having engaged in trade or business as an 
 adult, had reason to believe him capable of contracting.^ 
 
 A contract executed by an infant which the law could have com- 
 pelled him to execute is l^inding, and cannot be avoided by him, 
 though actually executed without the intervention of the law.' It 
 was accordingly held in the leading case of Zouch v. Parsons,* 
 where lands had been conveyed to an inffint as security, and a re- 
 conveyance made by the infant on payment of the debt, that the re- 
 conveyance could not subsequently be avoided. So, where a fa- 
 ther caused lands to be placed in his minor son's name to defraud 
 his creditors, and thereafter sold the lands to a purchaser for a 
 valuable consideration, and the infant executed a deed to such 
 pui'chaser, it was held that the infant could not avoid the convey- 
 ance an coming of age.^ So, where an infant fraudulently obtained 
 ^the legal title to real estate under such circumstances as to create 
 a constructive trust in favor of another, and thereafter deeded the 
 property to the beneficiary, it was held that he could not disaffirm 
 his deed in execution of the trust, since it was a duty which a court 
 of equity would have compelled him to perform." So, generally, 
 
 »' People V. Moores, 4 Denio (N. Y.) 518, 47 Am. Dec. 272. 
 
 98 Tyler, Inf. § 122; State v. Weatherwax, 12 Kan. 463; Dial v. Wood, 9 
 Baxt. (Tenn.) ^96: 
 
 9 9Kex V. Inhabitants of Eotherfield Greys, 1 Barn. & C. 345 ;"U. S. v. 
 Balnbridge, 1 Mason, 71, 83 Fed. Cas. No. 14,497 ; In re Hearn (D. C.) 32 Fed. 
 141; Com. v. Murray, 4 Bin. (Pa.) 487, 5 Am. Dec. 412; U. S. v. Blakeney, 3 
 <3rat. (Va.) 405; Com. v. Gamble, 11 Serg. & R. (Pa.) 98; In re Higgins, 16 
 Wis. 351. 
 
 1 People V. Mullln, 25 Wend. (N. Y.) 698. 
 
 2 BEICKLBB V. GUENTHER, 121 Iowa, 419, 96 N. W. 895, Cooley Cas. Per- 
 sons and Domestic Relations, 256 ; Southern Cotton Oil Co. v. Dukes, 121 Ga. 
 787, 49 S. E. 788. But it is held in these cases that the infant must have 
 been carrying on business of his own and as a regular employment for a 
 livelihood or profit. An infant working for wages is not engaged in business 
 as an adult, within Civ. Code Ga. 1910, § 4235. Pearson v. White & Cochran, 
 13 Ga. App. 117, 78 S. B. 864. 
 
 8 Sims V. Gunter, 201 Ala. 286, 78 South. 62. 
 *3 Burrows, 1801. 
 
 B Elliott V. Horn, 10 Ala. 348, 44 Am. Dec. 488 ; Prouty v. Edgar, 6 Iowa, 
 353; Starr v. Wright, 20 Ohio St. 97. 
 
 " Nordholt v. Nordholt, 87 Gal. 552, 26 Pac. 599, 22 Am. St. Rep. 268. 
 
§ 199) CONTRACTS OF INFANTS 479 
 
 an infant cannot, on his majority, avoid an act which he could have 
 been compelled to perform.' 
 
 When an infant is under a legal obligation to do an act, he may 
 bind himself by a fair and reasonable contract made for the purpose 
 of discharging the obligation, as under a contract for necessaries 
 furnished his wife and children, where the parent is held liable for 
 his child's support,' or on a promi'ssory note given for such neces- 
 saries." Money advanced at the request of an infant to procure 
 his release from arrest for a debt incurred for necessaries,^" or to 
 pay a debt for necessaries," can be recovered from him. An agree- 
 ment by an infant with the mother of his illegitimate child, to sup- 
 port it, was held a valid claim against the minor's estate, on his de- 
 cease, as being an agreement to perform an obligation which he 
 was legally bound to perform.^^ A note given by an infant in set- 
 tlement of his liability for a tort has, on the same principle, been 
 held- enforceable against him.'^^ 
 
 Acts performed by an infant as executor, agent, officer of a cor- 
 poration, or in any other representative capacity, which do not 
 touch his own interest, but which are in the exercise of authority 
 intrusted to him, are binding.^* Such a contract is not a contract 
 of the infant. He does not attempt to bind himself. There is no 
 reason why he should not act as agent so as to bind another who 
 has duly authorized him. 
 
 In some jurisdictions it is held that, if the contract is so far exe- 
 cuted that the infant has received the consideration, he cannot re- 
 pudiate the contract, and recover what he has paid, unless he can 
 and does place the other party in statu quo.^" This doctrine is 
 not generally accepted, as we shall presently see, in cases where 
 the consideration cannot be returned.^* 
 
 7 2 Kent, Comm. 242 ; Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345 ; Shel- 
 don's Lessee v. Newton, 3 Ohio St. 494 ; Trader v. Jarvis, 23 W. Va. 100. 
 
 8 People V. Moores, 4 Denio (N. X.) 518, 4T Am. Dec. 272. 
 » Sawyer v. Cutting, 23 Vt. 486. 
 
 10 Clarke v. Leslie, 5 Esp. 28. 
 
 11 RandaU v. Sweet, 1 Denio (N. T.) 460. 
 
 12 Stowers v. HoUis, 83 Ky. 544 ; Gavin v. Burton, 8 Ind. 69. 
 
 13 Eay V. Tubbs, 50 Vt. 688, 28 Am. Rep. 519. 
 
 1* Mete. Cont. 66 ; Schouler, Dom. Rel. 416 ; Zouch v. Parsons, 3 Burrows, 
 1794, 1802. 
 
 15 2 Kent, Comm. 240 ; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. 
 Rep. 379. 
 
 18 Post, p. 508. 
 
iSO INFANTS (Ch. 14 
 
 LIABILITY FOR NECESSARIES 
 
 200. An infant is liable for the reasonable value of necessaries fur- 
 
 nished to him, or to his wife or, in some, but not all, ju- 
 risdictions, to his children, where he refuses or neglects 
 to provide for them. Ag he is liable only for the reasonable 
 value of the necessaries furnished him, he cannot bind 
 himself by an express contract of such a nature that the 
 consideration cannot be inquired into; but, if the consid- 
 eration can be inquired into, an express contract is binding 
 to the extent of the value of the necessaries. 
 
 201. The infant is not liable at law, though it is otherwise in equi- 
 
 ty, for money borrowed by him, though expended for 
 necessaries ; but he is liable, even at law, where the lender 
 applies the money himself, or sees it applied, in payment 
 for necessaries, or pays it for necessaries already furnished. 
 
 202. What are "necessaries" will depend upon the circumstances 
 
 of the particular case. The term includes whatever is 
 reasonably needed for subsistence, health, comfort, or ed- 
 ucation, taking into consideration his state, station, and 
 degrefe in life. The term does not include 
 
 (a) What is purely ornamental. 
 
 (b) What contributes solely to pleasure. 
 
 (c) What he is already fully supplied with. 
 
 (d) Articles which might otherwise be necessaries, when he is 
 
 living under the care of his parent or guardian, and is 
 supplied by him with such things as he considers neces- 
 sary. 
 
 (e) What concerns his estate or business, and not his person. 
 
 (f) Persons supplying an infant act at their peril, and cannot 
 
 recover if the actual circumstances were such that the 
 things fuirnished were not necessaries. 
 
 203. It is the province of the courts to determine whether the par- 
 
 ticular article furnished falls within the definition of "nec- 
 essaries," and of the jury to say whether they are neces- 
 saries under the circumstances of the particular case. 
 
 The most important valid contracts of an infant — that is, con- 
 tracts which cannot be avoided by him — are his contracts for neces- 
 
§§ 200-203) CONTRACTS OF INFANTS 481 
 
 saries. The privilege of avoiding his contracts, which the law rec- 
 ognizes in certain cases, is for the protection of the infant, and 
 there is no reason to relieve him from his contracts for neces- 
 saries." On the contrary, it might be a great hardship if he could, 
 not pledge his credit for necessaries. Accordingly, the cases are 
 uniform in holding infants bound to a certain extent by such con- 
 tracts.^* An infant is also liable for necessaries supplied his wife,^°- 
 on the theory that he is answerable for her support; and he has 
 also been held liable for necessaries supplied his child. ^° His liabil- 
 ity for his child's necessaries must be based on the parent's duty of 
 support ; and in England, and in some states in this country, where 
 it is held that a parent is under no common-law duty to support his 
 children,^^ a parent, in the absence of some contract, express or im- 
 plied, is not liable for their necessaries.^^ 
 
 An infant is not only liable on his contract for necessaries, but, 
 the contract being one implied in law, he is liable without any ex- 
 press contract. Moreover, his express contract, which. is other than 
 the contract implied in law, will not bind him.^^ For instance, the 
 law implies an agreement on his part to pay what the necessaries 
 are reasonably worth, and his agreement to pay more is Voidable.^* 
 
 If An infant binds himself by a contract for necessaries, if equitable and 
 reasonable, on the theory that he may make contracts beneficial to himself. 
 Smoot V. Kyan, 187 Ala. 396, 65 South. 828. 
 
 18 Infant is bound by his contract for necessaries in view of Kev. Codes, § 
 3593. Stanhope v. Shambow, 54 Mont. 360, 170 Pac. 752. 
 
 19 Turner v. Trisby, 1 Strange, 168; Chappie v. Cooper, 13 Mees. & W. 
 252 ; Cantine v. Phillips' Adm'r, 5 Har. (Del.) 428 ; People v. Moores, 4 Denio 
 (N. Y.) 518, 47 Am. Dec. 272. Or family, Chapman v. Hughes, 61 Miss. 339; 
 Price V. Sanders, 60 Ind. 310 ; Land v. State, 71 Fla. 270, 71 South. 279, L.. 
 R. A. 1916E, 720. 
 
 2 Van Valkinburgh v. Watson, 13 Johns. (N. T.) 480, 7 Am. Dec. 395; Ex 
 parte Ryder, 11 Paige (N. Y.) 185, 42 Am. Dec. 109; McConnell v. McCon- 
 nell, 75 N. H. 385, 74 Atl. 875. 
 
 21 Ante, p. -321. 
 
 2 2 "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." Lord Abinger, C. B., in Mortimore 
 V. Wright, 6 Mees. & W. 481. Accord, Shelton v. Springett, 11 C. B. 452; 
 Kelley v. Davis, 49 N. H. 187, 6 Am. Kep. 499 ; Gordon v. Potter, 17 Vt. ,348. 
 
 2 3 Jones V. Valentine's School of Telegraphy, 122 Wis. 318, 99 N. W. 1043; 
 Appeal of Ennis, 84 Conn. 610, 80 Atl. 772; Plummer v. Northern Pac. K. 
 Co., 98 Wash. 67, 167 Pac. 73. 
 
 2*Earle v. Reed, 10 Mete. (Mass.) 387; Davis v. Gay, 141 Mass. 531, 6 
 N. E. 549 ; Beeler v. Young, 1 Bibb (Ky.) 519 ; Parsons v. Keys, 43 Tex. 557 ; 
 Hyer v. Hyatt, 3 Cranch, C. C. 276, Fed. Cas. No. 6,977 ; Sims v. Gunter, 201 
 
 Ti]iT.P.& D.Rel.(3d Ed.)-S1 
 
482 INFANTS (Ch. 14 
 
 He cannot be liable on an executory contract for necessaries. ^^ 
 So, too, he may avoid any contract for necessaries the consideration 
 of which cannot be inquired into. Some cases go so far as to hold 
 that negotiable paper given for necessaries, even as between the 
 original parties, is void, though the consideration can be inquired 
 into, since it could not be inquired into if it should pass into an 
 innocent third party's hands for value. ^° There are other cases 
 which hold that a note given for necessaries is merely voidable as 
 between the original parties, since the consideration-is open to in- 
 quiry, and "that the value of the articles can be ascertained, and 
 judgment given pro tanto.^' 
 
 An infant is liable for money expended in payment of necessaries 
 furnished to him, but not for money supplied to him, to be by Eim 
 expended, although it is actually laid out for necessaries.^* "The 
 reason for this distinction is that in the latter case the contract 
 arises upon the lending, and that the law will not support contracts 
 which are to depend for their validity upon a subsequent contin- 
 gency." ^'' This objection does not arise, however, where the lend- 
 
 Ala. 286, 78 South. 62 ; Dubose v. Wheddon, 4 McCord (S. C.) 221 ; Locke v. 
 Smith, 41 N. H. 346. In Stone v. Dennison, 13 Pick. (Mass.) 1, 23 Am. Dec. 
 654, when an infant entered into an agreement to labor until of age, In con- 
 sideration of being furnished with board, clothing, and education, it was 
 held that, the agreement being fair and reasonable when entered into, the 
 infant could not maintain a quantum meruit for his services, on their turn- 
 ing out to be worth more than the agreed compensation. 
 
 ' 2= MAULDIN V. SOUTHERN SHORTHAND & BUSINESS UNIVERSITY, 
 3 Ga. App. 800, 60 S. E. 858, Cooley Cas. Persons and Domestic Relations, 259 ; 
 Jones V. Valentine's School of Telegraphy, 122 Wis. 318, 99 N. W. 1043; In- 
 ternational Text-Book Co. v. McKone, 133 Wis. 200, 113 N. W. 438. 
 
 2" Williamson v. Watts, 1 Camp. 552; Trueman v. Hurst, 1 Term R. 40; 
 In re SoltykbfC, [1891] 1 Q. B. 413; Swasey v. Vanderheyden's Adm'r, 10 
 Johns. (N. Y.) 33 ; Fenton v. White, 4 N. J. Law, 111 ; McMlnn v. Richmond^, 
 6 Yerg. (Tenn.) 9; Bouchell v. Clary, 3 Brev. (S. C.) 194; McCrillis v. How, 
 3 N. H. 348 ; Henderson v. Fox, 5 Ind. 489 ; Morton v. Steward, 5 111. App. 
 533. 
 
 '27 Earle v. Reed, 10 Mete. (Mass.) 387; Bradley v. Pratt, 23 Vt. 378; Du- 
 bose V. Wheddon, 4 McOord (S. C.) 221 ; Conn v. Coburn, 7 N. H. 368, 26 Am. 
 Dec. 746; Aaron v. Harley, 6 Rich. (S. C.) 26; Askey v. Williams, 74 Tex. 
 294, 11 S. W. 1101, 5 L. R. A. 176 ; Guthrie v. Morris, 22 Ark. 411. 
 
 2 8 Ellis V. Ellis, 5 Mod. 368; Ea,rle v. Peale, 10 Mod. 67; Clarke v. Leslie, 
 5 Esp. 28; KILGORE v. RICH, 83 Me. 305, 22 Atl. 176, 12 L. R. A. 859, 23 Am. 
 St. Rep. 780, Cooley Cas. Persons and Domestic Relations, 257; Randall v. 
 Sweet, 1 Denio (N. Y.) 460; Swift v. Bennett, 10 Cush. (Mass.) 438; Lein 
 V. Centaur Motor Co., 194 111. App. 509; Beeler v. Young, 1 Bibb (Ky.) 519; 
 
 2 8 Swift V. Bennett, 10 Cush. (Mass.) 438, Accord, Earle v. Peale, 10 
 Mod. 67. 
 
§§200-203) CONTRACTS OF INFANTS 483 
 
 er applies the money himself, or sees it applied, to the purchase of 
 necessaries; and in such case the infant is bound."* In equity, 
 however, the infant is liable for money. borrowed to pay for nec- 
 essaries, when it is so applied, even by the infant, because the lender 
 by subrogation stands in the place of the person paid.'* 
 W^at are Necessaries 
 
 The principal items included under infant's necessaries are his 
 food, clothing, lodging, medical attendance, and education.'^ Ac- 
 cordingly, an infant has been held liable for board supplied him,^^ 
 for food and lodging at an hotel;'* for clothing,"* medicine,'' a 
 horse, where horseback exercise was prescribed by a physician ; '^ 
 
 Genereux v. Sibley, 18 R. I. 43, 25 Atl. 345 ; Halne's Adm'r v. Tarrant, 2 Hill 
 (S. C.) 400 ; Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746. 
 
 so Smith V. Ollphant, 2 Sandf. (N. Y.) 306; Kandall v. Sweet, 1 Denio (N. 
 T.) 460 ; Equitable Trust Co. of New York v. Moss, 149 App. Dlv. 615, 134 
 N. Y. Supp. 533. 
 
 31 Marlow v. Pitfield, 1 P. Wms. 558 ; Price v. Sanders, 60 Ind. 310 ; Hick- 
 man V. Hall's Adm'rs, 5 Lltt. (Ky.) 338. 
 
 32 Co. Lltt. 172a ; Eeeve, Dom. Rel. 285 ; Schouler, Dom. Rel. § 411. See, 
 also, Western Union Telegraph Co. v. Greer, 115 Tenn. 368, 89 S. W. S27, 1 
 L. E. A. (N. S.) 525, holding that a contract between an infant and a tele- 
 graph company for the transmission of a telegram to the Infant's parents 
 requesting money for the Infant, who was practically destitute and without 
 work, was a contract for necessaries. A contract to perform services in re- 
 turn for food, clothing, and lodging In a contract for necessaries which the 
 Infant could make. Starke v. Storm's Bx'r, 115 Va. 651, 79 S. B. 1057. ' 
 
 33 Bradley v. Pratt, 23 Vt. 378 ; Barnes v. Barnes, 50 Conn. 572 ; Elvers v. 
 Gregg, 5 Eich. Eq. (S. C.) 274; Squier v. Hydllffi, 9 Mich. 274. But, when 
 undergraduates were supplied by the college with what Is generally necessary, 
 dinners supplied at private rooms were held, prima facie, not- necessaries. 
 Wharton v. Mackenzie, 5 Q. B. 606; Brooker v. Scott, 11 Mees. & W. 67. 
 
 34 Watson V. Cross, 2 Duv. (Ky.) 147. 
 
 35 Makarell v. Bachelor, Cro. Eliz. 583 ; Glover v. Ott's Adih'r, 1 McCord 
 (S. C.) 572. But not for clothing to an unnecessary amount. Burghart v. 
 Angersteln, 6 Car. & P. 690 ; Johnson v. Lines, 6 Watts & S. (Pa.) 80, 40 Am. 
 Dec. 542. 
 
 36 Glover v. Ott's Adm'r, 1 McCord (S. C.) 572 ; Werner's Appeal, 91 Pa. 222 : 
 Harris v. Crowley, 161 Mich. 383, 126 N. W. 421. A physician's services are 
 necessaries, for which an Infant is liable. Gibbs v. Poplar Bluff Lfght & 
 Power Co., 142 Mo. App. 19, 125 S. W. 840. 
 
 3 7 Hart V. Prater, 1 Jur. 623; Cornelia v. Ellis, 11 111. 585. But a buggy 
 is not necessary for an infant not engaged in any business requiring the use 
 of a buggy, nor attending school, so as to make it necessary for hlra to ride 
 to and from school. HeflBngton v. Jackson, 43 Tex. Civ. App. 560, 96 S. W. 
 108. A note for $100, given by a boy having an estate of less than $1,000, 
 for a horse which he used in going to school and in hauling wood, is invalid ; 
 the horse not being a necessary. Rhodes v. Frazier's Estate (Mo. App.) 204 
 S. W. 547. 
 
484 INFANTS (Ch. 14 
 
 for dentist's services;"^ and for a common-school education.^' 
 Though it has been said that a college education cannot be a. nec- 
 essary,*" there would seem to be no reason why a college education 
 might not be classed as a necessary, if suitaJDle to the infant's situ- 
 ation in life. As was said in an English case: "A knowledge of 
 the learned languages may be necessary for one ; a mere knowledge 
 of reading and writing may be sufficient for another." *'^ Yet a pro- 
 fessional education has been held not to be a necessary,*^ although 
 the opposite has been held as to instruction in a trade.*^ 
 
 An infant's necessaries vary according to the person. They are 
 not restricted to what is necessary to support life, but extend to ar- 
 ticles fit to maintain the particular person, in the state, situation, 
 and degree in life in which he is.** In Hands v. Slaney,*' Lord 
 
 3 8 strong V. Foote, 42 Ctonn. 203; McLean v. Jackson, 12 6a. App. 51, 76 
 S. E. 792.' 
 
 39 Co. Litt. 172 ; Middlebury College v. Chandler, 16 Vt. 686, 42 Am. Dec. 
 537 ; Price v. Sanders, 60 Ind. 810 ; International Text-Book Co. v. Connelly, 
 206 N. Y. 188, 99 N. B. 722, 42 L. K. A. (N. S.) 1115, affirming 140 App. Dlv. 
 939, 125 N. Y. Supp. 1125; Pickering v. Gunning, W. Jones, 182; Interna- 
 tional Text-Book Co. v. Doran, 80 Conn. 307, 68 Atl. 255 (where the question 
 whether Instruction in arithmetic and other common branches was necessary 
 to a youth who had finished two years in high school was held to be one 
 of fact) . Board while at school. KILGOKE v. KICH, 83 Me. 305, 22 Atl. 176, 
 12 L. R. A. 859, 23 Am. St. Rep. 780, Cooley Oas. Persons and Domestic Re- 
 lations, 257. 
 
 *o Middlebury College v. Chandler, 16 Vt. 689, 42 Am. Dec. 537. See, also, 
 Gayle v. Hayes' Adm'r, 79 Va. 542 ; International Text-Book Co. v. Connelly, 
 206 N. Y. 188, 99 N. E. 722, 42 L. R. A. (N. S.) 1115, affirming 140 App. Div. 
 939, 125 N. Y. Supp. 1125 ; Smith, Cont. 269. 
 
 41 Peters v. Fleming, 6 Mees., & W. 42. 
 
 *2 Turner v. Gaither, 83 N. C. 357, 35 Am. Rep. 574 ; Bouchell v. Clary, 3 
 Brev. (S. C.) 194; Wallin v. Highland Park Co., 127 Iowa, 131, 102 N. W. 
 839, 4 Ann. Cas. 421. Nor religious instruction. St. John's Parish v. Bron- 
 son, 40 Conn. 75, 16 Am. Rep. 17. A contract for a complete course In steam 
 engineering is not a necessary. International Text-Book Co. v. Connelly, 206 
 N. Y. 188, 99 N. E. 722, 42 L. E. A. (N. S.) 1115, affirming 140 App. Div. 939, 
 125 N. Y. Supp. 1125. 
 
 43 Cooper V. Simmons, 7 Hurl. & N. 707. And see Mauldin v. Southern < 
 Shorthand & Business University, 126 Ga. 681, 55 S. E. 922, 8 Ann. Cas. 130. 
 
 *4 Parke, B., In Peters v. Fleming, 6 Mees. & W. 42; Hands v. Slaney, 8 
 Term R. 578; Ryder v. Wombwell, L. R. 4 Exch. 32; Coates v. Wilson, 5 
 Esp. 152 ; Mauldin v. Southern Shortliand & Business University, 126 Ga. 681. 
 55 S. E. 922, 8 Ann. Cas. 130 ; Wallace v. Leroy, 57 W. Va. 263, 50 S. E. 243, 
 110 Am. St. Rep. 777 ; McKanna v. Merry, 61 111. 177 ; Jordan v. Coffield, 70 
 N. C. 110; Nicholson v. Spencer, 11 Ga. 607. The word "necessaries" is a 
 relative term, except when applied to such things as are obviously requisite 
 
 46 8 Term R. 578. 
 
§§ 200-203) CONTRACTS OF INFANTS 485 
 
 Kenyon said : "But, as to the other article furnished— namely, the 
 livery — I cannot ^say that it was not necessary for a gentleman in 
 :the defendant's situation to have a servant; and, if it was proper 
 for him to have one, it was equally necessary that the servant 
 should have a livery. The general rule is clear that infants are 
 liable for necessaries, according to their degree and station in 
 life." In a Massachusetts case" it was said: "It would be diffi- 
 cult to lay down any general rule upon this subject, and to say 
 what would or what would not be necessaries. It is a flexible, 
 and not an absolute, term, having relation to the infant's condition 
 in life, to the habits and pursuits of the place in which, and the 
 people among whom, he lives, and to the changes in those habits 
 and pursuits occurring in the progress of society. Articles which 
 are purely ornamental are not necessaries, though, if useful as well 
 as ornamental, they may be, if necessary to support the infant prop- 
 erly in his station in life." " "Articles of mere luxury are always 
 excluded, though luxurious articles of utility are in some cases al- 
 lowed." *' Likewise, those things which contribute only to enjoy- 
 ment as a journey taken for pleasure, cannot be considered as nec- 
 essaries.^* • 
 
 To come under the head of necessaries, the articles supplied an 
 infant must be suitable to his estate and degree, not only in point of 
 quality, but also in point of quantity ; °° and if a minor is already 
 supplied, no matter from what quarter, any further supply of goods 
 
 for the maintenance of existence, and depends on the social position and 
 situation in life of the infant, as well as on his own fortune and that of his 
 parents. International Text-Book Co. v. Connelly, 206 N. Y. 188, .99 N. B. 
 722, 42 L. R. A. (N. S.) 1115, affirming 140 App. Div. 939, 125 N. Y. Supp. 1125. 
 Articles purchased for or by an infant are not necessaries merely because 
 useful or beneficial to him, and a $100 note given by a 16 year old boy, hav- 
 ing an estate of less than $1,000, for a horse which he used in going to school 
 and hauling wood, was invalid ; the horse not being a necessary. Rhodes v. 
 Frazier's Estate (Mo. App.) 204 S. W. 547. 
 
 *6 Breed v. Judd, 1 Gray (Mass.) 455. 
 
 *f Peters v. Fleming, 6 Mees. & W. 42. 
 
 *8 Chappie V. dooper, 13 Mees. & W. 252. 
 
 4 9 Harrison v. Fane, 1 Man. & G. 550; McKanna v.- Merry, 61 111. 179; 
 House V. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189 ; Glover v. 
 Ott's Adm'r, 1 McCord (S, C.) 572 ; Beeler v. Young, 1 Bibb (Ky.) 519 ; Mil- 
 ler V. Smith, 26 Minn. 248, 2 N. W. 942, 37 Am. Rep. 407 ; Pyne v. Wood, 145 
 Mass. 558, 14 N. E. 775; Howard v. Simpkins, 70 Ga. 322. 
 
 soBurghart v. Angerstein, 6 Car. & P. 690; Johnson v. Lines, 6 Watts & 
 S. 80, 40 Am. Dec. 542;, Nicholson v. Spencer, 11 Ga. 607. 
 
486 INFANTS (Ch. 14 
 
 of the same description will not be necessaries."^ Where a minor 
 is living with parent or guardian who provides the real necessarie..- 
 of life, the minor cannot bind himself for what might ordinarily be 
 classed as his necessaries, for the parent or guardian has the right 
 to decide in what way the minor shall live; ^^ and, when a minor is 
 so residing, a presumption arises, rebuttable by proof, that he is 
 supplied with necessaries."^ 
 
 Among necessaries can be included only such things as concern 
 the person, and not the estate."* As was said in a Massachusetts 
 case: "" 
 
 "The wants to be supplied are, however, personal — either those 
 for the body, as food, clothing, lodging, and the like; or those nec- 
 essary for the proper cultivation of the mind." Articles used by 
 him in business are not necessaries, although essential thereto. 
 "His buying to maintain his trade, although he gain thereby his liv- 
 ing, shall not bind him." "® Building material used in the erectioii 
 
 51 Burghart v. Angerslein, 6 Car. & P. 690 ; Barnes v. Toye, 13 Q. B. Div. 
 410 ; Davis v. Caldwell, 12 Gush. (Mass.) 512 ; Nicholson v. Wilborn, 13 Ga. 
 467; Perrin v. Wilson, 10 Mo. 451; McAllister v. Gatlin, 3 Ga. App. 731, 60 
 S. E. 355 ; Potter v. Thomas (Sur.) 164 N. Y. Suft). 923 ; Guthrie v. Murphy, 
 4 Watts (Pa.) 80, 28 Am. Dec. 681. But see Eyder v. Wombwell, L. R. 3 
 Exch. 90. An infant who has an allowance sufficient to supply himself with 
 necessaries has been held not to be liable for articles supplied on credit. 
 Elvers v. Gregg, 5 Rich. Eq. (S. C.) 274. For collection of cases on this point, 
 see Ewell, Lead. Cas. note, pp. 63, 64. 
 
 52 2 Kent, Comm. 240; Bainbridge v. Pickering, 2 W. Bl. 1325; Hoyt v. 
 Casey, 114 Mass. 397, 19 Am. Rep.. 3T1 ; Kline v. L'Amoureux, 2 Paige (N. Y.) 
 419, 22 Am. Dec. 652 ; Elrod v. Myers, 2 Head (Tenn.) 33 ; Jones v. Colvin, 1 
 McMul. (S. 0.) 14; Pearson v. White & Cochran, 13 Ga. App. 117, 78 S. E. 
 864; Perrin v. Wilson, 10 Mo. 451; Wailing v. Toll, 9 Johns. (N. T.) 141; 
 Guthrie v. Murphy, 4 Watts (Pa.) SO, 28 Am. Dec. 681 ; Kraker v. Byrum, 
 13 Rich. (S. C.) 163. An infant, who voluntarily leaves the house of her 
 father, who has ability and willingness to support her, cannot make a binding 
 contract for necessaries. Goodman v. Alexander, 28 App. Div. 227, 50 N. Y. 
 Supp. 884. 
 
 6s Hull's Assignees v. Connolly, 3 McCord (S. C.) 6, 15 Am. Dec. 612 ; Per- 
 rin V. Wilson, 10 Mo. 451; Mauldin v. Southern Shorthand & Business Uni- 
 versity, 126 Ga. 681, 55 S. E. 922, 8 Ann. Gas. 130; McAllister v. Gatlin, 3 
 Ga. App. 731, 60 S. E. 355; Freeman v. Bridger, 49 N. C. 1; 67 Am. Dee. 25S. 
 
 ei Burton v. Anthony, 46 Or. 47, 79 Pac. 185, 68 L. R, A. 826, 114 Am. St. 
 Rep. 847, holding that an infant was not bound as for necessaries on a loan 
 of money to redeem land from mortgage sale. Money advanced to pay off a 
 prior mortgage is not a necessary. Magee v. Welsh, 18 Cal. 155 ; Bicknell v. 
 Bicknell, 111 Mass. 265 ; West v. Gregg's Adm'r, 1 Grant, Cas. (Pa.) 53. 
 
 5 Tupper v. Cad well, 12 Mete. (Mass.) 559, 46 Am. Dec. 704. 
 
 B8 Whittingham v. Hill, Cro. Jac. 494. Accord, Dilk v. Keighley, 2 Esp. 
 480; Wallace v. Leroy, 57 W. Va. 263,. 50 S. E. 243, 110 Am. St. Kep. 777; 
 
§§ 200-203) CONTRACTS OF INFANTS 487 
 
 of a house on the infant's land does not come uncjer the head of 
 necessaries,"^ and a mechanic's lien therefor cannot be enforced 
 against the property/' On the same principle, an infant cannot be 
 bound by a contract for repairs to be made on his real estate, though 
 necessary to prevent immediate injury; "" nor for protection by in- 
 surance against fire ; "" nor for life insurance ; "^ nor for legal serv- 
 ices to protect his property,"' though he would be liable for such 
 services in defending him on a criminal charge."^ 
 
 What are necessaries is a mixed question of law, and fact. It is 
 for the court to say whether the articles in question can be neces- 
 saries, and for the jury to S9,y whether they are.°* As was said in a 
 
 Lamkin & Foster v. l.e Doux, 101 Me. 5St, 64 Atl. 104S, 8 L. R. A. (N. S.) 104 ; 
 Mason v. Wright, 13 Mete. (Mass.) 306; Paul v. Smith, 41 Mo. App. 275; 
 House V. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Eep. 189 ; Decell v. 
 Lewenthal, 57 Miss. 331, 34 Am. Rep. 449; Wood v. Losey, 50 Mich. 475, 15 
 N. W. 557 ; Crew-Levick Co. v. Hull, 125 Md. 6, 93 Atl. 208 , Lein v. Centaur 
 Motor Co. oJ: Illinois, 194 III. App. 509. Where infant was engaged in busi- 
 ness of operating automobile as common carrier, whatever was furnished to 
 him to enable him to carry on such business did not come within description 
 of "necessaries." La Rose v. Nichols, 91 IJ. J. Law, 355, 103 Atl. 390. But 
 this question is regulated by statute in some states. See ante, p, 478. 
 
 67 Freeman v. Bridger, 49 N. C. 1, 67 Am. Dee. 258; Wornack v. Loar, 11 
 S. W. 438, 11 Ky. Law Eep. 6. 
 
 B8 Jones, Liens, § 1239 ; Price v. Jennings, 62 Ind. Ill ; Bloomer v. Nolan, 
 36 Neb. 51, 53 N. W. 1039, 38 Am. St. Rep. 690. 
 
 5 9Tupper V. Cadwell, 12 Mete. (Mass.) 559, 46 Am. Dec. 704; Wallis v. 
 Bardwell, 126 Mass. 366 ; PHILLIPS v. LLOYD, 18 R. I. 99, 25 Atl. 909, Cooley 
 Cas. Persons and Domestic Relations, 261; West v. Gregg's Adm'r, 1 Grant, 
 Gas. (Pa.) 53. But see James v. Sasser, 3 Ga. App. 568, 60 S. B. 329. 
 
 6 New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345. 
 
 «i Simpson v. Prudential Ins. Co. of America, 184 Mass. 348, 68 N. E. 673, 
 63 L. R. A. 741, 100 Am. St. Rep. 560, holding that the fact that such a con- 
 tract was reasonable and prudent was immaterial. See, also, Prudential 
 Life Ins. Co. of America v. Fuller, 29 Ohio Cir. Ct. R. 415. For a full dis- 
 cussion of the status of contract? of insurance taken out by an infant, see 
 Cooley, Briefs on the Law of Insurance, vol. 1, pp. 72-77. 
 
 82 Phelps V. Worcester, 11 N. H. 51; Watts v. Houston (Okl.) 165 Pac. 
 128; Mclsaac v. Adams, 190 Mass. 117, 76 N. E. 654, 112 Am. St. Rep. .821, 
 5 Ann. Cas. 729. But see Epperson v. Nugent, 57 Miss. 45, 34 Am. Rep. 434; 
 Slusher v. Weller, 151 Ky. 203, 151 S. W. 684. 
 
 6 3 Barker v. Hibbard, 54 N. H. 539, 20 Am. Rep. 160; Askey v. Williams, 
 74 Te.\'. 294, 11 S. W. 1101, 5 L. K. A. 176. In Munson v. Wasbband, 31 Conn. 
 303, 83 Am. Dec. 151, attorney's services in a civil suit were held necessaries. 
 To the same eflCect, see Burns v. Illionis Cent. R. Co., 190 111. App. 191; 
 Hickman & Wells v. McDonald, 164 Iowa, 50, 145 N. W. 322; Sutton v. 
 Heinzle, 84 Kan. 756, 115 Pac. 560, 34 L. R. A. (N. S.) 238, rehearing de- 
 nied 85 Kan. 332, 116 Pac. 614, 34 L. R. A. (N. S.) 239; Slusher v. Weller, 
 151 Ky. 203, 151 S. W. 684. 
 
 8* Anson, Cont. Ill, 112; Clark, Cont. 237; Merriam v. Cunningham, 11 
 
488 INFANTS (Ch. 14 
 
 Massachusetts case : "It is the well-settled rule that it is the prov- 
 ince of the court to determine whether the articles sued for are 
 within the class of necessaries, and, if so, it is the proper duty of the 
 jury to pass upon the question of the quantity, quality, and their 
 adaption to the condition and wants of the infant." °° 
 
 SAME— RATIFICATION AND DISAFFIRMANCE 
 
 204. A promise to perform an isolated act, or a contract that is 
 wholly executory, is of no effect until it has been ratified; 
 but an executed contract, or a contract that involves con- 
 tinuous rights and obligations, is valid luitil it has been 
 disaffirmed. 
 
 Of course, the contract of an infant, if absolutely void, is not sub- 
 ject to ratification, '° and need not be disaffirmed.*' Some voidable 
 contracts of an infant bind him unless he disaffirms them, while 
 Others do not bind him unless he ratifies them. A promise to per- 
 form some isolated act, or a contract that is wholly executory, has 
 no effect until it is ratified. °* On the other hand, voidable con- 
 tracts which are wholly or partially executed, and contracts involv- 
 ing continuing rights and obligations, need no ratification, but are 
 binding until they are disaffirmed."" In other words, it may be laid 
 down as a general rule that when an interest in property of a fixed 
 and permanent nature is vested either in the infant, or in the other 
 party to the contract, under an executed contract, as by a convey- 
 ance of real estate or transfer of personal property, or when tffe 
 infant enters into a continuing contractual relation, as where he be- 
 comes a partner or a stockholder, there must be some distinct act 
 of disaffirmance on the part of the infant to avoid the contract. 
 Thus, conveyances of land to an infant are valid until- disaffirm- 
 ed,''" and, an infant lessee of land becomes liable, until disaffirmance, 
 
 Cush. (Mass.) 40; McKanna v. Merry, 61 111. 177 ; Jordan v. Coffield, 70 N. O. 
 110 ; 1 Pars. Cont. 206, and oases in note v. 
 
 1^5 Morriam v. Cunningham, 11 Cush. (Mass.) 40. 
 
 60 Hakes Inv. Co. v. Lyons, 166 Cal. 557, 137 Pac. Oil. 
 
 8 7 Chamliers v. Chattanooga Union Ey. Co., 130 Tenu. 459, 171 S. W. 84. 
 
 osO'Donohue v. Smith, 130 App. Dlv. 214, 114 N. T. Supp. 536, affirming 
 57 Misc. Kep. 448, 109 N. X. Supp. 929. 
 
 «» Clemmer v. Price, 59 Tex. Civ. App. 84, 125 S. W. 604. 
 
 TOKohwer v. District Court of First Judicial District, 41 Utah, 279, 125i 
 Pac. 671. An Infant is capable of being donee of property, and in case of 
 
§ 204 CONTRACTS OF INFANTS 489 
 
 for all obligations attached to the estate, as to pay rent under a 
 lease rendering rent/^ and, when he continues in possession after 
 becoming of age, he is chargeable with the arrears which have 
 accrued during his minority/- An important class of contracts 
 which are binding upon an infant until he disaffirms them are his 
 sales and conveyances of real estate. His conveyances pass a good 
 title to the purchaser, subject only to be divested by his disaffirm- 
 ance.'^ And the vendee may convey his title to some one else, sif&- 
 ject to the infant's right of disaffirmance.''* 
 
 When an infant enters into a partnership, he contracts a continu- 
 ing obligation, and must disaffirm the relation on reaching his ma- 
 jority, or he will remain a partner, and be liable as such. His mere 
 failure to disaffirm will render him liable for the debts of the firm 
 contracted subsequent to his becoming of age, without proof of any 
 act on his part as a partner after his majority.'^ But, to render 
 him liable for debts of the firm contracted during his minority, there 
 must be a- ratification of them, express or implied.''' His mere 
 failure to disaffirm on reaching his majority, without proof of sub- 
 sequent acts as a partner, will not constitute a ratification, but fail- 
 ure to disaffirm, followed by acts as a partner, may. We will con- 
 
 X gift to infant no formal acceptance is necessary, but, If gift is for his ad- 
 vantage, the law accepts it for him, and wiU hold the donor bound ; while, 
 if gift is not for infant's advantage, the law will repudiate it, at his instance, 
 even though he in terms has accepted it. Ypungblood v. Hoeffle (Tex. Civ. 
 App.) 201 S. W. 1057. And see Petre v. Petre (Ind. App.) 121 N. B. 285. 
 
 TiBottiller v. Newport, 21 Hen. VI. p. 31; Northwestern Ry. Co. v. Mo- 
 Michael, 5 Exch. 114, 123; Ketsey's Case, Cro. Jac. 320. But see, contra, 
 Flexner v. Dickerson, 72 Ala. 31S. 
 
 7 2 Bac. Abr. "Infancy and Age," (1) 8 ; Rolle, Abr. 7-31. 
 
 '3 Irvine v. Irvine, 9 Wall. 617, 1\) L. Ed. SCO; HAYNES v. BENNETT, 53 
 Mich. 15, 18 N. W. 539, Cooley Cas. Persons and Domestic Relations, 276; 
 Parrish v. Treadway, 267 Mo. 91, 183 S. W. 580; McReynolds v. Stoats, 288 
 111. 22, 122 N. E. 860 ; Tunison v. Chamblin, 88 111. 378 ; Dixon v. Merntt, 21 
 Minn. 196 : Scranton v. Stewart, 52 Ind. 68 ; Green v. Green, 69 N. Y. 553, 25 
 Am. Rep. 233, and cases cited in notes 75-78, pp. 515, 516, post. For one to 
 maintain ejectment for land deeded by him while an infant, he must disaffirm 
 the deed before, and otherwise than by bringing the action. Tomczek v. Wieser, 
 58 Misc. Eep. 46, 108 N. Y. Supp. 784. ' 
 
 '* Mustard v. Wohlford's , Heirs, 15 Grat. (Va.) 329, 340, 76 Am. Dpc. 209; 
 Searcy v. Hunter, 81 Tex. 644, 17 S. W. 372, 26 Am. St. Rep. 837; Miles v. 
 Lingerman, 24 Ind. 885 ; Palmer v. Miller, 25 Barb. (N. Y.) 399. 
 
 '5 Goode V. Harrison, 5 Barn. & Aid. 147. 
 
 "Tobey v. Wood, 123 Mass. 88, 25 Am. Rep. 27; Todd v. Clapp, 118 Mass. 
 495; Bush v. Linthicum, 5© Md. 344. 
 
490 INFANTS (Ch. 14 
 
 sider this further when we come to ascertain what constitutes a 
 ratification." 
 
 A further illustration of an infant's contract which requires some 
 act of disaffirmance to 'avoid it is the position of an infant who has 
 become a stockholder in a corporation. "In the cases already de- 
 cided upon this subject, infants having become shareholders in 
 railway companies have been held liable to pay calls made whilst 
 they were infants. They have been treated, therefore, as persons 
 in a different situation from mere contractors, for then they would 
 have been exempt; but, in truth, they are persons who have ac- 
 quired an interest not in a mere chattel, but in a subject of a per- 
 manent nature, * * * and with certain obligations attached to 
 it which they are bound to discharge, * * * unless they have 
 elected to waive or disagree to the purchase altogether." '* When 
 an "nfant has become a stockholder, he may repudiate the contract 
 before or after majority; ''" but he must disaffirm within a reasonable 
 time after his majority, or he will be held to have ratified the con- 
 tract,^" and will be liable for calls. *^ 
 
 There is a difference of opinion whether an infant may disaffirm 
 his contract when he has induced the other party to contract with 
 him by false representations that he is of age. The general rule 
 seems to be that he is not, by reason of such false representations, 
 estopped from pleading his infancy, if sued on the contract,*^ nor 
 
 77 Post, p. 407. 
 
 Ts Parke, B., in London & N. W. Ry. Co. v. McMichael, 20 Law J. Exch. 
 97, 5 Exch. 114. 
 
 7 London & N. W. Ry. Co. v. McMichael, 20 Law J. Exch. 97 ; Ebbetts' Case, 
 5 Ch. App. 302; Lumsden's Case, 4 Ch. App. 31; WULLER v. CHUSE GRO- 
 CERY CO., 147 111. App. 224, affirmed 241 111. 898, 89 N. E. 796, 28 L. R. A. (N. 
 S.) 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 52'2, Cooley Oas. Persons and Do- 
 mestic Relations, 262; Seeley v. Seeley-Howe-Le Van Co., 128 Iowa, 294, 103 
 N. W. 961. See, Cook, Stock & S. §§ 66, 2E0, 318, for collection of cases on 
 infant stockholders. 
 
 8 Lumsden's Case, 4 Oh. App. 31; Cork & B. Ry. Co. v. Cazenove, 10 Q. B. 
 935 ; Ebbetts' Case, 5 Ch. App. 302 ; Mitchell's Case, L. R. 9 Eq. 363. 
 
 81 Dublin & W. Ry. Co. v. Black, 8 Exch. 181. 
 
 8 2 Hurley v. Russell, 10 N. H. 184, 34 Am. Dec. 146; Brown v. McCune, 5 
 Sandf. (N. Y.) 224; Studwell v. Shapter, 54 N. Y. 249; MeiTiam v. Cunning- 
 ham, 11 Gush. (Mass.) 40; Conrad v. Lane, 26 Minn. 389, 4 N. W. 695, 37 Am. 
 Rep. 412;' McKamy v. Cooper, 81 Ga. 679, 8 S. E. 312; New York Building 
 Loan Banking Co. v. Fisher, 23 App. Div. 363, 48 N. T. Supp. 152; Beau- 
 champ V. Bertig, 90 frk. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659; Inter- 
 national Text-Book Co. V. Doran, 80 Conn. 307, 68 Atl. 25i5; Miller v. St 
 Louis & S. F. R. Co., 188 Mo. App. 402, 174 S. W. 166; International Text- 
 
§§ 205-207) CONTRACTS OF INFANTS 491 
 
 is he estopped from avoiding the contract, and seeking affirmative 
 relief, as the recovery of property which he has parted with.^° 
 But there are cases to the contrary.'* 
 
 SAME— TIME OF AVOIDANCE 
 
 205. Executory contracts or executed contracts relating to person- 
 
 alty may be avoided by an infant either before or after at- 
 taining his majority; but conveyances of real estate can- 
 not be avoided during minority, though he may enter and 
 take the profits. 
 
 206. As a rule, mere lapse of time after attaining his ihajority will 
 
 not bar an infant's disaffirmance of his executory contract, 
 but in a few states he is required to disaffirm within a rea- 
 sonable time. 
 
 207. As a rule, executed contracts must be disaffirmed within a 
 
 a reasonable time after attaining majority; but in some 
 states it is held that the right to avoid a conveyance of real 
 estate is not barred by acquiescence for any period short 
 of that prescribed by the statute of limitations. 
 
 In this section we are to consider the time within which an in- 
 fant may avoid his contracts, and the time within which he must 
 avoid them. An infant's executory contract may be avoided by 
 him at any time, either before or after attaining his majority, by 
 refusing to perform it, and pleading his, infancy when sued for a 
 
 Book Co. V. Connelly, 206 N. Y. 188, 99 N. E. 722, 42 L. E. A. (N. S.) 1115, af- 
 firming 140 App. Div. 939, 125 N. T. Supp. 1125. And see Sims v. Everhardt, 
 102 U. S. 300, 26 L. Ed. 87. 
 
 sswhitcomb v. Joslyn, 51 Vt. 79, 31 Am. Rep. 678; Raymond v. Gen- 
 eral Motorcycle Sales Co., 230 Mass. 54, 119 N. B. 359 ; Norris v. Vance, 3 
 Rich. (S. C.) 164. His false representation that he Is of age will not pre- 
 vent him from avoiding his contract of service, and from recovering on 
 a quantum meruit. Burdett v. Williams (D. C.) 30 Fed. 697. Nor will a re- 
 cital in a deed that he is of age estop him from disaffirming the deed. Wle- 
 land V. Kobick, 110 111. 16, 51 Am. Rep. 676. But see Bradshaw v. Van 
 Winkle, 133 Ind. 134, 32 N. B. 877. He may be estopped to disaffirm under 
 such circumstances where he stands by, after majority, knowing that the land 
 is being conveyed to subsequent purchasers. Lacy v. Pixler, 120 Mo. 383, 
 25 S. W. 206. 
 
 8* Turner v. Stewart, 149 Ky. 15, 147 S. W. 772; Pace v. Cawood (Ky.) 110 
 S. W. 414 ; First Nat. Bank v. Casey, 158 Iowa, 349, 138 N. W. 897 ; Lake 
 V. Perry, 95 Miss. 550, 49 South. 569 ; La Rosa v. Nichols, 92 N. J. Law, 375, 
 
492 INFANTS (Ch. 14 
 
 breach of it.'" In the case of executed contracts, a distinction is 
 made between contracts relating to his real estate and contracts 
 relating to his personalty. A conveyance of his land by an infant 
 cannot be disaffirmed during his minority.*' He may enter on 
 the land, and take the profits until the time arrives when he has the 
 legal capacity to affirm or disaffirm the conveyance. But the con- 
 veyance is not rendered void by the entry. It may still be affirmed 
 after he reaches his majority.*'' 
 
 This rule does not apply to a sale and manual delivery of chattels 
 by an infant. Such a contract may be avoided by him while he is 
 still an infant. In Stafford v. Roof,** a leading New York case, it 
 was said: "The general rule is that an infant cannot avoid his 
 contract, executed by himself, and wJiich is therefore voidable only, 
 while he is within age. He lacks legal discretion to do the act of 
 
 105 Atl. 201, 6 A. L. E. 412, reversing 91 N. J. Law, 355, 103 Atl. 390; Put- 
 nal V. Walker, 61 Pla. 720, 55 South. 844, 36 L. R. A. (N. S.) 33 (if representa- 
 tions are fraudulent) ; GRAUMAN, MARX & CLINE CO. v. KRIBNITZ, 142 
 Wis. 556, 126 N. W. 50, Cooley Cas. Persons and Domestic Relations, 251 (if 
 contract is beneficial to him, but not otherwise). But, if grantee of deed knew 
 grantor was an infant, the latter was not estopped by his false representa- 
 tions. Asher v. Bennett, 143 Ky. 361, 136 S. W. 879. 
 
 SB Reeve, Dom. Rel. 254; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. 
 Rep. 53 ; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379 ; Covault 
 V. Nevitt, 157 Wis. 113, 146 N. W. 1115, 51 L. R. A. (N. S.) 1092, Ann. Cas. 
 1916A, 959; Vent v. Osgood, 19 Pick. (Mass.) 572; Ray v. Haines, 52 111. 485; 
 Whitmarsh v. Hall, 3 Denio (N. Y.) 375; Aborn v. Janis, 62 'Misc. Rep. 95, 
 113 N. Y. Supp. 309, affirmed 121 App. Div. 923, 106 N. Y. Supp. 1115 ; WULr 
 liBR V. CHUSE GROCERY CO., 241 111. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 
 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 522, Cooley Cas. Persons and Domestic 
 Relations, 262, affirming 147 III. App. 224; Gage v. Menczer (Tex. Civ. App.) 
 144 S. W. 717; Petty v. Roberts, 7 Bush (Ky.) 410. 
 
 86 Shreeves v. Caldwell, 135 Mich. 323, 97 N. W. 764, 106 Am. St. Rep. 396 ; 
 White V. Sikes, 129 Ga. 508, 59 S. E. 228, 121 Am. St. Rep. 228; O'Donohue 
 V. Smith, 130 App. Div. 214, 114 N. Y. Supp. 536, affirming 57 Misc. Rep. 448, ■ 
 109 N. Y. Supp. 929 ; Syck v. Hellier, 140 Ky. 888, 131 S. W. 30 ; DAMRON v. 
 RATLIFF, 123 Ky. 758, 97 S. W. 401, Cooley Cas. Persons and Domestic Rela- 
 tions, 274; Watson v. Ruderman, 79 Conn. 687, 66 Atl. 515, holding, further, 
 that a mortgagee cannot invoke equity to compel an Infant to exercise his 
 right to affirm or disaffirm ; Slater v. Rudderforth, 25 App. D. C. 497, holding 
 that the institution of a suit for cancellation of the conveyance is a sufficient 
 disaffirmance. Disaffirmance must be before and otherwise than by bring- 
 ing suit. Tomczek v. Wieser, 58 Misc. Rep. 46, 108 N. Y. Supp. 784. 
 
 »' Welch V. Bunce, 83 Ind. 382 ; Zouch v. Parsons, 3 Burrows, 1794 ; Irvine 
 V. Irvine, 5 Minn. 61 (Gil. 44) ; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. 
 Dec. 285; Hastings v. DoUarhide, 24 Cal. 195; Baker v. Kennett, 54 Mo. 88; 
 Stafford v. Roof, 9 Cow. (N. Y.) 626 ; McCormic v. Leggett, 53 N. C. 425. 
 
 88 9 Cow. 626. 
 
§§ 205-207) CONTRACTS OF INFANTS 493 
 
 t 
 
 avoidance. But this rule must be taken with the distinction that 
 the delay shall not work unavoidable prejudice to the infant, or the 
 object of his privilege, which is intended for his protection, would 
 not be answered. When applied to a sale of his property, it must 
 be his land — a case in which he may enter and, receive the profits 
 until the power of finally avoiding shall arrive. * * * Should 
 the law extend the same doctrine to sales of his personal estate, it 
 would evidently expose him to great loss in many cases; and we 
 shall act up to the principle of protection much more effectually by 
 allowing him to rescind while under age, though he may sometimes 
 misjudge, and avoid a contract which is for his own benefit. The 
 true rule, then, appears to me to be that, where the infant can en- 
 ter and hold the subject of the sale till his legal age, he shall be in- 
 capable of avoiding till that time; but where the possession is 
 changed, and there is no legal means to regain and hold it in the 
 meantime, the infant, or his guardian for him, has the right to ex- 
 ercise the power of rescission immediately." '° The rule is' very 
 general, almost universal, that an infant may avoid any contract in 
 relation to his personal property before he is of age."" Some courts 
 have held that he cannot avoid a partnership agreement, and re- 
 cover what he has put into the firm, until he attains his majority."^ 
 Other courts hold the contrary, on the ground that it is a contract 
 in relation to his personalty, and that all contracts of an infant in 
 relation to his personal property may he disaffirmed during his 
 minority.'" 
 
 8 9Eeeve, Dom. Eel. 254; Schouler, Dom. Rel. 409; Stafford v. Roof, 9 
 Cow. (N. Y.) 626; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Hoyt v. 
 Wilkinson, 57 Vt. 404; Riley v. Mallory, 33 Coiin. 201; Carr v. Clough, 26 
 N. H. 280, 59 Am. Dec. 845 ; Towle v. Dresser, 73 Me. 252 ; Willis v.- Twambly, 
 13 Mass. 204 ; Cogley v. Cushman, 16 Minn. 397 (Gil. 354) ; Carpenter v. Car- 
 penter, 45 Ind. 142. But see Armitage v. Widoe, 36 Mich. 124. And see ttie 
 cases cited in Clark, Cont. 245. 
 
 , '•"' See Shirk v. Shultz, 113 Ind. 571, 15 N. B. 12; Rice v. Boyer, 108 Ind. 
 472, 9 N. E. 420, 58 Am. Rep. 5?!: Shipley v. Smith, 162 Ind. 526, 70 N. B. 803 
 (disaffirmance of a lease, a leasehold being regarded as personalty in Indi- 
 ana) ; Price v. Furman, 27 Vt. 268, 65 Am. D«c. 194 ; Hoyt v. Wilkinson, 57 
 Vt. 404; Willis v. Twambly, 13 Mass. 204; Stafford v. Uoof, 9 Cow. (N. T.) 
 628 ; Bool v. Mis, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285 ; In re Huntenberg 
 (D. C.) 158 Fed. 768; Patterson v. Kasper, 182 Mich. 281, 148 N. W. 690, L. 
 R. A. 1915A, 1221; Cogley v. Cushman, 16 Minn. 397 (Gil. 354). 
 
 91 Dunton v. Brown, 31 Mich. 182 ; Armitage v. Widoe, 36 Mich. 130 ; 
 Bush y. Linthicum, 59 Md. 344. But see Adams v. Beall, 67 Md. 53, 8 Atl. 
 664, 1 Am. St. Rep. 379. 
 
 92 Shirk v. Shultz, 113 Ind. 571, 15 N. E. 12; Adams v. Beall, '67 Md. 53, 
 8 Atl. 664, 1 Am. St. Rep. 379. 
 
494 INFANTS (Ch. 14 
 
 As to whether a contract must be disaffirmed by an infant within 
 a reasonable time after he attains his majority, the authorities are 
 conflicting. In the case of executory contracts requiring ratification 
 to render them binding, the right to avoid them cannot be barred 
 by mere silence, without more. But it may be otherwise where the 
 circumstances are such as to make it the infant's duty to speak, for 
 in such a case silence or acquiescence may amount to a ratifica- 
 tion.'^ In the case of those contracts which require disaffirmance 
 after the infant becomes of age,°* such as conveyances of land, 
 sales and delivery of chattels, and the like, the' infant must, accord- 
 ing to the weight of authority, disaffirm the contract within a rea- 
 sonable time after he attains his majority, or it cannot be avoided at 
 all.°° Many courts, however, hold that a conveyance of land by an 
 
 »3 Post, p. 497. »*Ante, p. 491. 
 
 9= Delano v. Blake, 11 Wend. (N. T.) 85, 25 Am. Dec. 617; GOODNOW v. 
 EMPIRE LUMBER CO., 31 Minn. 468, 18 N. W. 283, 47 Am. Rep. 798, Ctooley 
 Cas. Persons and Domestic Relations, 267 (collecting the cases) ; Robinson v. 
 Allison, 192 Mo. 366, 91 S. "W. Il5; In re Huntenberg (D. C.) 153 Fed. 768; 
 Lawder v. Larkin (Tex. Civ. App.) 94 S. W. 171; Bigelow v. Kinney, 3 Vt. 
 353, 21 Am. Dec. 589 ; Kline v. Beebe, 6 Conn. 494 ; Wallace's Lessee v. Lewis, 
 4 Har. (Del.) 75 ; Hastings v. Dollarhide, 24 Cal. 195 ; Scott v. Buchanan, 11 
 Humph. (Tenn.) 468; Harris v. Cannon, 6 6a. 382; Langdon v. Clayson, 75 
 Mich. 204, 42 N. W. 805; Chambers, v. Chattanooga Union R. Co., 180 Tenn. 
 459, 171 S. W. 84; Criswell v. Criswell, 101 Neb. 349, 163 N. W. 302, L, 
 R. A. 1917E, 1103; Brown v.. Staab, 103 Kan. 611, 176 Pac. 113; Clyde v. 
 Steger & Sons Piano Mfg. Co., 22 Ga. App. 192, 95 S. E. 734; Krbel v. Krbel, 
 84 Neb. 160, 120 N. W. 935 ; Darlington v. Hamilton Bank, 63 Misc. Rep. 289, 
 116 N. T. Supp. 678; Stone v. Wolfe, 50 Tex. Civ. App. 231, 109 S. W. 981 ; 
 Pedro V. Pedro, 71 Misc. Rep. 296, 127 N. T. Supp. 997 ; Raggett v. Jackson, 
 160 N. C. 26, 76 S. E. 86 (must disaffirm within 3 years) ; Clemmer v. Price, 
 59 Tex. Civ. App. 84, 125 S. W. 604. Disaffirmance must be within one year 
 in some states. Holland v. Colton State Bank, 20 S. D. 325, 106 N. W. 60; 
 Luce V. Jestrab, 12 N. D. 548, 97 N. W. 848. In DAMRON v. RATLIFF, 123 Ky. 
 758, 97 S. W. 401, Cooley Cas. Persons and Domestic Relations, 274, it was 
 held that an infant may ratify a conveyance of real estate by failure to 
 disaffirm. But see Gaskins v. Allen, 137 N. C. 426, 49 S. E. 919, holding that 
 a deed executed by a married v^oman while a minor was not ratified by lapse 
 of time with no disaffirmance for more than 20 years. There is no definite 
 fixed time within which a minor must disaffirm after majority. Hobbs v. 
 Hinton Foundry, Machine & Plumbing Co., 74 W. Va. 443, 82 S. E. 267, Ann. 
 Cas. 1917D, 410. What constitutes a reasonable time is a question of fact. 
 Salser v. Barron (Tex. Civ. App.) 146 S. W. 1039. It depends on the circum- 
 stances of the case. Darlington v. Hamilton Bank, 63 Misc. Rep. 289, 116 
 N. Y. Supp. 678. For examples of reasonable and unreasonable delay, see 
 the following cases: Stone v. Wolfe, 50 Tex. Civ. App. 231, 109 S. W. 981 
 (2 years reasonable);' Hobbs v. Hinton Foundry, Machine & Plumbing Co., 
 74 W. Va. 443, 82 S. E. 267, Ann. Cas. 1917D, 410 (3 months' delay not un- 
 
§§ 208-209) CONTRACTS OF INFANTS 495 
 
 infant need not be disaffirmed within any period short of that 
 prescribed by the statute of limitations, and that acquiescence for 
 any shorter time will not bar his right to avoid it.°° In some states 
 it is provided by statute that an infant is bound by all his contracts 
 unless he disaffirms them within a reasonable time."' 
 
 SAME— WHO MAY AVOII? CONTRACT 
 
 208. The privilege of infancy is personal to the infant, and he alone 
 
 can take advantage of it during his life and sanity. On 
 his death, or if he becomes insane, his right of avoidance 
 passes to his heirs, personal representatives, or conserva- 
 tor, or guardian. 
 
 209. The other party to the contract, not being himself under dis- 
 
 ability, is boimd if the infant chooses to hold him. 
 
 The right to avoid a contract on the ground of infancy is a righ't 
 given to the infant for his protection. It is a personal privilege, 
 and during his life and sanity the infant alone can take advantage 
 
 reasonable) ; Hogan v. Utter, 175 N. C. 332, 95 S. E. 565 (within 3 years rea- 
 sonable) ; Gannon v. Manning, 42 App. I). O. 206 (IS days after attaining 
 majority reasonable) ; Daimwood v. Driscoll (Tex. Civ. App.) 151 S. W. 621 
 (3 years unreasonable) ; Kline v. Galland, 53 Wash. 504, 102 Pac. 440 (1 
 year, lacking 3 days, unreasonable delay). 
 
 9 « Drake's Lessee v. Ramsay, 5 Ohio, 251; Weeks v. Wilkins, 134 N. 0. 
 516, 47 S. E. 24; Prout v. Wiley, 28 Mich. 161; Sims v. Everhardt, 102 U. S. 
 300, 26 L. Ed. 87; Irvine v. Irvine, 9 Wall. 617, 19 t. Ed. SOO; Lacy v. Pix- 
 ler, 120 Mo. 383, 25 S. W. 206; Boody v. McKenney, 23 Me. 517; Eichardson 
 y. Pate, 93 Ind;. 423, 47 Am. Kep. 374 ; . Wells v. Seixas (0. C.) 24 Fed. 82, and 
 note collecting cases ; Putnal v. Walker, 61 Fla. 720, 55 South. 844, 36 L. R. A. 
 (N. S.) 33; Justice v. Justice, 170 Ky. 423, 1S6 S. W. 14S; Barker v. Fuestal, 
 103 Ark. 312, 147 S. W. 45 ; Lake v. Perry, 95 Miss. 550, 49 South. .569 ; Blake 
 V. Hollandsworth, 71 W. Va. 387, 76 S. E. 814, 43 L. E. A. (N. S.) 714; 
 Lannlng v. Brown, 84 Ohio St. 385, 95 N. E. 921, Ann. Gas. .19120, 772; 
 Watson V. Peebles, 102 Miss. 725, 59 South. 881. In Chicago Telephone. Co. v. 
 Schulz, 121 111. App. 573, the rule was applied to the disaffirmance of a release 
 of damages. Contingent remaindermen are not obliged to disaffirm a deed 
 conveying their interest on attaining majority until the termination of the 
 life estate. Steele v. Poe, 79 S. O. 407, 60 S. E. 951. Compare Parrish v. 
 Treadway, 267 Mo. 91, 183 S. W. 580, holding that minors, who executed deeds 
 to their contingent, remainders in lands which their mother biilA as life ten- 
 ant, could not, after 10 years after they reached their majority, disaffirm. 
 
 s^ Leacox v. Griffith, 76 Iowa, 89, 40 N. W. 109; McCulIough v. Flnley, 69 
 Kan. 705, 77 Pac. 696; Johnston v. Gerry, 34 Wash. 524, 76 Pac. 258, 77 Pac. 
 503 ; Johnson v. Storie, 32 Neh. 610, 49 N. W. 371. 
 
496 INFANTS (Ch. 14 
 
 of it.°' Thus, where an infant payee of a negotiable note trans- 
 ferred it by indorsement to a third party, and the maker subse- 
 quently paid the note to the infant, and pleaded such payment in 
 a suit against him by the indorsee, it was held that he could not 
 avoid the infant's indorsement.*' So, in an action for enticing 
 away a servant, it was held that the defendant could not escape 
 liability by showing that the servant was an infant, and therefore 
 was not bound by the contract of service.^ 
 
 The right to avoid a contract on the ground of infancy does not 
 pass to an assignee of the infant, and this is for the same reason.^ 
 Thus, where an assignee in insolvency sought the aid of a court 
 of equity to relieve his assignor's' estate from the incumbrance of a 
 mortgage executed while the assignor was an infant, it was held 
 that, since the right of avoidance was for the infant's protection, 
 he alone could have the benefit of it, and that the right did not 
 pass to the assignee.' Though there are a number of cases to the 
 contrary,* it has often been held that the right of avoidance does 
 not pass to those who are the infant's privies in estate.^ If the 
 infant becomes insane, his right to avoid his contracts passes to 
 his guardian or conservator ; ° and, by the weight of authority, on 
 his death, the right passes to his heirs ^ or his personal representa- 
 
 98Keane r. Boycott, 2 H. Bl. 511; Nightingale v. Withington, 15 Mass. 
 272, 8 Am. Dec. 101; Riley v. Dillon & Pennell, 148 Ala. 283, 41 South. 768; 
 Chapman v. Duffy, 20 Colo. App. 471, 79 Pac. 746 ; Hill v. Weil, 202 Ala. 400, 
 80 South. 586; Crosby v. Ardoin (Tex. Civ. App.) 145 S. W. 709: Wright 
 V. Buchanan, 287 111. 468, 123 N. E. 53 ; Smoot v. Ryan, 187 Ala. 396, 65 South. 
 828 ; Latrobe v. Dietrich, 114 Md. 8, 78 Atl. 983. 
 
 9 9 Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101. 
 
 1 ICeane v. Boycott, 2 H. Bl. 511. 
 
 2 Whittingham's Case, 8 Coke, 43 ; Riley v. Dillon & Pennell, 148 Ala. 288, 
 41 South. 768; Austin v. Trustees, 8 Mete. (Mass.) 196, 203, 41 Am. Dec. 497; 
 Mansfield v. Gordon, 144 Mass. 168, 10 N. E. 773 ; Hill v. Weil, 202 Ala. 400, 
 80 South. 536 ; Levering v. Heighe, 2 Md. Oh. 81 ; Breckenridge's Heirs v. 
 Ormsby, 1 J. J. Marsh. (Ky.) 236, 19 Am. Dec. 71 ; Tyler, Inf. § 19. 
 
 3 Mansfield v. Gordon, 144 Mass. 168, 10 N. E. 773. 
 
 * Jackson v. Burchin, 14 Johns. (N. T.) 124 ; Beeler's Heii-s v. Bullitt's 
 Heirs, 3 A. K. Marsh. (Ky.) 280, 13 Am. Dec. 161. See Breckenridge's Heirs 
 T. Ormsby, 1 J. J. Marsh. (Ky.) 236, 19 Am. Dec. 71, for discussion of this ques- 
 tion, and Ewell, Lead. Cas. 90, for collection of authorities. 
 
 5 Whittingham's Case, 8 Coke, 43 ; Austin v. Trustees, 8 Mete. (Mass.) 
 196, 41 Am. Dec. 497 ; Hoyle v. Stowe, 19 N. O. 320 ; Harris v. Koss, 112 Ind. 
 314, 13 N. E. 873 ; Singer Mfg. Co. v. Lamb, 81 Mo. 221 ; Levering v. Heighe 
 2 Md. Ch. 81. 
 
 e Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117. 
 
 .1 Bac. Abr. "Infancy and Age" (I) 6; Tyler, Inf. § 19; IlUnols Land & Loan 
 
§§ 210-211) CONTRACTS OF INFANTS 497 
 
 tives.* The reason of the rule extends only to them, it has been 
 said, because the privilege is conferred for the sole benefit of the 
 infant. While living, he should be the exclusive judge of that 
 benefit; and, when he is dead, those alone should interfere who 
 legally represent him. If his contracts could be avoided by third 
 persons, the principle would operate, not for his, but for their, bene- 
 fit ; not when he chose to avail himself of his privileges, but when 
 strangers elected to do it. 
 
 The other party to the contract, if he is not under any disability 
 himself, cannot avoid it, either on the ground of the other's infancy, 
 or on the ground that there" is no mutuality." He is bound if the in- 
 fant chooses to hold him. A court of equity, however, will not 
 grant an infant specific performance of the contract by the adult, for 
 it does not exercise its power to compel specific performance, un- 
 less there is mutuality of remedy.^" What has been said above ap- 
 plies, of course, only to the voidable contracts of infants. A con- 
 tract which is held to be void is an absolute nullity, and may be 
 attacked by any one. 
 
 SAME— WHAT CONSTITUTES RATIFICATION 
 
 210. In some jurisdictions, by statute, ratification of a contract by 
 
 an infant must be in writing. In the absence of such a 
 provision, ratification may be by an express new promise, 
 either written or oral, or, by the weight of authority, it 
 may be implied from declarations or conduct showing an 
 intention to adopt the contract as binding. 
 
 211. By the weight of authority, the promise must be made or the 
 
 acts done by the infant with knowledge of his legal right 
 to avoid the contract. 
 
 Co. v. Bonner, 75 111. 315 ; Levering v. Heighe, 2 Md. Ch. 81 ; HARVEY v. 
 BRIGGS, 68 Miss. 60, 8 South. 274, 10 L. R. A. 62, Cooley Gas. Persons and 
 Domestic Relations, 270 ; Blake v. HoUandsworth, 71 W. Va. 387, 76 S. E. 8l4, 
 43 L. R. A. (N. S.) 714; Veal v. Fortson, 57 Tex. 482. 
 
 8 Tyler,. Inf. § 16; Ewell, Lead. Gas. 90, with collection of cases. 
 
 9 Bac. Abr. "Infancy and Age" (I) 4 ; 2 Kent. Gomm. 236. See, also, Wright 
 V. Buchanan, 287 111. 468, 123 N. E. 53 ; Youngblood v. Hoeffle (Tex. Civ. App.) 
 201 S. W. 1057. 
 
 10 Flight V. Bolland, 4 Russ. 298. And see Watson v. Ruderman, 79 Com. 
 687, 66 Atl. 515. 
 
 TIIT.P.& D.Rel.(3d Ed.)— 32 
 
498 ' INFANTS (Ch. 14 
 
 In some jurisdictions it has been expressly provided by statute 
 tliat, except in certain cases, no action shall be maintained on any 
 contract made by an infant, unless he, or some person lawfully au- 
 thorized, shall have ratified it in writing after he attained his ma- 
 jority. '^^ 
 
 In the absence of such a provision as this — and it exists in very 
 few jurisdictions — there need be no writing at all to constitute a 
 ratification' of a contract made by an infant. Ratification may be 
 , by words or by acts. As to the sufficiency of particular words or 
 acts to constitute a ratification, the authorities are not ag'i^ed. On 
 the contrary, there is an irreconcilable conflict in the decisions, and 
 what would be sufficient in one state might not be so in another. 
 The importance of this branch of our subject, and the uncertainty 
 in the decisions, require that it be considered at some length. The 
 authorities seem to agree that there must be a new promise by the 
 infant after he attains his majority.^^ They also seem to agree, 
 however, that there need not be an express promise, but that the 
 promise may be implied from his declarations or his conduct, just 
 as an original promise may be implied from words or conduct. The 
 conflict in the cases is as to the inference to be drawn from particu- 
 lar acts or declarations. 
 
 Many of the courts hold that a mere acknowledgment of the con- 
 tract or debt, whether by words or by acts, as by a part payment, 
 which would be sufficient to revive a debt barred by the statute of 
 limitations, will not constitute a ratification, but that there must be 
 a new promise.^' It was said by the Massachusetts court: "By 
 
 11 It was so provided by the English statute (St. 9 Geo. IV, c. 14, § 5) known 
 as "Lord Tenderden's Act." This statute has" been repealed by St. 38 & 39 
 Vict. c. 66. There are similar provisions in a few of our states. See Thur- 
 low V. Gilmore, 40 Me. 378; Lamkin & Poster v. Le Doux, 101 Me. 581, 64 Atl. 
 1048, 8 L. K. A. (N. S.) 104; Exchange Bank of Ft. Valley v. McMillan, 76 S. 
 O. 561, 57 S. E. 630. And see Barnes v. American Soda Fountain Co., 32 Okl. 
 81, 121 Pac. 250 ; Steele v. Poe, 79 S. C. 407, 60 S. E. 951. 
 
 12 But there need not be a new consideration. Bill v. Buckhalter, 176 Ala. 
 62, 57 South. 460 ; Edmunds v., Mister, 58 Miss. 765. 
 
 13 Edmunds v. Mister, 58 Miss. 765 ; Whitney v. Dutch, 14 Mass. 457, 7 Am. 
 Dec. 229 ; Smith v. Mayo, 9 Mass. 62, 6 Am. Dec. 28 ; Thnipp v. Fielder, 2. Esp. 
 628; Proctor v. Sears, 4 Allen (Mass.) 95; Hale v. Gerrish, 8 N. H. 374; Tib- 
 bets V. Gerrish, 25 N. H. 41, 57 Am. Dec. 307 ; Wilcox v. Eoath, 12 Conn. 550 ; 
 Catlin V. Haddox, 49 Conn. 492, 44 Am. Rep. 249; Stokes v. Brown, 3 Pin. 
 (Wis.) 311 ; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245; Fetrow v. Wiseman, 
 40 Ind. 148. In Edmunds v. Mister, supra, it was said that executory con- 
 tracts of infants "can be ratified at common law only by an act or agreement 
 
§§ 210-211) CONTRACTS OP INFANTS 499 
 
 the authorities, a mere acknowledgment of the debt, such as would 
 take a case out of the statute of limitations, is not a ratification of 
 a contract made during minority. The distinction is undoubtedly 
 well taken. The reason is that a mere acknowledgment avoids the 
 presumption of payment which is created by the statute of limita- 
 tions ; whereas the contract of an infant may always, except in cer- 
 tain cases sufficiently known, be voided by him by plea, whether 
 he acknowledges the debt or not; and some positive act or decla- 
 ration on his part is necessary to defeat his power of avoiding 
 it." ^* This rule is clearly right if it is intended to hold that a mere 
 acknowledgment that the contract was made by the infant is not 
 a ratification; but it is not sound if it is intended to hold that an 
 infant does not ratify his contract by acknowledging, after he has 
 attained his majority, that it is then binding upon him. This is a 
 ratification.^" By the great weight of opinion, the question is, in 
 all cases, whether the words or acts of the infant after he has at- 
 tained his majority show an intention on his part to adopt the 
 contract as binding upon him, and, if they do show such an in- 
 tention, a new promise^ or ratification is to be implied.^^ As was 
 said by the Vermont court in a late case : "Where the declarations 
 or acts of the individual after becoming of age fairly and justly 
 lead to the inference that he intended to, and did, recognize and 
 adopt as binding an agreement executory on his part, made during 
 
 \vlilch possesses all the ingredients necessary to a new contract, save only a 
 new consideration. The contract made during minority will furnish the con- 
 sideration, but it will furnish nothing more. All else must be supplied by, 
 the new agreement. A mere acknowledgment of the debt is not sufficient, but 
 there must be an express promise to pay, voluntarily made." 
 
 1* Whitney v. Dutch, 14 Mass. 457, 7 Am. Dec. 229. 
 
 IB Henry v. Root, 33 N. Y. 526; American Mortg. Co. of Scotland v. Wright, 
 101 Ala. 658, 14 South. 399 ; Little v. Duncan, 9 Rich. (S. C.) 55, 64 Am. Dec. 
 760. A declaration by the promisor, after attaining his majority, that he 
 would not take advantage of his infancy, is not effective as a ratification, if 
 made after action on the contract has been begun. Merriam v. Wilkins, 6 N. 
 H. 432, 25 Am. Dec. 472. 
 
 18 HATCH v. HATCH'S ESTATE, 60 Vt. 160, 13 Atl. 791, Cooley Cas. Per- 
 sons and Domestic Relations, 271 ; Tobey v. Wood, 123; Mass. 88, 25 Am. Rep. 
 27 ; Harris v. Wall, 1 Bxch. 130 ; Henry v. Root, 33 N. Y. 526 ; Middleton v. 
 Hoge, 5 Bush (Ky.) 478; 'Baker v. Kennett, 54 Mo. 88; Kendrick v. Neisz, 17 
 Colo. 506, 30 Pac. 245; Wheaton v. East, 5 Yerg. (Tenn.) 41, 62, 26 Am. Dec. 
 251 ; Hale v. Gerrish, 8 N. H. 374 ; Emmons v. Murray, 16 N. H. 385 ; Drake 
 v. Wise, 36 Iowa, 476 ; Tnomasson v. Boyd, 13 Ala. 419. A qualified promise, 
 depending on a contingency, is not sufficient. Edgerly v. Shaw, 25 N. H. 514, 
 57 Am. Dec. 349; Proctor v. Sears, 4 Allen (Mass.) 95. 
 
500 INFANTS ' (Ch. 14 
 
 infancy, and intended to pay the debt then incurred, we think it is 
 sufficient to constitute ratification, provided the declarations were 
 freely and understandingly-made, or the acts in like manner per- 
 formed, and with knowledge that he was not legally liable." ^' So, 
 in a late Massachusetts case, it was said: "Ratification may be 
 shown either by proof of an express promise to pay the debt, made 
 by the infant after he became of age, or by proof of such acts of the 
 infant, after he became of age, as fairly and justly lead to the infer- 
 ence that he intended to ratify the contract, and pay the debt." ^* 
 And in an English case it was said : "Any act or declaration which 
 recognizes the existence of the promise as binding is a ratification 
 of it." " 
 
 To illustrate: It has been held, and very properly, that a mort- 
 gage given by an infant is ratified by payment of the interest cou- 
 pon notes after becoming of age,^" and that giving a watch in part 
 payment of a note executed during minority is a ratification of the 
 riote.^^ This is clearly a recognition of the contract, not merely as 
 having been made, but as binding. So, it has been held that bring- 
 ing a suit to enforce payment of a note is a ratification of the con- 
 tract in which the note was given. ^^ 
 
 The cases are uniform to the effect that, where an infant pur- 
 chases or otherwise acquires property under a contract, he ratifies 
 the contract if he retains and uses the property after h" becomes 
 of age, or if he disposes of it by sale, mortgage, or otherwise. The 
 reason of this is that he cannot honestly retain or dispose of the 
 property except upon the assumption that the contract by which he 
 acquired it is valid, and therefore such conduct, if unexplained, 
 fairly and justly leads to the inference of a promise or undertaking 
 after becoming of age, to pay for the property.^' The New York 
 
 " HATCH V. HATCH'S ESTATE, 60 Vt. 160, 13 Atl. 791, Cooley Cas. Per- 
 sons and. Domestic Relations, 271. 
 
 18 Tobey v. Wood, 123 Mass. 88, 25 Am. Rep. 27. 
 
 19 Harris v. Wall, 1 Excti. 130. 
 
 20 American Mortg. Co. of Scotland v. Wright, 101 Ala. 658, 14 South. 899. 
 Contra, Rapid Transit Land Co. v. Sanford (Tex. Civ. App.) 24 S. W. 587. 
 
 21 Little T. Duncan, 9 Rich. (S. C.) 55, 64 Am. Dec. 760. 
 
 22 Moi-rill V. Aden, 19 Vt. 505. 
 
 23 Tobey v. Wood, 123 Mass. 89, 25 Am. Rep. 27; Boyden v. Boy den, 9 Mete. 
 (Mass.) 519; Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Smith v. 
 Kelley, 13 Mete. (Mass.) 309; Aldrich v. Grimes, 10 N. H. 194; Robbins v. 
 Baton, 10 N. H. 561 ; Lawson v. Lovejoy, 8 Greenl. (Me.) 405, 23 Am. Dec. 526; 
 Luce V. Jestrab, 12 N. D. 548, 97 N. W. 848; Ward v. Ward, 143 Ky. 91, 136 
 
 ^S. W. 137; Boody v. McKenney, 23 Me. 517; HATCH v. HATCH'S ESTATE, 
 
^§ 210-211) CONTRACTS OF INFANTS 501 
 
 court even went so far as to hold, in applying this doctrine, that 
 where an infant, who had taken the note of a third person in pay- 
 ment for work, retained the note for eight months after attaining 
 his majority before offering to return it, and in the meantime the 
 maker of the note became insolvent, such retention of the note 
 was a ratification of the contract under which it was taken. ^* 
 
 Acquiescence after majority, if for an unreasonable time, is held 
 in some jurisdictions to amount to a ratification of certain con- 
 tracts requiring disaffirmance; ^° but, in the case of executory con- 
 tracts, mere silence or acquiescence, unaccompanied by acts in- 
 dicating an intention to abide by the contract, will not amount to 
 a ratification.'* While in some jurisdictions mere acquiescence is 
 not evidence of the affirmance of an infant's deed,'' yet, where this 
 is accompanied by other circumstances indicating a clear intention 
 
 60 Vt. 160, 13 Atl. 791, Cooley Cas. Persons and Domestic Relations, 2T1 ; Rob- 
 inson V. Hoskins, 14 Bush (Ky.) 393: Cheshire v. Barrett, 4 McCord (S. 0.) 
 241, 17 Am. Dec. 735. If the retention, use, or disposal of the property is not 
 inconsistent with the repudiation of the contract, there is no ratification. 
 Todd V. Clapp, 118 Mass. 495 ; Tobey v. Wood, 123 Mass. 88, 25 Am. Rep. 27 ; 
 House V. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189. Thus, reten- 
 tion of the property, after tendering it and being met by a refusal, is not to be 
 construed as a ratification. House v. Alexander, supra. But see Fried v. 
 Overland Motor Co., 202 111. App. 203, holding that one who purchases an auto- 
 mobile during his minority and uses it for nearly a month after he becomes of 
 age before he tenders it to the seller, and continues to retain possession of it 
 and use it for nearly a year after arriving at legal age and after refusal of the 
 seller to accept the machine, must be deemed to have ratified the purchase. 
 Where an infant gave a note and mortgage to secure the purchase price of 
 land conveyed to him, his retention of the land under claim of ownership after 
 majority is a ratification of the transaction. Callls v. Day, 88 Wis. 643. See, 
 also, Uy Soo Lim v. Tan Unchuan, 38 Phil. Rep. 552, holding that the right of 
 a minor to rescind, upon attaining his majority, a contract entered into dur- 
 ing his minority is subject to the conditions (1) that the election to rescind 
 must be made within a reasonable time after majority and (2) that all of 
 the consideration which was in the minor's possession upon his reaching 
 majority must be returned. The disposal of any part of the consideration 
 after the attainment of majority imports an affirmance of the contract. - 
 
 ■^t Delano v. Blake, 11 Wend. (N. Y.) 85, 25 Am. Dec. 617. And see Thomas- 
 son V. Boyd, 13 Ala. 419. 
 
 25 Ante, p. 494. ^ 
 
 26 Durfee v. Abbott, 61 Mich. 471, 28 N. W. 521 ; Tyler v. Gallop's Estate, 
 68 Mich. 185, 35 N. W. 902, 13 Am. St.' Rep. 336 ; Tobey v. Wood, 123 Mass. 88, 
 25 Am. Rep. 27; Watson v. Peebles, 102 Miss. 725, 59 South. 881; International 
 Text-Book Co. v. Connelly, 206 N. Y. 188, 99 N. E. 722, 42 L. R. A. (N. S.) 1115, 
 affirming 140 App. Div. 939, 125 N. T. Supp. 1125. 
 
 2' Syck V. Hellier, 140 Ky. 388, 131 S. W. 30. Apd see ante, p. 494. 
 
502 INFANTS (Ch. 14 
 
 to affirm, the deed cannot thereafter be disaffirmed.^' Thus, a 
 person who has conveyed land during minority loses his right to 
 disaffirm if he stands by and sees his grantee make extensive im- 
 provements on the land,^° or if he rents the land from his grantee.^" 
 When an infant gives a lease of lands, and, after majority, accepts 
 rent, this will amount to a ratification of the lease,^^ and acceptance 
 after majority of the proceeds of a §ale of real estate is a ratifica- 
 tion of the conveyance.'^ If an infant purchases or exchanges land, 
 and remains in possession after majority, this will constitute an 
 affirmance of the contract."' Likewise, the sale after majority of 
 
 28 1 Pars. Cont. 323 ; Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345 ; Irvine v. 
 Irvine, 9 Wall. 617, 19 L. Ed. 800. A deed by a married v?oman, not properly 
 executed, and with no probate, or privy exapination taken, was no ratifica- 
 tion of a prior deed executed by ber wbile a minor. Gaskins v. Allen, 137 N. 
 C. 426, 49 S. B. 919. 
 
 a« , Wallace's Lessee v. Lewis, 4 Har. (Del.) 75 ; Wheaton v. East, 5 Yerg. 
 (Tenn.) 41, 62, 26 Am. Dec. 251 ; Davis v. Dudley, 70 Me. 236, 35 Am. Eep. 318; 
 Hartman v. Kendall, 4 Inii. 403; Henson v. Gulp, 157 Ky. 442, 163 S. W. 455; 
 Dolph V. Hand, 156 Pa. 91, 27 Atl. 114, 36 Am. St. Kep. 25. But see Brantley 
 V. Wolf, 60 Miss. 420. ' 
 
 30 Ingram v. Ison, 80 S. W. 787, 26 Ky. Law Kep. 48. 
 
 siAshfield v. Asbfleld, W. Jones, 157; Paramour v. Tardley, Plowd. 539, 
 545a; Wimberly v. Jones, Ga. Dec. 91, pt. 1. 
 
 82 Darraugh v. Blackford, 84 Va. 509, 5 S. E. 542; DAMRON v. RATLIFF, 
 123 Ky. 758, 97 S. W. 401, Cooley Gas. Persons and Domestic Relations, 274 ; 
 Kinard v. Proctor, 68 S. C. 279, 47 S. E. 390 ; Pursley v. Hays, 17 Iowa, 310 ; 
 Glark v. Kidd, 148 Ky. 479, 146 S. W. 1097 ; La Cotts v. Quertermous, 84 Ark. 
 610, 107 S. W. 167 ; Davidson v. Young, 38 111. 145 ; Ferguson v. Bell's Adm'r, 
 17 Mo. 347. An olter to give a confirmatory deed on payment of tbe balance of 
 the purchase money is not an affirmance. CRAIG v. VAN BEBBER, 100 Mo. 
 584, 13 S. W. 906, 18 Am. St. Rep. 569, Cooley Cas. Persons and Domestic Rela- 
 tions, 278. Where both children of deceased were minors, acceptance by them 
 of part of proceeds of illegal sale by administrator of their deceased father's 
 leasehold did not constitute ratification of such sale. Orchard v. Wright-Dal- 
 ton-Bell-Anchor Store Co. (Mo.) 197 S. W; 42. Payments in accordance with 
 the terms of a contract are not a ratification, if it appears they were made 
 out of payor's county and not in recognition of any legal obligation. Parsons 
 V. Teller, 188 N. Y. 318, 80 N. E. 930, reversing 111 App. Div. 637, 97 N. Y. 
 Supp. 808. 
 
 S3 Go. Litt 2b ; Cecil v. Salisbury, 2 Vern. 225; Henry v. Root, 33 N. Y. 526 
 Hubbard v. Cummlngs, 1 Greenl. (Me.) 11; Robbins v. Eaton, 10 N. H. 561 
 Cheshire v. Barrett, 4 McCord (S. G.) 241, 17 Am. Dec. 735; Ellis v. Alford, 
 64 Miss. 8, 1 South. 155; Ihley v. Padgett, 27 S. C. 300, 3 S. E. 468; Buchan- 
 an V. Hubbard, 119 Ind. 187, 21 N. B. 53& Where the infant, after arriving 
 ' at majority, with full knowledge of all facts relating to exchange of his land 
 for other land, mortgaged that received in exchange, transaction was ratified. 
 Perkins v. Middleton (Okl.) 166 Pac. 1104. 
 
|§ 210-211) CONTRACTS OP INFANTS 503 
 
 land purchased by an infant/* or its continued use and occupa- 
 tion,^" is a ratification of a mortgage given to secure the purchase 
 xnbney ; and this is true although the mortgage is given to a third 
 person, provided the conveyance and mortgage are made at, the 
 same time, so as to constitute one transaction.^" If an infant 
 makes a mortgage, and after majority conveys the land, stating 
 that the conveyance is made subject to the mortgage, this recital 
 is a confirmation of the mortgage.^' 
 
 Mere failure of an infant, on attaining his majority, to: disaffirm 
 a partnership agreement entered into during his minority, without 
 any acts as a partner, will not constitute a ratification of contracts 
 entered into by the firm ; but a failure to disaffirm, followed by acts 
 as a partner, may. The cases are at variance as to what acts will 
 amount to such a ratification. It has been held that transaction of 
 the firm business after majority, payment of firm debts, and partic- 
 ipation in the profits, is not sufficient; '* but there are cases to the 
 contrary." 
 
 84 Uecker v. Koehn, 21 Neb. 559, 32 N. W. 583, 59 Am. Rep. 849 ; Hubbard 
 V. Cummings, 1 Greenl. (Me.) 11; Young v. McKee, 13 Mich. 552; Lynde v. 
 Budd, 2 Paige (N. Y.) 191, 21 Am. Dec. 84. A minor's contract to deed to her 
 mother lauds received from her mother in a divorce settlement is voidable, 
 and is ratified by the daughter deeding such property to her mother after be- 
 coming of age. Haldeman v. Weelcs, 90 Or. 201, 175 Pac. 445. 
 
 3B Robbins v. Eaton, 10 N. H. 561; Callis v. Day, 38 Wis. 643; Gulf, O. & S. 
 F. Ry. Co. V. Lemons (Tex.) 206 S. W. 75, 5 A. L. R. 943; Hubbard v. Cummings, 
 1 Greenl. (Me.) 11. When an infant took a deed of land, and gave back a 
 purchase-money mortgage, which was Subsequently foreclosed, by bringing 
 ejectment against the purchaser, she was held to have confirmed the mort- 
 gage. Kennedy v. Baker, 159 Pa. 146, 28 Atl. 252; Bigelow v. Kinney, 3 Vt. 
 353, 21 Am. Dec. 589. 
 
 36 Dana v. Coombs, 6 Greenl. (Me.) 89, 19 Am. Dec. 194; Heath v. West, 28 
 N. H. 101. When the conveyance and mortgage are not one transaction, then 
 it is no such ratification. Robbins v. Eaton, 10 N. H. 561. 
 
 37 Boston Bank v. Chamberlin, 15 Mass. 220; Phillips v. Green, 5 T. B. 
 Mon. (Ky.) 344; Dosey v. Bond, 94 Ind. 67; Allen v. Poole, 54 Miss. 323. A re- 
 cital in a mortgage made after majority, that the property is subject to a 
 prior mortgage, is a ratification of such prior mortgage. Ward v. Anderson, 
 111 N. C. 115, 15 S. E. 933. See, also, Allen v. Anderson & Anderson (Tex. 
 Civ. App.) 96 S. W. 54, holding that where an infant conveyed land which by 
 mesne copveyances passed to a third person as a remote grantee, and on at- 
 taining majority, conveyed the land for a valuable consideration to such third 
 person, the conveyance, did not ratify the former deed, but vested in the third 
 person the infant's title. ' 
 
 88 Minock v. Shortridge, 21 Mich. 304 ; Martin v. Tobin, 123 Mass. 85. 
 8 Miller v. Sims, 2 Hill (S. C.) 479; SaUnas v, Bennett, 33 S. C. 285, 11 S. 
 E. 968. 
 
504 INFANTS (Ch. 14 
 
 The acts relied upon as constituting a ratification must be un- 
 equivocal, and must reasonably lead to the inference that there was 
 an intention to adopt and be bound by the contract. Unless they 
 show such an intention, ratification cannot be implied.*" Thus,, 
 where an infant becomes a member of a firm, his remaining in the 
 firm after becoming of age, and sharing in the profits, is not a rati- 
 fication of debts contracted by the firm during his minority, of 
 which he is ignorant,*^ or which he thinks have been paid.*^ 
 • A new promise to a stranger is not sufficient to constitute a rati- 
 fication; it must be made to the other party or to his agent.*^ If 
 the promise is conditional, as in the case of a promise to pay when 
 able, no action can be maintained without showing performance or 
 happening of the condition.** 
 
 In an early English case it was said, in effect, that a person will 
 not be bound by a ratification of his contract made during infancy,, 
 unless he knows that he not liable in law.*° This proposition 
 was mere dictum,*' but it has frequently been appiroved, and there 
 are many decisions supporting it.*' There are some cases, how- 
 
 40 Todd V. Clapp, 118 Mass. 495; Tobey v. "Wodd, 12.3 Mass. 88, 25 Am. Kep. 
 27: House v. Alexander. 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189; Crabtree 
 V. May, 1 B. Mon. (Ky.) 289 ; Fletcher v. A. W. Koch Co. (Tex. Civ. App.) 189 S. 
 W. 501 ; Grolier Soc. of London v. Forshay (Sup.) 157 N. Y. Supp. 776 ; Coe v. 
 Moon, 260 111. 76, 102 N. E. 1074 ; Hobbs v. Hlnton Foundry Machine & Plumb- 
 ing Co., 74 W. Va. 443, 82 S. B. 267, Ann. Cas. 1917D, 410; Martin v. Tobin, 
 123 Mass. 85; Parsons v. Teller, 188 N. Y. 818, 80 N. E. 930, reversing 111 App. 
 Div. 637, 97 N. X. Supp. 808. Where a minor after becoming of age does any 
 act clearly shovring an intention to affirm a contract made by him during hia 
 minority, he cannot afterwards repudiate it. Fried v. Overland Motor Co.,. 
 202 111. App. 203. 
 
 *i Crabtree v. May, 1 B. Mon. (Ky.) 289. 
 
 42 Tobey v. Wood, 123 Mass. 88, 25 Am. Rep. 27. 
 
 43Bigelow V. Grannia, 2 Hill (N. Y.) 120; Goodsell v. Myers, 3 Wend. (N. 
 Y.) 479. 
 
 4* Everson v. Carpenter, 17 Wend. (N. Y.) 419 ; Thompson v. Lay, 4 Pick. 
 (Mass.) 48, 16 Am. Dec. 325 ; Kendrick v. Neisz, 17 Colo. 506, 30 Pac. 245. 
 
 45 Harmer v. Killing, 5 Esp. 102. 
 
 40 Morse v. Wheeler, 4 Allen (Mass.) 570. 
 
 4T Hinely v. Margaritz, 3 Pa. 428; Curtin v. Patton, 11 Serg. & R. (Pa.) 305; 
 Trader v. Lowe, 45 Md. 1; Davidson v. Young, 38 111. 145; Turner v. Gaither, 
 83 N. C. 357, 35 Am. Rep. 574; Thing v. Libbey, 16 Me. 55; Burdett v. Wul 
 liams (D. C.) 30 Fed. 697; Reed v. Boshears, 4 Sneed (Tenn.) 118; Norris v. 
 Vance, 3 Rich. (S. C.) 164; Fletcher v. A. W. Koch Co. (Tex. Civ. App.) 189 s'. 
 W. 501; Manning v. Gannon, 44 App. D. C. 98; Petty v. Roberts, 7 Bush. (Ky.) 
 410; Smith v. Mayo, 9 Mass. 62, 6 Am. Dec. 28; Ford v. Phillips, 1 Pick. (Mass.) 
 202; Owen v. Long, 112 Mass. 403. A , confirmatory deed given after majority, 
 in ignorance of legal rights, has been set aside in equity. Wilson v. Insur- 
 
§ 212) CONTRACTS OF INFANTS 505 
 
 ever, which hold that such knowledge on the part of the infant is 
 not necessary, on the ground that ignorance of law cannot avail.*' 
 In the absence of evidence to the contrary, the late infant will be 
 presumed to have had knowledge of his legal rights.*" 
 
 SAME— WHAT CONSTITUTES DISAFFIRMANCE 
 
 212. A contract is disaffirmed by any conduct which is inconsistent 
 with the existence of the contract, and shows an intention 
 to repudiate it. 
 
 Disaffirmance of a contract, like ratification, may be implied, and 
 it will generally be implied from any conduct that is clearly incon- 
 sistent with the existence of the contract.^" Where, for instance, 
 a person who has sold or mortgaged land or goods while an infant 
 ■sells, leases, or mortgages the same to another after attaining his 
 majority, this is a disaffirmance of his contract. ^^ The bringing of 
 
 ance Co., 60 Md. 150. But see Morse v. Wheeler, 4 Allen (Mass.) 570; An- 
 derson V. Soward, 40 Ohio St. 325, 48 Am. Kep. 687, and Rubin v. Strandberg, 
 288 111. 64, 122 N. E. 808, 5 A. L. R. 133, where it is shown that, in most of the 
 cases cited as supporting the rule that knowledge of the right to disaflfirm is 
 essential, the holding was not necessary to the decision, and the principle is 
 stated in general language only, not being Involved in the case. 
 
 ■<i8 An43i'son v. Soward, 40 Ohio St. 329, 48 Am. Rep. 687; Clark v. Van 
 Court, 100 Ind. 113, 50 Am. Rep. 774 ; Rubin v. Strandberg, 288 111. 64, 122 N. 
 E. 808, 5 A. L. R. 133; American Mortg. Co. of Scotland v. Wright, 101 Ala. 
 658, 14 South. 399; Ring v. Jamison, 66 Mo. 424 ; Morse v. Wheeler, 4 Allen 
 (Mass.) 570. 
 
 *9Taft V. Sergeant, 18 Barb. (N. Y.) 320; HATCH v. HATCH'S ESTATE, 
 60 Vt. 160, 13 Atl. 791, Cooley Cas. Persons and Domestic Relations, 271. 
 
 sopyne V. Wood, 145 Ma.ss. 558, 14 N. E. 775; Vent v. Osgood, 19 Pick. 
 (Mass.) 572; Whitmarsh v. Hall, 3 Denio (N. Y.) 375; Dallas v. HoUingsworth, 
 3 Ind. 537; Putnal v. Walker, 61 Fla. 720, 55 South. 844^ 36 L. R. A. (N. S.) 33; 
 Hatton V. Bodon Lumber Co., 57 Tex. Civ. App. 478, 123 S. W. 163; Stanhope v. 
 Shamhow, 54 Mont. 360, 170 Pac. 752. An infant, desiring to avoid a contract, 
 must signify his desire and intent to do so, not only by refraining from any 
 act of affirmance, but by performing some positive act of disaffirmance, which 
 is of such character as po clearly show his intention not to be bound by his 
 contract. Casement v. Callaghan, 35 N. D. 27, 159 N. W. 77. There must be, 
 not only act of repudiation, but Intent to repudiate. Strain v. Hinds, 277 111. 
 598, 115 N. E. 563. Where a minor 20 years old executed a note and mortgage 
 payable in one year, and a year after majority refused to sign the note again. 
 It did not constitute a disaffirmance of the note and mortgage. Brown v. 
 Staab, 103 Kan. 611, 176 Pac. 113. 
 
 ai Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345 ; Mustard v. Wohlford's 
 Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209 ; Phillips v. Hoskins, 128 Ky. 371, 
 
506 INFANTS (Ch. 14 
 
 a suit for personal injuries is a sufficient disaffirmance of a pre- 
 viously executed release of his right to sue for such fnjuries.^^ 
 So an infant, by suing for his wages on a quantum meruit, repudi- 
 ates his contract for the services," and an action to set aside an 
 
 108 S. W. 283, 33 Ky. Law Rep. 378; Vallandingham v. Johnson, 85 Ky. 288, 
 3 S. W. 173 ; Corbett v. Spencer, 63 Micli. 731, 30 N. W. 385 ; HATNES v. BEN- 
 NETT, 53 Mich. 15, 18 N. W. 539, Cooley Gas. Persons and Domestic Kelations, 
 276 ; Dawson v. Helmes, 30 Minn. 107, 14 N. W. 462 ; Chapin v. Shafer, 49 N. 
 Y. 407; Phillips v. Hoskins, 128 Ky. 371, 108 S. W. 283; Peterson v. Laik, 24 
 Mo. 541, 69 Am. Dec. 441; Oreslnger v. Welch's Lessee, 15 Ohio, 156, 45 Am. 
 Dec. 565; Pitcher v. Laycock, 7 Ind. 398; McGan v. Marshall, 7 Humph. 
 (Tenn.) 121; Den ex dem Hoyle v. S to we, 19 N. O. 323; Jackson ex dem Wal- 
 lace V. Carpenter, 11 Johns. (N. Y.) 539; Buchanan v. Hubbard, 119 Ind. 187, 
 21 N. E. 538. In some jurisdictions a person is not allowed to convey land 
 which is in the adverse possession of another. Here, therefore, an Infant can- 
 not avoid his deed of land by a second deed, executed while his first grantee 
 or another is in the adverse possession of the land. He must first make an en- 
 try. Harrison v. Adcock, 8 Ga. 68. See Bool v. Mix, 17 Wend. (N. Y.) 133, 31 
 Am. Dec. 285. But see'Cresinger v. Welch's Lessee, 'supra. Where an infant 
 mortgages land, and, after obtaining his majority, conveys the land by war- 
 ranty deed, without excepting the mortgage, the deed is a disaffirmance of 
 the mortgage. Dixon v. Merritt, 21 Minn. 196; Allen v. Poole, 54 Miss. 323.. 
 When the deed executed after the infant is of age is of such a nature that it 
 is not inconsistent with the prior conveyance, there is no disaffirmance. Leit- 
 ensdorfer v. Hempstead, 18 Mo. 269; McGan v. Marshall, supra ; Eagle Fire 
 Ins. Co. V. Lent, 6 Paige (N. T.) 635. Thus, a quitclaim deed has been held not 
 to amount to a disaffirmance of a prior mortgage. Shreeves v. Caldwell, 135 
 Mich. 323, 97 N. W. 764, 106 Am. St. Rep. 396, 3 Ann. Cas. 592 ; Singer Mfg. 
 Co. V. Lamb, 81 Mo. 221, And see Palmer v. Miller, 25 Barb. (N. X.) 399. But 
 see Bagley v. Fletcher, 44 Ark. 153, where a quitclaim deed was held a dis- 
 affirmance of a prior deed. And to the same effect is Beauchamp v. Bertig, 90- 
 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659. Mortgages ratified or executed 
 after one became of age are siiperior to a deed made during his minority, but 
 not ratified until after ratification or execution of such mortgages. Tolor v. 
 Marlon County Lumber Co., 93 S. B. 274, 75 S. B. 545, Ann. Cas. 1914D, 844. 
 At one time disaffirmance of a deed of land was required to be by some act 
 of as high and solemn nature as the deed, and the doctrine has been recog- 
 nized by the Supreme Court of the United States, and by some of the state 
 courts. Pars. Cont. 323 ; Irvine v. Irvine, 9 Wall. 617, 19 L. Ed. 800 ; Tudier 
 y. Morelaad, 10 Pet. 58, 9 L. Bd. 345. By the weight of authority, this sol- 
 emnity is no longer to be regarded as necessary; but it is held that a deed 
 may be effectually avoided or disaffirmed by any acts or declarations disclos- 
 ing an unequivocal intent to repudiate it. HAYNBS v. BENNETT, 53 Mich. 15,. 
 18 N. W. 639, Cooley Cas. Persons and Domestic Relations, 276 (collecting the 
 cases); Singer Mfg. Co. v. Lamb, supra; Tunison v. Chamblin, 88 111. 378. Re- 
 entry with notice of intention to disaffirm, and also a vsfritten notice of dis- 
 ainrmance, have been held sufficient. Green v. Green, 69 N. Y. 553, 25 Am. 
 Rep. 233; Scranton v. Stewart, 52 Ind.. 68. 
 
 52 Arizona Eastern R. Co. v. Carillo, 17 Ariz. 115, 149 Pac. 313. 
 
 5 8 Fisher v. Kissinger, 27 Ohio Cir. Ct. R. 13, 
 
§ 213) CONTRACTS OF INFANTS 507 
 
 oil and gas lease and certain deeds is a disaffirmance.'* An action 
 by a person after becoming of age to recover land or goods sold 
 by him during his minority is a disaffirmance of the sale,"' and a 
 contract is disaffirmed by merely pleading infancy when suit is 
 brought to enforce it. 
 
 SAME— EXTENT OF RATIFICATION OR DIS- 
 AFFIRMANCE 
 
 213. The ratification or disaffirmance must be in toto. The con- 
 tract cannot be ratified or disaffirmed in part only. 
 
 The disaffirmance or ratification must go to the whole contract. 
 An infant cannot ratify a part which he deems for his benefit, and 
 rej)udiate'the rest.^" He cannot, for instance, ratify a lease to him- 
 self, and avoid a covenant in it to pay rent; nor can he hold lands 
 conveyed to him in exchange, and avoid the transfer of those with 
 which he parted ; "^ nor can he hold land conveyed to him, and re- 
 pudiate a mortgage given at the time as part of the same transac- 
 tion to secure the purchase money.°* So, too, an infant cannot sue 
 
 B4 Ryan V. Morrison, 40 Okl. 49, 135 Pac. 1049. 
 
 66 Clark V. Tate, 7 Mont. 171, 14 Pac. 761 ; CRAIG v. VAN BEBBER, 100 
 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 569, Cooley Cas. Persons and Domestic 
 Relations, 278; Parrish v. Treadway, 267 Mo. 91, 183 S. "W. 580; Slater v. 
 Rudderforth, 25 App. D. C. 497 (holding that a suit for cancellation of the 
 conveyance is a sulBcient disaffirmance) ; Philips v. Green, 3 A. K. Marsh. 
 (Ky.) 7, 13 Am. Dee. 124; Stotts v. Leonhard, 40 Mo. App. 336; Scott v. 
 Buchanan, 11 Humph. (Tenn.) 469; Hughes v. Watson, 10 Ohio, 134. It is 
 not necessary to go into equity, but he may bring ejectment. Conn v. Bout- 
 well, 101 Miss. 353, 58 South. 105. Where, however, the action is based on the 
 assumption that defendant is wrongfully in possession, as in the case of eject- 
 ment, the weight of authority seems to require that there shall have been some 
 previous act of disaffirmance on the part of the infant, for until disaffirmance 
 the defendant is rightfully In possession. See Law v. Long, 41 Ind. 586; 
 McClanahan v. Williams, 136 Ind. 30, 35 N. E. 897 ; Bool v. Mix, 17 Wend. 
 (N. Y.) 135, 31 Am. Dec. 285; Tomczek v. Wieser, 58 Misc. Rep. 46, 108 N. 
 T. Supp. 784; , Clawson v. Doe, 5 Blackf. (Ind.) 300; Wallace's Lessee v. 
 Lewis, 4 Har. (Del.) 75. 
 
 = 6 Badger v. Phlnney, 15 Mass. 359, 8 Am. Dec. 105; Pecararo v. Pecararo 
 <Sup.) 84 N. T. Supp. 581; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 589; 
 Lowry v. Drake's Heirs, 1 Dana (Ky.) 46. 
 
 5 7 Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538. 
 
 6 8 Hubbard v. Cummings, 1 Greenl. (Me.) 11; Uecker v. Koehn, 21 Neb. 559, 
 32 N. W. 583, 59 Am. Rep. 849; Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 
 589; Heath v. West, 28 N. H. 108; Young v. McKee, 13 Mich. 556; Skinner 
 
508 INFANTS ' ' ■ (Ch. 14 
 
 for damages or statutory penalties for the negligent transmission 
 of a telegraph message, without complying with a stipulation ■ of 
 the contract as to the time when claims must be presented." ° 
 
 SAME— RETURN OF CONSIDERATION 
 
 214. An infant may disaffirm his executory contract without first 
 
 returning the consideration received by him; but, after 
 disaffirmance, he must return thei consideration, if he 
 has it. 
 
 215. As a rule, if the contract has been executed by him, he can- 
 
 not avoid it, and recover what he has paid, or for what he 
 has done, without returning the consideration, if he has it. 
 But it is otherwise, by the weight of authority, if he has 
 squandered or otherwise disposed of the consideration 
 during his minority. However — 
 
 EXCEPTIONS— (a) Though he has the consideration, he may 
 effectually disaffirm his executed contract, without first 
 returning it, if he does not seek relief from the courts, as, 
 for instance, where he disaffirms his conveyance of land 
 by conveying to another. 
 
 (b) Some coiurts hold that an infant cannot recover what he has 
 paid, or for what he has done, under a contract by which he 
 has received a substantial benefit, unless he can and does 
 place the other party in statu quo. This probably does 
 not apply to his conveyances of land. 
 
 Since a person cannot disaffirm in part only a contract made by 
 him during infancy, but must disaffirm in toto, if at all, it is a gen- 
 eral rule that, on disaffirming a contract, the party must return 
 the consideration which he has received.'^'' Whether or not he 
 
 V. Maxwell, 66 N. C. 45; Cogley v. Cushman, 16 Minn. 402 (Gil. 3341 ; Callis 
 V. Day, 38 Wis. 643. 
 
 6 9 Western Union Telegrapb Co. v. Greer, 115 Tenn. 368, 89 S. W. 327 1 
 L. ±1. A. (N. S.) 525. 
 
 60 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Bigelow v. Kinney, 
 3 Vt. 353, 21 Am. Dec. 589 ; Wilhelm v. Harrfman, 13 Md. 140 ; Mustard v. 
 Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Combs v. Hawes (Cal.) 
 8 Pac. 597 ; Kitchen" v. Lee, 11 Paige (N. Y.) 107, 42 Am. Dec. 101 ; Bartlett 
 V. Cowles, 15 Gray (Mass.) 446. Especially is this true, if the infant has been 
 guilty of any fraud in the procuring of the contract. Ackennan v. Hawkins, 
 45 Ind. App. 483, 88 N. E. 616 ; International Land Co. v. Marshall, 22 OkL 
 
§§ 214-215) CONTRACTS OF INFANTS 501> 
 
 must do so as a condition precedent to disaffirmance, or whether 
 the other party must be left to his action to recover the considera- 
 tion after disaffirmance, and whether or not the consideration or 
 an equivalent must be returned where it has been wasted or other- 
 wise disposed of, are questions upon which the decisions are con- 
 flicting. 
 
 As has already been seen, if a person who, during his minority, 
 has received the consideration for his contract, has the considera- 
 tion in kind when he attains his majority, and afterwards disposes 
 of it, either by consuming it himself, or by selling it, or otherwise 
 putting it beyond his control, or if he retains it for an unreasonable 
 time without seeking to avoid the contract, he thereby ratifies the 
 contract ; and this applies whether the contract is executed or exec- 
 utory on his part.°^ 
 
 Where the contract is executory on the part of the infant, and 
 he has not ratified it by his conduct, it cannot, according to the 
 weight of authority, be enforced against him, even though he has 
 the consideration received by him in kind. He need not return the 
 consideration as a condition precedent to repudiating the contract, 
 and pleading his infancy in an action brought against him to en- 
 force it."^ When he repudiates the contract, however, he no longer 
 has any right to the consideration he has received; and, if he still 
 
 693, 98 Pac. 951, 19 L. R. A. (N. S.) 1056. And see Smith v. Cole, 148 Ky. 138, 
 146 S. W. 30. 
 
 «iAnte, p. 497. Of course, if through no fault on his' part, nor conduct 
 amounting to a ratification, consideration which is possessed in kind on at- 
 taining his majority subsequently becomes incapable of return, he will oc- 
 cupy the same position as if this state of things existed when he attained his 
 majority. 
 
 62 Craighead v. Wells, 21 Mo. 409; Shipley v. Smith, 162 Ind. 526, 70 N. B. 
 803 ; White v. Sikes, 129 Ga. 508, 59 S. E. 228, 121 Am. St. Rep. 228 ; Price v. 
 Furman. 27 Vt. 268, 65 Am. Dec. 194; Wallace v. Leroy, 57 W. Va. 263, 50 
 S. Ji. 2-1 100 Am. St. Rep. 777 ; Oneonta Grocery Co. v. Preston (Sup.) 167 
 N. Y. Supp. 641; International Text-Book Co. v. McKone, 133 Wis. 200, 113 
 N. W. 438; Johnson v. Insurance Co., 56 Minn. 365, 59 N. W. 992, 26 L. R. 
 A. 187, 45 Am. St. Rep. 473; Story & Clark Piano Co. v. Davy (Ind. App.) 
 119 N. E. 177. A minor who has entered into a contract to work for a manu- 
 facturing corporation. for six months, and not to leave without giving two 
 weeks' notice, is not liable in damages, to be deducted from his wages, if he 
 leaves without giving such notice. Derocher v. Continental Mills, 58 Me. 
 217, 4 Am. Rep. 286. An infant under the age of 18 years may disaffirm an 
 insurance contract and recover the premiums paid, without restoring or offer- 
 ing to restore the consideration. Tlittner v. Equitable Life Assur. Soc 30 
 Cal. App. 209, 157 Pac. 630. 
 
510 INFANTS (Ch. 14 
 
 has it, the other party may maintain an action to recover it.°^ By 
 the weight of authority, if he has wasted or otherwise disposed of 
 the consideration during his minority, so that he cannot return it 
 in kind, he cannot be held liable for it. The other party is reme- 
 diless.'* It must be borne in mind in this connection that retain- 
 ing the consideration rnay amount to ratification. 
 
 When the contract is executed on the part of the infant, and he 
 has the consideration received by him in kind, it is the almost uni- 
 versal rule that he cannot repudiate the contract, and recover what 
 he has parted with, or for what he has done, unless he returns, or 
 offers to return, the consideration."' Some cases go to the extent 
 
 S3 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105 ; Mustard v. Wohlford's 
 Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209. Where an infant purchased prop- 
 erty under fraudulent representations that he was of age, and failed to pay 
 for it, the seller could recover the property as against attaching creditors of 
 the infant. Wray v. Wrightsman, 139 Mo. App. 635, 124 S. W. 38. 
 
 64 See Brawner v. Franklin, 4 Gill (Md.) 470; Boody v. McKenney, 23 Me. 
 517,525. 
 
 6 6 Price V. Furman, 27 Vt. 268, 65 Am. Dec. 194; Blair v. Whittater, 31 
 Ind. App. 664, 69 N. E. 182 ; In re Huntenberg (D. O.) 153 Fed. 768 ; Zuck v. 
 Turner Harness & Carriage Co., 106 Mo. App. 566, 80 S. W. 967; Millsaps v. 
 Bstes, 137 N. C. 535, 50 S. E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 496 ; Lem- 
 mon V. Beeman, 45 Ohio St. 505, 15 N. E. 476 ; Dickerson v. Gordon, 52 Hun, 
 614, 5 N. Y. Supp. 310 ; HARVEY v. BRIGGS, 68 Miss. 60, 8 South. 274, 10 L. 
 R. A. 62, Cooley Cas. Persons and Domestic Relations, 270; Chandler v. Sim- 
 mons, 97 Mass. 508, 93 Am. Dec. 117 ; Oarr v. Clough, 26 N. H. 280, 59 Am. 
 Dec. 345 ; Robinson v. Weeks, 56 Me. 102 ; Johnson v. Insurance Co., 56 Minn. 
 365, 59 N. W. 992, .26 L. R. A. 187, 45 Am. St. Rep. 473 ; Towle v. Dresser, 73 
 Me. 252 ; ' WULLER v. CHUSE GROCERY CO., 241 111. 398, 89 N. E. 796, 28 L. 
 R. A. (N. S.) 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 522, Cooley Cas. Persons 
 and Domestic Relations, 262; In re Huntenberg (D. C.) 153 Fed. 768; Bell v. 
 Burkhalter, 176 Ala. 62, 57 South. 460 ; Stanhope v. Shambow, 54 Mont. 360, 
 170 Pac. 752 ; Putnal v. Walker, 61 Fla. 720, 55 South'. 844, 36 L. R. A. (N. 
 S.) 33 ; Alfrey v. Colbert, 168 Fed. 231, 93 C. C. A. 517 ; Webb v. Reagin, 160 
 Ala. 537, 49 South. 580; Foy v. Salzano, 152 App. Div. 47, 136 N. Y. Supp. 
 699; Hatton v. Bodan Lumber Co;, 57 Tex. Civ. App. 478, 123 S. W. 163. 
 Under the Oklahoma statute (Comp. Lav7S 1909, § 5037), an infant may dis- 
 affirm a conveyance made by him when under the age of 18 years without 
 returning or offering to return the consideration. Rice v. Anderson, 39 Okl. 
 279, 134 Pac. 1120. But he is not obliged to return consideration when he 
 cannot return in kind. International Text-Book Co. v. Doran, 80 Conn. 307, 
 68 Atl. 255. To the same effect, see Pennsylvania Co. v. Purvis, 128 111. App. 
 367, holding that the acceptance by a minor of a railroad .pass containing 
 an exemption from liability for negligence does not operate to relieve the 
 company from liability for an injury resulting to such minor from the neg- 
 ligence of the company. An actual tender is not required as a condition 
 precedent when it is known in advance that such tender will be refused, but 
 restoration should be made on the trial as a condition of the judgment. Starr 
 
§§ 214-215) CONTRACTS OF INFANTS 511 
 
 of saying without qualification that the return of the consideration 
 in such a case is not a condition precedent to the right to disaf- 
 firm.^" This is so where the disaffirmance by the infant is by deal- 
 ing with the property he has parted with as his own, and where he 
 is not seeking the aid of a court to recover it; as where, having 
 sold land and received the purchase money, he disaffirms by con- 
 veying the land to another. The latter deed Is effectual though 
 he has not returned the consideration for his prior deed."^ But an 
 infant cannot maintain an action to recover what he has parted 
 with, or for what he has done, without returning the consideration, 
 if he has it.°^ 
 
 V. Watkins, 78 Neb. 610, 111 N. W. 363. Where an infant purchases real 
 estate, and disaffirms the contract and restores the property on reaching his 
 majority, the vendor cannot defeat the right to disaffirm by refusing to take 
 back the property. Evarts v. Taylor, 18 N. M*. 371, 137 Pac. 583, 50 L. R. 
 A. (N. S.) 1113. Where an infant borrows money secured by mortgage, for 
 the purpose of discharging a prior mortgage on his land, h^ cannot disaffirm 
 the loan contract and mortgage without returning the money thus acquired. 
 Berry v. Stigall, 253 Mo. 690, 162 S. W. 126, 50 L. R. A. (N. S.) 489, Ann. 
 Cas. 1915C, 118. The rule that the Infant is required to return the consid- 
 eration if it is in his possession is not applicable to a suit by a guardian to 
 recover possession of personal property which his infant ward has sold and 
 delivered. Hughes v. Murphy, 5 Ga. App. 328, 63 S. E. 231. 
 
 06 Born v. Chicago City R. Co., 159 111. App. 585. In an action against the 
 administratrix of the grantor to set aside the deed and cancel a note given 
 for the price of the land, on the ground that plaintiff was a minor when the 
 deed was made to him, a tender of the deed to the persons in whom the title 
 to the land is vested is unnecessary. Forsee's Adm'x v. Forsee, 144 iSy. 169, 
 137 S. W. 836. When an infant has been paid in money, the tender or repay- 
 ment of the money is not a condition precedent to the right to rescind ; but 
 it should be allowed towards infant's claim. Heath v. Stevens, 48 N. H. 251; 
 Sparman v. Keim, 83 N. T. 245. One who elects to disaffirm an executed con- 
 tract on the ground that he was an infant when contract was niade, if he 
 is in position to return the consideration, will be treated in equity as a trustee 
 for the other party and required to restore the same, not as a condition 
 precedent to disaffirmance, but on the ground that he is in possession of 
 property which in equity and good conscience he will not be permitted 
 to retain. Gannon v. Manning, 42 App. D. C. 206. 
 
 7 Chandler v. Simmons, 97 Mass. 508, 93 Am. Dee. 117; Tucker v. More- 
 land, 10 Pet. 58, 78, 9 L. Ed. 345 ; Dawson v. Helmes, 30 Minn. 107, 14 N. W. 
 462; Shaw v. Boyd, 5 Serg. & R. (Pa.) 309, 9 Am. Dec. 368; McCarty v. 
 Woodstock Iroh Co., 92 Ala. 463, 8 South. 417, 12 L. R. A. 136. 
 
 8 Jones V. Valentine's School of Telegraphy, 122 Wis. 318, 99 N. W. 1043. 
 When an infant seeks the aid of a court of equity, to relieve him from lia- 
 bility on his contract, he must do equity, and must restore what he received. 
 Hillyer v. Bennett, 3 Edw. Ch. (N. Y.) 222. But not so, if he has disposed of 
 it while yet a minor. Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314. 
 Where one seeks to rescind an exchange of lands made while he was an in- 
 
512 INFANTS (Ch. 14 
 
 According to the weight of authority, an infant, on attaining 
 his- majority, may disaffirm his contract, whether it is executory or 
 executed, and in the latter case may recover back what he has 
 parted with, or for what he has done, without returning, or offering 
 to return the consideration received by him, if, during his minority, 
 he has squandered or otherwise disposed of it, so that he cannot 
 return it.°' He is not bound to return an equivalent. Some of 
 
 fant, he must quitclaim the land received in exchange. Coe v. Moon, 260 
 111. 76, 102 N. B. 1074. 
 
 «» Gibson v. Soper, 6 Gray (Mass.) 282, 66 Am. Dec. 414; Southern Cotton 
 Oil Co. V. Dukes, 121 Ga. 787, 49 S. E. 788; White v. Sikes, 129 Ga. 508, 59 
 S. E. 228, 121 Am. St. Eep. 228 ; Braucht v. Graves-May Co., 92 Minn. 116, 
 99 N. W. 417 ; BBICKLER v. GCENTHER, 121 Iowa, 419, ^6 N. W. 895, Cool- 
 ey Cas. Persons and Domestic Relations, 256 ; Chandler v. Simmonsi 97 Mass. 
 508, 93 Ajtn. Dec. 117 ; Morse v. Ely, 154 Mass. 458, 28 N. B. 577, 26 Am. St. 
 Rep. 263 ; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194 ; Boody v. McKenney, 
 23 Me. 517 ; Lemmon v. Beeman, 45 Ohio St. 505, 15 N. E. 476 ; Reynolds v. Mc- 
 Curry, 100 111. 356; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 
 Am. Dec. 209 ; Putnal v. Walker, 61 Fla. 720, 55 South. 844, 36 D. R. A. (N. 
 S.) 33; Alfrey v. Colbert, 168 Fed. 231. 93 C. 0. A. 517; Beauchamp v. Bertig, 
 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659 ; WULLBR v. CHUSE GRO- 
 CERY CO., 241 111. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. Rep. 
 216, 16 Ann. Cas. 522, Cooley Cas. Persons and Domestic Relations, 262 ; First 
 Nat. Bank of Titonka v. Casey, 158 Iowa, 349, 138 N. W. 897 ; Lake v. Perry, 95 
 Miss. 550, 49 South. 569; Barr v. Packard Motor Car Co., 172 Mich. 299, 
 137 N. W. 697; Gray v. Grimm, 15T Ky. 603, 163 S. W. 762; Bickle v. 
 Turner, 133 Ark. 536, 202 S. W. 703 ; Walsh v. Toung, 110 Mass. 399 ; Daw- 
 son V. Helmes, 30 Minn. 107, 14 N. W. 462 ; Miller v. Smith, 26 Minn. 248, 2 
 N. W. 942, 37 Am. Rep. 407; Green v. Green, 69 N. Y. 553, £3 Am. Rep. 
 233: Mordecai v. Pearl, 63 Hun, 553, 18 N. Y. Supp. 543; Petrie v. Willimas, 
 68 Hun, 5S9, 23 N. Y. Siipp. 237; Brawner v. Franklin, 4 Gill (Md.) 463; 
 Brandon v. Brown, 106 111. 519 ; CRAIG v. VAN BEBBER, 100 Mo. 584, 13 S. 
 W. 906, 18 Am. St. Rep. 569, Cooley Cas. Persons and Domestic Relations, 278 ; 
 Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206 ; Shirk v. Shultz, 113 Ind. 571, 15 
 N. a. 12 ; HARVEY v. BRIGGS, 68 Miss. 60, 8 South. 274, 10 L. R. A. 62, Cool- 
 ey Cas. Persons and Domestic Relations, 270 ; Englebert v. Troxell, 40 Neb. 
 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. Rep. 665 ; Manning v. John- 
 son, 26 Ala. 446, 62 Am. Dec. 732. It was said in Price v. Furman, 27 Vt. 
 268, 65 Am. Dec. 194: "A distinction is to be observed between the case of an 
 infant in possession of such property after age, and when he has lost, sold, 
 or destroyed the property during his minority. In the former case, if he has 
 put the property out of his power, he has ratified the contract, and rendered 
 it obligatory upon him. In the latter case the property is to be restored if it 
 be in his possession and control. If the property is not in his hands, nor 
 under his "control, that obligation ceases. To say that an infant cannot re- 
 cover back his property which he has parted with under such circumstances, 
 because, by his indiscretion, he has spent, consumed, or injured that which 
 he received, would be making his want of discretion the means of binding 
 him to all his improvident contracts, and deprive him of that protection which 
 the law designed to secure to him." As the contract of an infant is voidable 
 
§§ 214-215) CONTRACTS OF INFANTS 513 
 
 the courts extend this rule to cases in which the infant was even 
 benefited by disposing of the consideration.'^" The principle on 
 which this rule is based is that the privilege of the infant to avoid 
 his contracts is intended to protect him against the improvidence 
 which is incident to Ijis immaturity, and that to require him to re- 
 turn the consideration received and squandered or otherwise dis- 
 posed of during his minority would be to withdraw this protec- 
 tion, and frustrate the object of the law. This rule has been ap- 
 plied, not only where the contract was a sale and conveyance of 
 land by the infant, but to sales of personalty and other contracts 
 as well. 
 
 Many courts, on the other hand, applying the principle that the 
 privilege of an infant is intended as a shield, and not as a sword — 
 or, in other words, as a protection to the infant, and not as. an in- 
 strument of fraud and injustice to others — hold that an infant can- 
 not avoid his executed contracts, whereby he has benefited, and 
 recover what he has parted with, or for what he has done, unless 
 he can and does restore the consideration he has received ; and that 
 it is immaterial that the consideration has been disposed of by him, 
 or for any dther reason cannot be returned. In other words, they 
 hold that an infant who receives a substantial consideration for his 
 executed contract cannot, on attaining his majority, avoid the con- 
 
 and not void, if money paid to an infant on a contract is consumed or wast- 
 ed, he may recover full amount due under contract on attaining majority, 
 bul; if money is used for his benefit and he has the property in which it was 
 invested, he cannot retain property without allowing credit. Chandler v. 
 Jones, 172 N. O. 569, 90 S. B. 580. An infant may disaffirm a release of a 
 claim for personal injury without returning the consideration expended by 
 him. Britton v. South Penn Oil Co., 73 W. Va. 792, 81 S. B. 525. He need not 
 return consideration paid to a parent who joined in the settlement. Turney 
 V. Mobile & O. B. Co., 127 Tenn. 673, 156 S. "W. 1085. The consideration may 
 be considered in mitigation of damages. Born v. Chicago City R. Co., 159 111. 
 App. 585. Where plaintiff, upon becoming of age, was paid his share of 
 money In settlement of litigation, he must, in order to maintain an action to 
 set aside the settlement for fraud, repudiate the settlement and repay the 
 money received. Lefler v. OeU-ichs, 173 App. Div. 759, 160 N. Y. Supp. 119. 
 
 70 It has been held in a late Massachusetts case that a minor who contracts 
 with his employe^ that the price of articles, not necessaries, purchased by 
 him from his employer, shall be deducted from his wages, may, on becoming 
 of age, repudiate his contract, and recover his wages without deduction ; and 
 this, even though he may have disposed of the articles to his benefit. Morse 
 v. Ely, 154 Mass. 458, 28 N. E. 577, 26 Am. St. Rep. 268. And see Genereux 
 V. Sibley, 18 R. I. 43, 25 Atl. 345. 
 
 THT.P.& D.Rel.(3d Ed.)— 33 
 
514 , INFANTS (Ch. 14 
 
 tract, and recover what he has parted with, unless he can and does 
 place the other party in statu quo.'^ 
 
 SAME— EFFECT OF RATIFICATION OR DIS- 
 AFFIRMANCE 
 
 216. Ratification renders the contract absolutely binding ab initio. 
 
 217. Disaffirmance renders the contract absolutely void ab initio. 
 
 Third parties, therefore, can acquire no rights under an 
 avoided contract. 
 
 The effect of ratification is to render the contract binding ab ini- 
 tio.'^ The new promise is not a new contract, but simply a ratifi- 
 
 71 Holmes v. Blogg, 8 Taunt. 508 (but see Corpe v. Overton, 10 Bing. 252) ; 
 Ex parte Taylor, 8 De Gex, M. & G. 254 ; Valentlni v. Canali, 24 Q. B. Div. 
 166 ; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379 ; Succession of 
 Sallier, 115 La. 97, 38- South. 929 ; Breed v. Judd, 1 Gray (Mass.) 455 ; Wil- 
 helm V. Hardman, 18 Md. 140 ; Holden v. Pike, 14 Vt. 405, 39 Am. Dec. 228 ; 
 Heath v. Stevens, 48 N. H. 251 ; Womack v. Womack, 8 Tex. 397, 417, 58 Am. 
 Dec. 119; Bailey v. Bamberger, 11 B. Mon. (Ky.) 113; Locke v. Smith, 41 
 N. H. 346; Lown v. Spoon, 158 App. Div. 900, 143 N. Y. Supp.*275; Johnson 
 V. Insurance Co., 56 Minn. 365, 59 N. W. 992, 26 L. R. A. 187, 45 Am. St. 
 Rep. 473. In Johnson v. Insurance Co., supra, the court says: "But if the 
 contract was free from any fraud or bad faith, and otherwise reasonable, 
 excepting that the price paid by the infant was In excess of the value of 
 what he received, his recovery should be limited to the difference between what 
 he paid and what he received." See, also, Medbury v. Watrous, 7 Hill (N. T.) 
 110, 115; Petrie v. Williams, 68 Hun, '589, 23 N. Y. Supp. 237. AVhen the 
 benefits received by the infant are of such nature that he cannot restore them, 
 he may rescind and recover what he parted with, unless it appears that the 
 contract was a fair, reasonable, and provident one, free from fraud or over- 
 reaching on the part of the other party. Braucht v. Graves-May Co., 92 Minn. 
 116, 99 N. W. 417. And see Berglund v. American Multigraph Sales Co., 135 
 Minn. 67, 160 N. W. 191 ; Link v. New York Life Ins. Co., 107 Minn. 33, 119 
 N. W. 488; BJaus v. A. C. Thompson Auto & Buggy Co., lai Minn. 10, 154 
 N. W. 508. A minor, who receives no benefit from the leased premises, may 
 recover from the lessor any money which he has paid as rent. Ex parte 
 McFerren, 184 Ala. 223, 63 South. 159, 47 L. R. A. (N. S.) 543, Ann. Cas. 
 1915B, 672, reversing Edgewood Highland Land Co. v. McFerren, 9 Ala. App. 
 275, 63 South. 157. A minor, who has received practically no benefit under 
 his contract of registration in college, is entitled, on disaffirmance, to a re- 
 turn of the tuition fee paid by him. Kamil v. New York College of Dentistry 
 (Sup.) 168 N. Y. Supp. 527. Where the net results of purchases and sales of 
 property for an infant by agents appointed for that purpose are less than his 
 first advancement to them, he was not benefited thereby, within the rule that 
 an executed contract beneficial to an infant cannot be rescinded by him un- 
 less he returns the consideration. Benson v. Tucker, 212 Mass 60 98 N E 
 589, 41 L. R. A. (N. S.) 1219. ' ' 
 
 7 2 Ward V. Anderson, 111 N. C. 115, 15 S. E. 933; McCune v. Goodwillie 
 
§§ 216-217) CONTRACTS OF INFANTS 515 
 
 cation of the original contract; and a suit, if brought, must be on 
 the original contract, and not on the new promise. The ratifica- 
 tion renders the contJ-act absolutely binding.''' It cannot be re- 
 tracted, and the contract disaffirmed.''* 
 
 A voidable contract, if executed by the infant, vests the other 
 party with an interest subject to be defeated by the infant's elec- 
 tion to rescind. A sale and conveyance of land, for instance, or a 
 sale and delivery of chattels, vest the' purchaser with a defeasible 
 title, subject to being defeated or confirmed by the infant. The 
 purchaser may therefore deal with the property, until disaffirmance, 
 by sale or otherwise, and it is important to ascertain the effect which 
 a disaffirmance will have. It is well settled that disaffirmance 
 of a contract relates back to the date of the contract, and renders 
 it void on both sides ab initio;'" and it follows that the rights of 
 the parties must be determined just as if there never had been 
 
 204 Mo. 306, 102 g. W. 997; Palmer v. Miller, 25 Barb. (N. T.) 399; Minock 
 V. Shortridge, 21 Mich. 316; Hall v. Jones, 21 Md. 4^9. But where an in- 
 fant gave a deed, and, after majority, ratified it, and gave a second deed to 
 one not having notice of the ratifi,cation, the second vendee was held to have 
 good title. "While it is true that the title, after ratification, is held, for 
 most purposes, to relate back to the original deed, yet it is the ratification 
 which is the effective act, and which rescues the deed from its liability, at 
 any moment, to be made a nullity. We have no doubt that, if the ratification 
 is by means of a written instrument, It is within the policy of the registry 
 laws. It is the object of those laws to disclose to all the world the exact 
 condition of a title, and written instruments relating to land not appearing 
 there are to be taken as not existing, unless the knowledge of them is 
 brought home in some other way. If the ratification is by acts in pais, then a 
 subsequent purchaser must be ,affected with notice of those acts." Black 
 V. Hills, 36 m. 376, 87 Am. Dec. 224. 
 
 in Tillery v. Land, 136( N. C. 537, 48 S. B. 824, holding that specific perform- 
 ance of a contract to sell real estate may be enforced after ratification. The 
 ratification after majority of a deed made during infancy is as effective as 
 if the grantor had then made a new deed. Ward v. Ward, 143 Ky. 91, 136 S. 
 W. 137. 
 
 74 Hastings v. Dollarhide, 24 Cal. 195 ; Luce v. Jestrab, 12 N. D. 548, 97 
 N. W. 848 ; North American Coal & Coke Co. v. O'Neal, 82 W. Va. 186, 95 S. 
 E. 822. See Houlton v. Manteuff'el, 51 Minn. 185, 53 N. W. 541. 
 
 7 5 Rice V. Boyer, 108 Ind. 472, 9 N. B. 420, 58 Am. Hep. 53; Mustard v. 
 Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209 ; French v. McAndrew, 
 61 Miss. 187 ; Boyden v. Boyden, 9 Mete. (Mass.) 519 ; Badger v. PMnney, 15 
 Mass. 359, 8 Am. Dec. 105 ; Hoyt v. Wilkinson, 57 Vt. 404 ; Mette v. Feltgen 
 (111.) 27 N. B. 911 ; Id., 148 111. 357, 36 N. E. 81 ; Tancey v. Boyce, 28 N. D. 
 187, 148 N. W. 539, Ann. Cas. 1916E, 258 ; Grissom v. Beidleman, 35 Okl. 343, 
 129 Pac. 853, 44 L. B. A. (N. S.) 411, Ann. Cas. 1914D, 599; Derocher v. Con- 
 tinental Mills, 58 Me. 217, 4 Am. Rep. 286; Plummer v. Northern Pac. Ry. 
 Co., 98 Wash. 67, 167 Pac. 73 ; Oneida County Sav. Bank v. Saunders, 179 
 
516 INFANTS (Ch. 14 
 
 any contract between them.'^f One, therefore, who has occupied 
 land under a conveyance by an infant, which is avoided by him 
 on attaining his majority, is liable for use and occupation during 
 the time of his occupation, just as he would be if there had been no 
 conveyance. ^^ If the infant's vendee has sold the land to some 
 third person, the latter occupies no better position than the vendee, 
 and the property may be recovered from him, even though he was 
 a purchaser for value, and without notice of the defeasible nature 
 of the title/^ 
 
 Since an infant has this absolute right to avoid his conveyances, 
 the disaffirmance will inure to the benefit of any person who may 
 stand in the infant's shoes by virtue of a subsequent conveyance of 
 the land. Thus, where a person, who has conveyed his land during 
 his minority, executes a conveyance to another person on attaining 
 his majority, the first grantee cannot escape the effect of this dis- 
 affirmance by showing that the second grantee knew of the first 
 conveyance when he took his. As was said by the Illinois court: 
 "It can in no just sense be said that the grantee of a person who 
 had conveyed during his infancy is not to be deerried an innocent 
 
 App. Div. 282, 166 N. Y. Supp. 280; Vent v. Osgood, 19 Pick. (Mass.) 572; 
 Lufkin V. Mayall, 23 N. H. 82. 
 
 76 Smoot V. Ryan, 187 Ala. 396, 65 South. 828; Yancey v. Boyce, 28 N. D. 
 187, 148 N. W. 539, Ann. Gas. 1916E, 258. It has been held in some cases 
 that, on disaffirmance of a contract for the purchase of personal property, the 
 infant must account for the use and deterioration of the property. Rice v. 
 Butler, 160 N. Y. 578, 55 N. B. 275, 47 L. R. A. 303, 73 Am. St. Rep. 703 ; 
 Wooldridge v. Iia Voie (N. H.) 104 Atl. 346. In the latter case, where the 
 infant rescinded a purchase of an automobile, it was held that he was charge- 
 able with the value of the benefits received, including the pleasure derived 
 in driving the car, and for any damage to the car caused by his tortious 
 acts, but not for damage due to unskillfulness or mere negligence. The right 
 to recover for the use of the machine on rescission of a purchase of a multi- 
 graph was recognized in Berglund v. American Multigraph Sales Co., 185 
 Minn. 67, 160 N. W. 191, and Wanisch v. Wuertz, 79 Misc. Rep. 610, 140 N. 
 Y. Supp. 573. On the other hand the right to hold the infant for use and 
 deterioration is denied in Gillis v. Goodwin, 180 Mass. 140, 61 N. E. 813, 91 
 Am. St. Rep. 265; Hauser v. Marnon Chicago Co., 208 111. App. 171; Story 
 & Clark Piano Co. v. Davy (Ind. APp.) 119 N. E. 177. 
 
 '7 French v. McAndrew, 61 Miss. 187. But he is entitled to set off value 
 of improvements placed on the property. Coe v. Moon, 260 111. 76, 102 N. E. 
 1074. To the same effect, see Tobin v. Spann, 85 Ark. 556, 109 S W 534 16 
 L. R. A. (N. S.) 672. 
 
 7 8 Hill v. Anderson, 5 Smedes & M. (Miss.) 216; Mustard v. Wohlford's 
 Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209 ; Searcy v. Hunter, 81 Tex. 644, 17 
 S. W. 372, 26 Am. St. Rep. 837 ; Downing v. Stone, 47 Mo. App. 144 ; Miles 
 V. Lingermstn, 24 Ind. 385, 
 
f § 216-217) CONTRACTS OF INFANTS 517 
 
 purchaser, if he has notice of the first deed. He has as perfect a 
 legal right to purchase land which his grantor had sold during 
 minoritx '^s he would have to purchase land that had never been 
 conveyed at all. The moment the second deed is made, the deed 
 made in infancy is disaffirmed, and becomes void. It is as if it had 
 never been. This right of disaffirmance is necessarily given by the 
 law to prevent great frauds. Yet the rio-ht would be practically of 
 little value to the minor if the person buying of him after he be- 
 comes of age is to be considered as incurring, in any way, the cen- 
 sure of the law, and to be therefore denied the position of an inno- 
 cent purchaser." '* 
 
 A conveyance by an infant may be avoided, not only as against 
 the grantee, but also as against creditors of the grantee ^'' and bona 
 fide purchasers for value from him.*^ In like manner, personal 
 property disposed of by an infant may be followed into the hands 
 of bona fide purchasers.''' And negotiable instruments executed by 
 an infant may be avoided in the hands of bona fide holders for 
 value.*' 
 
 Where services have been rendered by an infant under a void- 
 able contract, and he has received nothing under it, he may, on 
 disaffirming the contract, recover the value of the services as on an 
 implied contract.** And in such a case he may, according to the 
 better opinion, recover without any deduction for damages caused 
 by his failure to carry out the contract, for to allow such a de- 
 duction would be, in effect, to enforce the contract.*" So, also, if 
 
 '9 Black V. Hills, 36 111. 376, 87 Am. Dec. 224. 
 
 80 Seed V. Jennings, 47 Or. 464, 83 Pac. 872. 
 
 81 Conn V. Boutwell, 101 Miss. 353, 58 South. 105 ; Jackson v. Beard, 162 
 N. G. 105, 78 S. E. 6. 
 
 8= Downing v. Stone, 47 Mo. App. 144; Hill v. Anderson, 5 Smedes & M. 
 (Miss.) 216. 
 
 S3 Seeley v. Seeley-Howe-Le Van Co., 128 Iowa, 294, 103 N. W. 961. 
 
 s4Medbury v. Watrous, 7 Hill (N. Y.) 110; Gaffney v. Hay den, 110 Mass. 
 137, 14 Am. Eep. 580 ; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194 ; Whit- 
 marsh V. Hall, 3 Denio (N. Y.) 376 ; Vent v. Osgood, 19 Pick. (Mass.) 572 ; 
 Ray V. Haines, 52 111. 485 ; Dallas v. HoUingsworth, 3 Ind. 537 ; Judkins v. 
 Walker, 17 Me. 38, 35 Am. Dec. 229; Derocher v. Continental Mills, 58 Me. 
 217, 4 Am. Rep. 286 ; Lufkin v. Mayall, 25 N. H. 82. See Clark, Cont. 259. 
 
 sBuerocher v. Continental Mills, 58 Me. 217, 4 Am. Rep. 286; Whitinarsh 
 V. Hall, 3 Denio (N. Y.) 375. But see Moses v. btevens, 2 Pick. _(Mass.) 332 ; 
 Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690. But the master may show 
 any facts which affect the value of the- infant's services, such as lack of 
 skill, or negligence or disobedience of orders, or injury resulting therefrom, 
 Vehue v. Pinkham, 60 Me. 142; and will be credited with payments made 
 
518 INFANTS (Ch. 14 
 
 an infant has been paid money or parted with property under, a 
 voidable contract, and has himself received nothing, he may re- 
 cover what he has parted with on avoiding the contract.'® Even 
 where he has received something under the contract, he may return 
 it, and recover what he has parted with ; and, as has been seen, ac- 
 cording to the weight of authoritv, he, may so recover without re- 
 turning what he has received, if he has lost, wasted, or used it dur- 
 ing his minority, so that he cannot return it. A disaffirmance can- 
 not be retracted. A ratification after a disaffirmance comes too 
 late " 
 
 REMOVAL OF DISABILITIES 
 
 218. The emancipation of an infant by act of the parent or by mar- 
 riage, while removing some of the disabilities of infancy, 
 does not enlarge the capacity to contract. In some states, 
 however, the disabilities of infancy may be removed by 
 judicial proceedings. 
 
 An infant may be emancipated by the act of his parent or by mar- 
 riage ;°' ^nd, while emancipation will to some extent remove the 
 disabilities of infancy,'" it does not enlarge or affect his capacity 
 to contract,"" or his capacity to sue without a next friend or guard- 
 under the contract, Hagerty v. Lock Co., 62 N. H. 576 ; or with the value of 
 necessaries furnished the Infant, Meredith v. Crawford, 34 Ind. 399. 
 
 8« StafCord v. Roof, 9 Cow. (N. Y.) 626; Oorpe v. Overton, 10 Bing. 252; 
 Millard v. Hewlett, 19 "Wend. (N. Y.) 301 ; ShurtlefC v. Millard, 12 R. I. 272, 
 
 34 Am. Rep. 640 ; Ross P. Curtice Co. v. Kent, 89 Neb. 496, 131 N. W. 944, 52 
 L. R. A. (N. S.) 723 (holding that, where an infant disaffirms a conditional 
 sale contract, the title to the property remains in the vendor, and the infant 
 may recover any payments made). 
 
 87 Edgerton v. Wolf, 6 Gray (Mass.) 453; McC&rty v. "Woodstock Iron Co., 
 92 Ala. 463, 8 South. 417, 12 L. R. A. 136. 
 
 8 8 Ante, p. 358. 
 
 8 8 Inhabitants of Bucksport v. Inhabitants of Rockland, 56 Me. 22; Person 
 V. Chase, 37 Yt 647, 88 Am. Dec. 630 ; Inhabitants of Taunton v.' Inhabitants 
 of Plymouth, 15 Mass. 203 ; Trammell v. Trammell, 20 Tex. 406 ; Grayson v. 
 Lofland, 21 Tex. Civ. App. 503, 52 S. W. 121 ; Lawder v. Larkln (Tex. Civ. 
 App.) 94 S. "W. 171 ; Robinson v. Hathaway, 150 Ind. 679, 50 N. E. 883 ; "Ward 
 V. Laverty, 19 Neb. 429, 27 N. "W. 393; Hosklns v. "White, 13 Mont. "^0, 32 
 Pac. 163. And see Genereux v. Sibley, 18 R. I. 43, 25 Atl. 345. 
 
 »o Mason v. "Wright, 13 Mete. (Mass.) 306; Inhabitants of Taunton v. In- 
 habitants of Plymouth, 15 Mass. 203 ; Tyler v. Gallop's Estate, 68 Mich. 185 
 
 35 N. "W. 902, 13 Am. St. Rep. 336; Genereux v. Sibley, 18 R. I. 43, 25 Atl' 
 345; Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630; Hudson's Guardian v 
 Hudson, 160 Ky. 432, 169 S. W. S91 ; Fields v. Mitchell, 112 Me. 368, 92 Atl 
 
§ 218)' EEMOTAL OF DISABILITIES '519 
 
 ian,"^ or give him political rights not belonging to infants gen- 
 erally."^ Even statutes which confer on married women the pow- 
 er to contract generally, and to convey their separate real estate 
 with or without the consent of their husbands, do not operate to 
 remove the disability of infancy, but only that of coverture. °^ 
 
 In some states, however, provision is made by statute for the re- 
 moval of the disabilities of infancy by judicial proceedings ; °* the 
 power being usually vested in courts of chancery,"^ or of pro- 
 bate. °° On a proper showing of the infant's ability to manage his 
 own affairs," the court may in its discretion enter an order or de- 
 cree emancipating the infant and removing his disabilities."* The 
 effect of the order or decree is to invest the infant with all the 
 powers and capacities, and to subject him to all the liabilities, he 
 would have or be subject to if he had actually attained his ma- 
 jority. °° 
 
 293; Hoskins v. White, 13 Mont. 70, 32 Pac. 163. Except as to necessaries, 
 Chapman v. Hughes, 61 Miss. 339. 
 
 81 Hoskins v. White, 13 Mont. 70, 32 Pac. 163. But see Ex parte Hollopeter, 
 52 Wash. 41, 100 Pac. 159, 21 L. It. A. (N. S.) 847, 132 Am.- St. Eep. 952, 17 
 Ann. Cas. 91. And see, also, Hays v. Bowdoin, 159 Ala. 600, 49 South. 122. 
 
 92 Inhabitants of Taunton v. Inhabitants of Plymouth, 15 Mass. 203. 
 
 93 Shipley v. Smith, 162 Ind. 526, 70 N. E. 803 ; Sims v. Gunter, 201 Ala. 
 286, 78 South. 62 ; Burr v. Wilson, 18 Tex. 367. But see Ward v. Laverty, 
 19 Neb. 429, 27 N. W. 393. 
 
 9*Boykin v. Collins, 140 Ala. 407, &7 South. 248; Young v. Hiner, 72 Ark. 
 299, 79 S. W. 1062; Doles v. Hilton, 48 Ark. 305, 3 S. W. 198; Marks v. Mc- 
 Elroy, 67 Sliss. 545, 7 South. 408 ; Cunningham v. Eobison, 104 Tex. 227, 136 
 S. W. 441. Under Kirby's Dig. § 1309, a cou^t cannot remove the disabilities 
 of minors under 14 years of age to enable them to convey an interest in land. 
 Dalton V. Bradley Lumber Co., 135 Ark. 392, 205 S. W. 695. 
 
 95 Boykin v. CoUIqs, 140 Ala. 407, 37 South. 248; Toung v. Hiner, 72 Ark. 
 299, 79 S. W. 1062 ; Marks v. McElroy, 67 Miss. 545, 7 South. 408. By the dis- 
 trict court in Texas. Buckley v. Herder (Tex. Civ. App.) 133 S. W. 703. 
 
 96 Doles v. Hilton, 48 Ark. 305, 3 S. W. 193. 
 
 9' In re Pochelu's Emancipation, 41 La. Ann. 381, 6 South. 541; Doles v. 
 Hilton, 48 Ark. 305, 3 S. W. 198 ; Toung v. Hiner, 72 Ark. 299, 79 S. W. 
 1062 ; Brown v. Wheelock, 75 Tex. 385, 12 S. W. Ill, 841. 
 
 98 Boykin v. Collins, 140 Ala. 407, 37 South. 248; Ketchum v. Paircloth- 
 Segrest Co., 155 Ala. 256, 46 South. 476; Doles v. Hilton, 48 Ark. 305, 3 S. W. 
 193 ; Brown v. Wheelock, 75 Tex. 385, 12 S. W. Ill, 841. The function of the 
 court being in the nature of a special authority to the judge as commissioner, 
 and not to the court, no presumption in favor of the order is indulged in 
 ease of collateral attack. Buckley v. Herder (Tex. Civ. App.) 133 S. W. 703. 
 A void decree may be attacked anywhere. Lake v. Perry, 95 Miss. 550, 49 
 South. 569. 
 
 99 Young v. Hiner, 72 Ark. 29^, 79 S. W. 1062; Succession of Gaines, 42 
 La. -Ann. 699, 7 South. 788. But the decree or order has no extraterritorial 
 
520 INFANTS (Ch. 14 
 
 ACTIONS IN TORT BY INFANTS 
 
 219. An infant has the same right as an adult to sue for tortious 
 
 injuries. Such actions are governed by the ordinary rules 
 of law, and, if the infant fails to exercise due care, his con- 
 tributory negligence may bar his right of recovery. 
 
 220. The due care required by law, being due care under the circum- 
 
 stances of the case — 
 
 (a) A less degree of care will ordinarily be required of an infant 
 
 than of an adult, and accordingly — 
 
 (1) An infant too young to be capable of exercising due care 
 
 is held, as a matter of law, incapable of contributory 
 negligence. 
 EXCEPTION — In some jurisdictions the negligence of the 
 parent or guardian will be imputed to the child. 
 
 (2) In general, only such care will be required of an infant 
 
 as is due care in one of his years and experience. 
 
 (b) A greater degree of care is required of an adult in dealing 
 
 with an infant than with an adult. 
 
 (c) An adult who places a dangerous agency, which, from its na- 
 
 ture, is attractive to children, where it is accessible to 
 them, may be liable for injuries caused thereby, though the 
 children are trespassers. 
 
 In the case of an injury to the person of an infant by the tortious 
 act of- another, two causes .of action may arise — one, as has been 
 seen, in favor of the parent for loss of services; ^ and one in favor 
 of the infant for the injury to his person.^ In actions by the in- 
 fant the ordinary rules of law governing the question of negligence 
 apply, except in so far as they must necessarily be modified to meet 
 the changed conditions arising from the infant's want of discretion 
 and experience. A child of very tender years has been held, as a 
 
 effect, State v. Bunce, 65 Mo. 349 ; Wilkinson v. Buster, 124 Ala. 574, 26 
 South. 940; and does not affect contracts executed in other jurisdictions. 
 
 lAnte, p. 365. 
 
 2 Georgia Pac. Ry. Co.' v. Propst, 83 Ala. 518, 3 South. 764; Louisville, H. 
 & St. L,. B. Co. V. Lyons, 156 Ky. 222, 160 N. W. 942, denying rehearing' 155 
 Ky. 396, 159 S. W. 971, 48 L. R. A. (N. S.) 667; McGreevey v. Boston Elevated 
 Ry. Co., 232 Mass. 347, 122 N. E.. 278 ; Hartfleld v. Roper, 21 Wend. (N. T.) 
 615, 34 Am. Dec. 273. But in an action by a ininor for damages for injury to 
 his person he cannot recover for loss of time, since his services belonged to 
 
§§ 219-220) ACTIONS IN TOUT BY INFANTS 521 
 
 matter of law, incapable of contributory negligence ; ° and, in gen- 
 eral, a less degree of care is required of an infant than of an adult. 
 The degree required depends on his age and knowledge, and is such 
 as would be ordinary care in one of his years and experience, under 
 the same circumstances.* 
 
 On the other hand, an adult will be held to a higher degree of care 
 in dealing with an infant than with one of mature age and under- 
 Standing.^ To the general rule, that one injured while trespassing 
 or guilty of contributory negligence has no right of action for the 
 injury, there is an exception in favor of children in case they are 
 injured by dangerous agencies which are in their nature likely to 
 be tempting to them, and which are left where they are accessible. 
 The theory on which these cases proceed is that the temptation of 
 an attractive plaything to a child is a thing which must be expected 
 and guarded against, and that the placing of such objects where 
 
 his father. Burke v. Ellis, 105 Tenn. 702, 58 S. W. 855 ; Cole y'. Searfoss, 49 
 Ind. App. 334, 97 N. E. 345 ; Helm v. Phelps, 157 Ky. 795, 164 S. W. 92. But 
 compare Harris-Irby Cotton Co. v. Duncan, 57 Okl. 761, 157 Pac. 746. He 
 may maintain an action for other torts such as slander. Stewart v. Howe, 
 17 111. 71 ; Hurst v. Goodwin, 114 Ga. 585, 40 S. E. 764, 88 Am. St. Eep. 43. 
 A child cannot after its birth recover from a railroad company for a deform- 
 ity caused by the company's negligence in transporting its mother, who was 
 then enceinte. Nugent v. Brooklyn Heights K. Co., 154 App. Div. 667, 139 N. 
 Y Supp. 367 ; Id., 154 App. Div. 953, 139 N. Y. Supp. 372, appeal dismissed 
 209 N. Y. 515, 102 N. E. 1107. To the same efCect, see Lipps v. Milwaukee 
 Electric Ry. & Light Co., 164 Wis. 272, 159 N. W. 916, L. R. A. 1917B, 334. 
 
 3 Fink V. Furnace Co., 10 Mo. App. 61 ; American Tobacco Co. v. Polisco, 
 104 V a. 777, 52 S. E. 563 ; Erie City Pass. Ry. Co. v. Schuster, 113 Pa. 412, 
 6 Atl. 269, 57 Am. Rep. 471 ; Hartfield v. Roper, 21 Wend. (N. Y.) 615, 34 Am. 
 Dec. 273; Mangam v. Railroad Co., 38 N. Y. 455, 98 Am. Dec. 66; Schmidt 
 V. xJailway Co., 23 Wis. 186, 99 Am. Dec. 158; Toledo, W. & W. Ry. Co. v. 
 Grable, 88 111. 441 ; Morgan v. Bridge Co., 5 Dill. 96, Fed. Cas. No. 9,802 ; 
 Bay Shore R. Co. v. Harris, 67 Ala. 6. 
 
 4 Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745 ; Union Pac. 
 R. Co. V. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434; Byrne 
 V. Railroad Co., 83 N. Y. 620; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188; 
 Dowling V. Allen, 88 Mo. 293 ; Chicago & A. R. Co. v. Becker, 76 111. 25 ; Evan- 
 sich V. Railway Co., 57 Tex. 126, 44 Am. Rep. 586 ; Huff v. Ames, 16 Neb. 
 139, 19 N. W. 623, 49 Am. Rep. 716 ; Lynch v. Nurdin, 1 Q. B. 29 ; Fishburn 
 V. Burlington & N. W. Ry. Co., 127 Iowa, 483, 103 N. W. 481; Slattery v. 
 Lawrence Ice Co., 190 Mass. 79, 76 N. E. 459. It has been held that boys 
 10 or 12 years of age, who are permitted to go about unattended, may fairly 
 be presumed to have sense enough to take care of themselves from the or- 
 
 • dlnary and usual, dangers of street traffic. V. S. v. Wright, 26 Phil. Rep. 217. 
 3 Carter v. Towne, 98 Mass. 5l67, 96 Am. Dec. 682; Binford v. Johnston, 
 82 Ind. 426, 42 Am. Rep. 508; Bransom's Adm'r v, Labrot, 81 Ky. 638, 50 
 Am. Rep. 193. 
 
522 INFANTS (Ch. 14 
 
 they are accessible to children is an implied invitation to them.^ 
 When a child is too young to be capable of exercising care, it is held 
 in some jurisdictions that contributory negligence on the part of 
 his parent or guardian will prevent recovery by the child/ By the 
 ' weight of authority, however, this rule is expressly repudiated.' 
 
 8An owner has been held liable,, on this principle, for Injury to a child caus- 
 ed by the caving in of a sandpit, attractive to and frequented by children, 
 Fink V. Missouri Furnace Co., 10 Mo. App. 61 (contra, Ratte v. Davcson, 50 
 Minn. 450, 52 N. W. 965); for leaving dangerous explosives accessible to chil- 
 dren, as a single torpedo unguarded on a railway track, Harriman v. Pitts- 
 hurg, C. & St. L. Ry. Co., 45 Ohio St. 11, 12 j^. E. 451, 4 Am. St. Rep. 507; 
 and dynamite in an open shed, near where children were in the habit of play- 
 ing. Powers V. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Eep. 154. In 
 this case the court said: "If they leave exposed to the observation of children 
 anything which would be tempting to them, and which they in their immature 
 judgment ^ight naturally suppose that they were at liberty to handle or play 
 with, they should expect that liberty to be taken." On the same principle, 
 railroads have been held liable for injuries caused to children from play- 
 ing on turntables. Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 21 L. 
 Ed. 745; KefEe v. Milwaukee & St. P. RyCo., 21 Minn. 211, 18 Am. Rep. 393. 
 In the last case the court said: "Now, what an express invitation would be 
 to an adult, the temptation of an attractive plaything is to a child of tender 
 years. If the defendant had left this turntable unfastened for the purpose of 
 attracting young children to play upon it, knowing tile danger into which ' 
 It was thus alluring them, it certainly would be no dfefense to an action by 
 the plaintiff, who had been attracted upon the turntable and injured, to say 
 that the plaintiff was a trespasser, and that his childish Instincts were no 
 excuse for his trespass." See, also, Nagel v. Railway Co., 75 Mo. 653, 42 
 Am. Rep.. 418; Evansich v. Gulf, C. & S. P. Ry. Co., 57 Tex. 126, 44 Am. 
 Rep. 586; Kansas Cent. Ry. Co. v. Pitzsimmons, 22 Kan. 686, 31 Am. Rep. 
 203; Union Pac, R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. 
 Ed. 434. 
 
 f This doctrine was first laid down in Hartfield v. Roper, 21 Wend. (N. 
 T.) 615, 34 Am. Dec. 273. Cowen, J., said: "It is perfectly well settled that, 
 if the party injured by a collision on the highway has drawn the mischief 
 upon himself by his own neglect, he is not entitled to an action, even though 
 he be lawfully in the highway pursuing his travels, which can scarcely be 
 said of a toppling infant, suffered by his guardians to be there, either as 
 a traveler, or for the purpose of pursuing his sports. The application may be 
 harsh when made to small children. As they are known to have no personal 
 discretion, common humanity is alive to their protection; but they are not, 
 therefore, exempt from the legal rule, when they bring an action for redress, 
 and there is no other way of enforcing it except by requiring due care at 
 the hands of those to whom the law and the necessity of the case has dele- 
 gated the exercise of discretion. An infant is not sui juris. He belongs to 
 another, to whom discretion in the care of his person is exclusively confided. 
 That person is keeper and agent for this purpose, and, in respect to third 
 persons, his act must be deemed that of the infant ; his neglect, the infant's 
 heglect." And see Holly v. Gaslight Go., 8 Gray (Mass.) 123, 69 Am. Dec. 
 
 8 See note 8 on following page. 
 
§§ 221-222) LIABILITY OF INFANTS FOR ,TOETS 523, 
 
 LIABILITY OF INFANTS FOR TORTS 
 
 221. An infant must answer for his torts as fully as an adult, and 
 
 the fact that the tort is committed under authority or com- 
 mand of his parent is no defense. 
 
 222. Since an infant is not bound by his contract, except in certain 
 
 cases, a breach of contract, except in those cases, cannot be 
 treated as a tort, so as to make him liable. /The tort must 
 be separate and independent of it. 
 
 Infancy is no defense for a tort committed by a minor. He is 
 liable for injuries caused to the person or property of another as 
 
 233; LesUe v. City of Lewiston, 62 Me. 468; Bvansville & C. R. Co. v. Wolf, 
 59 Ind. 89 ; Schmidt v. Milwaukee & St. P. Ey. Co., 23 Wis. 186, 99 Am. Dec. 
 158 ; Toledo, W. & W. Ry. Co. v. Grable, 88 111. 441 ; Meeks v. Southern Pac. 
 E. Co., 52 Cal.' 602 ; Baltimore & O. E. Co. v. State, to Use of Fryer, 30 Md. 
 47 ; Hathaway v. Toledo, W. & W. Ey. Co., 46 Ind. 25 ; Weil v. Dry Dock, B. 
 B. & B. R. Co., 119 N. Y. 147, 23 N. E. 487. 
 
 8 Eobinson v. Cone, 22 Vt. 213, 54 Am. Dec. 67. In this case the court 
 said: "Here the Jury have found that the plaintiff was properly sufEered 
 by his parents to attend school at the age and in the manner he did, and 
 that injury happened through the ordinary neglect of the defendant, or, if 
 not properly suffered to go to school, then that thfe defendant was guilty Of 
 gross neglect ; for the judge put the case in the alternative to the jury, and 
 they have found a general verdict for the plaintiff. And we are 'satisfied that 
 although a child or idiot or lunatic may, to some extent, have escaped into 
 the highway through the fault or negligence- of his keeper, and so be im- 
 properly there, yet if he is hurt by the negligence of the defendant, he is not 
 precluded from his redress." And see Daley v. Norwich & W. R. Co., 26 Conn. 
 591, 68 Am. Dec. 413 ; Brie City Pass. Ry. Co. v. Schuster, 113 Pa. 412, 6 Atl. 
 269, 57 Am. Rep. 471; Belief on taine & I. E. Co. v. Snyder, 18 Ohio St. 399, 98 
 Am. Dec. 175; Government St. R. Co. v. Hanlon, 53 Ala. 70; Whirley v. White- 
 man, 1 Head (Tenn.) 610; Huff v. Ames, 16 Neb. 139, 19 N. W. 623, 49 Am. 
 Eep. 716 ; Mattson v. Minnesota & N. W. R. Co., 95 Minn. 477, 104 N. W. 443, 
 70 Tj. B. a. 503, 111 Am. St. R^p. 483, overruling Fitzgerald v. St. Paul, M. 
 
 6 M. Ry. Co., 29 Minn. 336, 13 N..W. 168, 43 Am. Rep. 212; Wilmotv. McPad- 
 den, 78 Conn. 276, 61 Atl. 1069 ; Boehm v. City of Detroit, 141 Mich. 277, 104 
 N. W. 626; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 South. 183, 
 
 7 Ann. Cas. 241 ; Chicago City Ry. Co. v. Wilcox, 138 111. 370, 27 N. K 899, 
 21 L. R. A. 76; Walters v. Chicago, E. I. & P. E. Co., 41 Iowa, 71: Bat- 
 tighill V. Humphreys, 64 Mich. 494, 31 N. W. 894; Boland v. Missouri E. 
 Co., 36 Mo. 484; Winters v. Kansas City Cable Ey. Co., 99 Mo. 509, 12 S. 
 W. 652, 6 L. R. A. 536, 17 Am. St. Eep. 591. The Missouri cases are, however, 
 somewhat conflicting. There is also some doubt as to the rule in Kansas, 
 Maryland, and Wisconsin. Smith v. Atchison, T. & S. F. E. Co., 25 Kan. 
 742; McMahon v. Northern Cent. R. E. Co., 39 Md. 439 ; Ewen v. Chicago & 
 N. W. Ry. Co., 38 Wis. 613 ; Hoppe v. Chicago, M. & St. P. Ry. Co., 61 Wis. 
 397, 21 N. W. 227. 
 
524 INFANTS (Ch. i4 
 
 fully as is an adult.* Thus, an action in tort will lie against a» 
 infant for an injury caused by his negligence;^* for conversion,^* 
 trespass,^" assault,^* or slander." "The law with respect to lia- 
 bility of infants has proceeded rather on the theory of compensating 
 the injured party than of consistently maintaining any logical 
 doctrine as to the mental attitude of the wrongdoer, and of basing 
 the responsibility on the wrongful intention or inadvertence. The 
 cases proceed on the propriety of holding all persons liable for ac- 
 
 Daugh^rty v. Reveal, 54 Ind. App. 71, 102 N. E. 381 ; Briese v. MaecMle, 
 146 Wis. 89, 130 N. W. 893, 35 L. R. A. (N. S.) 574, Ann. Cas. 1912C, 176; 
 Uaggy V. Miller, 180 Iowa, 1146, 162 N. W. 854. 
 
 10 Jag. Torts, 159, and cases there cited ; Bac. Abr. "Infancy and Age," 
 H; School Di^t. No. 1 r. Bragdon, 23 N. H. 507; Conklin v. Thompson, 29 
 Barb. (N. Y.) 218; Bullock v. Babcock, 3 Wend. (N. Y.) 391 ; Peterson v. HafE- 
 ner, 59 Ind. 130, 26 Am. Rep. 81 ; Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 
 354; House v. Fry, 30 Cal. App. 157, 157 Pac. 500; Huchting v. Engel,' 17 
 Wis. 230, 84 Am. Dec. 741. On the question of negligence, the jury has a 
 right to take into consideration the childhood of the parties. Harvey v. Dun- 
 lop, Lalor's Supp. (N. Y.) 193. In Bullock v. Babcock, supra, it was said: 
 "Where infants are the actoi-s, that might probably be considered an unavoid- 
 able accident which would not be so considered where the actors are adults." 
 Where defendants were 13 and 16, it was held that their youth was not to be 
 taken into consideration on the question of negligence. Neal y. Gillett, 23 
 Conn. 437. A minor may reasonably be expected to exercise that degree of 
 care which a person of his age, capacity, discretion, and experience would 
 naturally and ordinarily use. Briese v. Maechtle, 146 Wis. 89, 130 N. W. 
 893, 35 L. R. -A. (N. S.) 574, Ann. Cas. 1912C, 176. And see Harnett v. Boston 
 Store of Chicago, 265 111. 331, 106 N. B. 837, L. R. A. 1915C, 460, affirming 
 185 111. App. 332.^ Owner of motor car having loaned it to infant cannot re- 
 cover in tort for injuries to car occasioned by. infant's unskiUful driving. 
 Brunhoelzl v. Brandes, 90 N. J. Lawi 31, 100 Atl. 163. An infant owner of a 
 store building is not liable for the negligence of a janitor employed by him, 
 where the janitor failed to give warning of an opening in the sidewalk of- the 
 premises. Oovault v. Nevitt, 157 Wis. 113, 146 N. W. 1115, 51 U R. A. (N. S.) 
 1092, Ann. Cas. 1916A, 959. 
 
 11 Jag. Torts, 159; Mills v. Graham, 1 Bos. & P. 140; Vasse v. Smith, 6 
 Oranch. 226, 3 L. Ed. 207 ; Walker v. Davis, 1 Gray (Mass.) 506 ; Baxter v. 
 Bush, 29 Vt. 465, 70 Am. Dec. 429; Fitts v. Hall, 9 N. H. 441; Pledge v. 
 Griffith, 199 Mo. App. 303, 202 S. W. 460; Lewis v. Littlefleld, 15 Me. 235. 
 
 12 Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; O'Leary v. 
 P-ook's Elevator Co., 7 N. D. 554, 75 N. W. 919, 41 L. R. A. 677; Munden v. 
 Harris, 153 Mo. App. 652, 134 S. W. 1076 ; Jag. Torts, 159. But see Huggett 
 T. Erb, 182 Mich. 524, 148 N. W. 805, Ann. Cas. 1916B, 852. 
 
 18 Watson v. Wrightsman, 26 Ind. App. 437, 59 N. B. 1064. 
 
 14 Defries v. 'Davis, 1 Bing. N. C. 692 ; Fears v. Riley, 148 Mo. 49, 49 S. W. 
 836 ; Jag. Torts, 159. An infant under 7 years of age is not liable for slander 
 or libel, and if he is over 7 and under 14 he is not liable unless he is capable 
 of entertaining the malice essential to slander and libel. Munden v. Harris, 
 153 Mo. App. 652, 134 S. W. 1076. 
 
§§ 221-222) LIABILITY OP INFANTS FOE TORTS 525 
 
 tual damages committed by them, and of ignoring volition as a 
 necessary element of a juridical cause." ^^ As was said by L,ord 
 Kenyon in a leading English case : "If an infant commit an assault, 
 or utter slander, God forbid that he should not be answerable for it 
 in a court of justice." ^° The fact that a tort is committed by an 
 infant under authority or command of his parent may render the 
 parent also liable, but it will not excuse the infant.^' 
 
 Infants cannot empower an agent or attorney to act for them, 
 nor, by the weight of authority, affirm what another may have as- 
 sumed to do on their account; and therefore they are not liable for 
 torts alleged to have been committed by their agent. They cannot 
 be held liable for "torts by a prior or subsequent assent, but only for 
 their own act." ^' 
 
 There are cases in which tenderness of age may be available as a 
 defense. "In certain classes of cases, the inability of very young 
 infants to be intelligent actors, and therefore their inability to ju- 
 dicially cause a wrong, has been recognized. In sjich cases the ■ 
 wrong is considered due to unavoidable accident.^" And, where 
 malice is a necessary element, an infant may or may not be liable; 
 according as his age and capacity may justify imputing malice to 
 him, or may preclude the idea of his indulging it." "" 
 
 Tort or Contract 
 
 While an infant is liable for his torts, yet if the tort arises from 
 a breach of contract, and is not separate from and independent of 
 the contract, he cannot be deprived of his defense of infancy, by 
 the plaintiff's merely changing the form of action, and suing in 
 tort.^^ If however, the tort, though in a sense connected with 
 
 15 Jag. Torts, 159, where the subject Is discussed, and numerous cases col- 
 lected. I 
 
 16 Jennings v. Eundall, 8 Term R. 335. 
 
 17 Scott V. Watson, 46 Me. 362, 74 Ant. Dec. 457 ; O'Leary v. Brooks Eleva- 
 tor Co., 7 N. D. 554, 75 N. W. 919, 41 L. R. A. 677 ; Humphrey v. Douglass, 10 
 Vt. 71, 33 Am. Dec. 177 ; Smith v. Kron, 96 N. C. 392, 2 S. E. 533 ; Wilson 
 V. Garrard, 59 111. 51 ; Jag. Torts, 160. 
 
 ■18 Jag. Torts, 160; Burnham v. Seaverns, 101 Mass. 360, 100 Am. Dec. 123; 
 Cunningham v. Railway Co., 77 111. 178. 
 
 10 Bullock V. Babcock, 3 Wend. (N.-Y.) 391; Jag. Torts, 160; Ames & S. Gas. 
 Torts, 30; Whart. Neg. § 88; note 10, p. 524, supra. 
 
 2» Jag. Torts, 160; Cooley,' Torts. (2d Ed.) 120^ Johnson v. Pye, 1 Sid. 258; 
 Stephens v. Stephens, 172 fCy. 780, 1S9 S. W. 1143; Munden v. Harris, 153 
 Mo. App. 652, 134 S. W. 107«L^; 
 
 21 Jag. Torts, 162; Clark^ont. 260; Jennings v. Rundall,. 8 Term B. 335; 
 Lowery v. Gate, 108 Tenn. sl, 64 S. W. 1068, 57 L. R. A. 673, 91 Am. St. Rep. 
 
526 INFANTS (Ch. 14 
 
 the contract, is not a mere breach of it, but a distinct wrong of it- 
 self, the infant is liable." Where an infant hired a horse to ride, 
 and injured it by overriding, it was held that he could not be made 
 liable upon the contract by framing the action in tort for negli- 
 gence.^=' Where, on the other hand, an infant hired a horse express- 
 ly for riding, and not for jumping, and then lent it to a friend who 
 killed it in jumping, he was hpld liable, because what he had done 
 was not an abuse of the contract, but an act which he was express- 
 ly forbidden to do, and was therefore independent of the contract.^* 
 In other words, "if an infant bailee does any willful or positive act, 
 amounting to an election on his part to disaffirm the contract, or to 
 convert the property to his own use, or if he wantonly and inten- 
 
 744; Brunhoelzl v. Brandes, 90 N. J. Law, 31, 100 Atl. 163; Collins v. Gif- 
 ford, 203 N. T. 465, 96 N. E. 721, 38 D. R. A. (N. S.) 202, Ann. Gas. 1913A, 
 969, reversing 134 App. Div. 988, 118 N. Y. Supp. 1100; Frank Spangler 
 Co. V. Haupt, 53 Pa. Super. Ct. 545 ; Eaton v. Hill, 50 N. H. 235, 9 Am. Kep. 
 189, and cases hereafter cited. 
 
 22 Jag. Torts, 162; Clark, Cont. 260; Burnard v. Haggis, 14 C. B. (N. S.) 
 ^5 ; Homer v. Thwing, 3 Pick. (Mass.) 492 ; Ray v. lubbs, 50 Vt. 688, 28 Am. 
 Rep. 519, and cases hereafter cited. Although a minor's contract for the pur- 
 chase of a piano on installments is not binding, she cannot take advantage of 
 her minority to commit a fraud on the seller by making a sale of the instru- 
 ment to a third person. Dorothy v. Salzberg, 207 111. App. 133. 
 
 23 Jennings v. Rundall, 8 Term R. 335; YOUNG v. MUHLING, 48 App. Div. 
 617, 63 N. Y. Supp. 181, Cooley Cas. Persons and Domestic Relations, 282. 
 The infant cannot be held liable for injuries to the thing bailed caiised by 
 his mere lack of skill or Experience. Moore v. Eastman, 1 Hun (N. Y.) 578 ; 
 Eaton V. Hill, 50 N. H. 235, 9 Am. Rep. 189. In the latter case it was said: 
 "When the infant stipulates for ordinary skill and care in the use of the 
 thing bailed, but fails for want of skill and experience, and not from any 
 wrongful intent, it is in accordance with the policy of the law that his priv- 
 ilege, based upon his want of capacity to make and fully understand such 
 contracts, should shield him. A failure in such a case, from, mere want of 
 ordinary care or skill, might well be regarded as, in substance, a breach of 
 contract, for which the infant is not liable, even although in ordinary cases 
 an action ex delicto might be sustained. But when, on the other hand, the 
 infant wholly departs from his character of bailee, and, by some positive act, 
 willfully destroys or injures the thing bailed, the act is in its nature essen- 
 tially a tort, the same as if there had been no bailment, even if assumpsit 
 might be maintained in. the case of an adult, or a promise to return the 
 thing safely." 
 
 2 4Burnard v. Haggis, 14 C. B. (N. S.)'45. The same Is true where an in- 
 fant hires a horse to go to . one place, but goes elsewhere, and injures the 
 horse by overdriving. He is liable in trover or trespass. Homer v. Thwing, 
 3 Pick. (Mass.) 492. And see CHURCHILL v. WHITE, 58 Neb. 22, 78 N. w'. 
 369, 76 Am. St. Rep. 64, Cooley Cas. Persons and Domestic Relations, 285; 
 Campbell v. Stakes, 2 Wend. (N. Y.) 137, 19 Am. Dec. 561; Hall v. Corcoran, 
 107 Mass. 251, 9 Am. Rep. 30 ; Woodman v. Hubbard, 25 N. H. 73, 57 Am. Dec. 
 
§§ 221-222) LIABIUTT OP INFANTS FOR TOETS 527 
 
 tionally commits a trespass, his infancy is no protection." " A 
 good illustration of the application of the principle under considera- 
 tion is in the case of seduction under a promise of marriage. A 
 promise by an infant to marry is not binding on him, and he could 
 not be sued for the mere breach thereof; but he may, nevertheless, 
 be held liable in an action ex delicto for seducing a woman under a 
 promise of marriage.^" 
 
 This question frequently arises in actions against an infant for 
 fraud in connection with a contract. If the action proceeds on the 
 idea that the contract exists, it cannot be maintained. Thus, an ac- 
 tion will not lie against an infant for false warranty in the sale of 
 goods ; ^^ nor will an action lie for falsely warranting a horse to 
 be sound.^* It has been held that, if an infant obtains goods by 
 false representations — and this includes false representations that 
 he is of age — the other party may avoid the contract on the ground 
 of the fraud ; and in such event the property may be considered as 
 never having passed from him, or as having reveste'd in him, and 
 therefore he may maintain replevin to recover the goods, or trover 
 for their conversion.^' Many cases hold that false representations 
 by an infant that he is of age, inducing the other party to contract 
 with him, do not estop him from pleading his infancy if sued upon 
 the contract,^" and that such false representations will not estop 
 him from avoiding his contract, and seeking aiifirmative relief, as to 
 
 310; Towne v. Wiley, 2.S Vt. 355, 56 Am. Dec. 85; Ray v. Tubbs, 50 Vt. 688, 
 28 Am. Rep. 519 ; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340 ; . Lewis v. 
 Littlefield, 15 Me. 233. Contra, Penrose v. Curren, 3 Rawle (Pa.) 351, 24 
 Am. Dec. 356 ; Wilt v. Welsh, 6 Watts (Pa.) 9. And see Scbenk v. Strong, 4 
 N. J. Law, 97. That trover will lie for goods converted by an infant, al- 
 though in his possession by virtue of a contract, see, also, Vasse v. Smith, 
 6 Cranch, 226, 3 L. Ed. 207; Fitts v. Hall, 9 N. H. 441; Mathews v. Cowan, 
 59 111, 341. 
 
 2 5 Jag. Torts, 162. 
 
 2 a Becker v. Mason, 93 Mich. 336, 53 N. W. 361. 
 
 2 7 Prescott V. Norris, 32 N. H. 101; Doran v. Smith, 49 Vt. 353; Stiidwell 
 V. Shapter, 54 N. Y. 249. 
 
 2 8Gilson V. Spear, 38 Vt. 311, 88 Am. Dec. 659; Green v. Greenbank, 2 
 Marsh. C. P. 485 ; Howlett v. Haswell, 4 Camp. 118. But see Vance v. Word, 
 1 Nott & McC. (S. C.) 197, 9 Am. Dec. 683. And see Patterson v. Kasper, 182 
 Mich. 281, 148 N. W. 690, L. R. A. 1915A, 1221, holding that, where an Infant 
 sold a horse misrepresenting his character, the infant could not escape lia- 
 bility for tort on the theory that the matter arose ex contractu. 
 
 29 Badger v. Phlnney, 15 Mass. 359, 8 Am. Dec. 105; NefC v. Landis, 110 
 Pa. 204, 1 Atl. 177. 
 
 30 Ante, p. 490. 
 
528 INFANTS (Ch. 14 
 
 recover property which he has parted with.** By the weight of 
 authority, if an infant fraudulently induces another to deal with 
 him by falsely representing that he is of age, and afterwards avoids 
 the contract, the other par'fy may maintain an action of deceit 
 against him.^^ There are cases, however, which hold the other 
 way.^' 
 
 In equity an infant stands in a very different position as to his 
 frau(|ulent representations; and where he has falsely represented 
 that he is of age, or been guilty of other fraudulent acts, whereby, 
 he has entrapped others into selling or purchasing property, or ad- 
 vancing money on it, he will not be heard to plead his infancy to 
 the other's prejudice; and the general tendency of courts of equity 
 is to refuse to recognize the disability of infancy when taken advan- 
 tage of to commit a fraud.^* 
 
 Where the substance of the action is in tort, it cannot be defeat- 
 ed by the plea of infancy, though it is in form an action ex contrac- 
 tu, for, as has been seen, an infant is bound by obligations quasi ex 
 contractu, or contracts created by law.^° Thus, if he embezzles or 
 
 31 Ante, p. 490. 
 
 32 Pitts V. Hall, 9 N. H. 441 ; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 
 58 Am. Eep. 53 ; Wallace v. Morss, 5 Hill (N. T.) 391 ; Eckstein v. Frank, 1 
 Daly (N. Y.) 334. 
 
 33 Johnson v. Pie, 1 Lev. 169 (approved by Parke, B., in Price v. Hewett, 
 8 Esch. 146) ; Brooks v. Sawyer, 191 Mass. 151, 76 N. E. 953, 114 Am. St. 
 Rep. 594 ; Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 
 Am. St. Rep. 510; Nash v. Jewett, 61 Vt. 501, 18 Atl. 47, 4 L. R. A. 561, 15 
 Am. St. Rep. 931. See Fer^son v. Bobo, 54 Miss. 121. Infants are not liable 
 in tort to company which sold them motorcycles for deceit arising from false 
 representations as to their age, or for damages. to machines while in their 
 possession and used by them under contracts of sale. Raymond v. General 
 Motorcycle Co., 230 Mass. 54, 119 N. E. 359. 
 
 3* bavage v. Foster, 9 Mod. 35 ; Cory v. Gertcken, 2 Madd. 40 ; Ex parte 
 Unity Joint-Stock Mut. Banking Ass'n, 3 De Gex & J. 63 ; Overton v. Ban- 
 ister, 3 Hare, 503; Ferguson v. Bobo, 54 Miss. 12i; Evans v. Morgan, 69 
 Miss. 328, 12 South. 270; Hayes v. Parker, 41 N. J. Eq. 630, 7 Atl, 511; 
 Schmitheimer v. Eiseman, 7 Bush (Ky.) 298. Contra, Geer v. Hovy, 1 Root 
 (Conn.) 179. And see Sims v. Everhardt, 102 U. S. 300, 26 L. Ed. 87; Brown 
 V. McCune, 5 Sandf. (N. Y.) 224. False representations, kuowii by tho party 
 to whom they were made to be false, will not estop the infant. Charles 
 V. Hastedt, 51 N. J. Eq. 171, 26 ^tl. 564. Mere failure to disclose his age 
 has been held' not to estop a minor from avoiding his contract, even in equity. 
 Baker v. Stone, 136 Mass. 405; Sewell v. Sewell, 92 Ky. 500, 18 S. W. 162, 
 36 Am. St. Rep. 606 ; Oavidson v. Young, 38 111. 145 ; Price v. Jennings, 62 
 Ind. Ill ; Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089. Ferguson 
 V. Bobo, supra, apparently contra, is distinguished" in Brantley v. Wolf 60 
 Miss. 420. 
 
 35 Ante, p. 477. 
 
§§ 223-224) RESPONSIBILITY OP INFANTS FOE CRIME 529 
 
 converts money, the party injured may waive the tort, and maintain 
 assumpsit for money had and received, and infancy will be no de- 
 fense.*" 
 
 RESPONSIBILITY OF INFANTS FOR CRIME 
 
 223. At common law a child under the age of 7 years is conclusively 
 
 presumed to be incapable of entertaining a criminal intent, 
 and cannot commit, a crime. Between the ages of 7 and 14 
 the presumption still exists, but may be rebutted. After 
 the age of 14 he is presumed to have sufficient capacity, 
 and must affirmatively show the contrary. 
 
 224. At common law a boy under the age of 14 is conclusively pre- 
 
 sumed physically incapable of committing rape. In some 
 jurisdictions, though the presumption exists, it may be re- 
 butted. 
 
 The ground of an infant's general exemption from criminal re- 
 sponsibility for his acts is the want of sufficient mental capacity 
 to entertain the criminal intention which is an essential element 
 of every crime. If a cliild, when he commits a wrongful act, is un- 
 ^ der the age of 7 years, not even the clearest evidence — not even his 
 own confession, indeed — will be received on the part of the state 
 to show that he was of a mischievous discretion. Undel- that age 
 he is absolutely irresponsible.*' If, however, he has reached the 
 age of 7, the state is permitted to prove that he was of sufficient 
 capacity to entertain a criminal intention. In the absence of such 
 
 86 Bristow V. Eastman, 1 Esp. 172 ; Elwell v. Martin, 32 Vt. 217. In the 
 latter case the court says: "As infancy does not protect him from the con- 
 sequences of his tortious acts, why should It furnish him with a defense 
 when sued ex contractu, instead of ex delicto? * * * It is not a contract 
 in which he may have been cheated, and against which Infancy shields him, 
 but a willful wrong which he has committed against another, and In which 
 the law implies the obligation to make restitution." And see Shaw v. Coffin, 
 58 Me. 254, 4 Am. Rep. 290. 
 
 37 4 Bl. Comm. 22; 1 Hale, P. O. 26, 27; Clark, Cr. Law, 49; Clark, Cr. 
 Cas. 77; State v. Fisk, 15 N. D. 589, 108 N. W. 485, 11 Ann. Cas. 1061; State * 
 V. Davis, 104 Tenn. 501, 58 S. W. 122 ; United States v. Behrendsohn (D. C.) 
 197 'Fed. 953; Hampton v. State, 1 Ala. App. 156, 55 South. 1018; Beason v. 
 State, 96 Miss. 105, 50 South. 488; People v. Townsend, 3 Hill (N. T.) 479. 
 The statutes In some few states have raised the age of absolute incapacity 
 to 10 years. Angelo v. People, 96 111. 209, 36 Am, Rep. 132; Singleton v. 
 State, 124 Ga. 136, 52 S. E. 156. A child eight years of age cannot be guilty 
 of any crime or misdemeanor. Harrold v. Clinton Gas & Electric Co., 205 111 
 App. 12. 
 
 TiFF.P.«& D.Eel.(3d Ed.)— 34 
 
530 INFANTS (Ch. 14 
 
 proof, he is not responsible, and the proof, to warrant a conviction, 
 must be clear and convincing.'* It has been held that a conviction 
 cannot be had on his own mere naked confession,'" but there are 
 cases holdig the contrary, where the corpus delicti is otherwise 
 proved.*" When a child has reached the age of 14, he is presumed 
 capable of committing crime,*^ and, to escape responsibility, he 
 must affirmatively show want of capacity.*^ In England, a boy of 
 10 years, who, after killing a little girl, hid her body, was held crim- 
 inally liable, because the circumstances showed a mischievous dis- 
 cretion ; *' and a boy of 8 years was hanged for arson.** In this 
 country, a boy of 12 has been hanged for murder.*^ 
 
 There are some exceptions to these rules in case of certain crimes 
 of omission, such as negligently permitting felons to escape, fail- 
 
 ssEex V. Owen, 4 Car. & P. 236; State v. Davis, 104 Tenn. 501, 58 S. W. 
 122 ; State v. FIsk, 15 N. D. 589, 108 N. W. 485, 11 Ann. Oas. 1061 ; Hampton 
 V. State, 1 Ala. App. 156, 55 South. 1018; Gamer v. State, 97 Ark. 63, 132 
 S. W. 1010, Ann. Cas. 19120, 1059; Singleton v. State, 124 Ga. 136, 52 S. E. 
 156 ; Angelo v. People, 96 111. 209, 36 Am. Rep. 132 ; Carr v. State, 24 Tex. 
 App. 562, T S. W. 328, 5 Am. St. Eep. 905 ; State v. Barton, 71 Mo. 288; Wus- 
 nig V. State, 38 Tex. 651 ; People v. Domenico, 45 Misc. Rep. 309, 92 N. T. 
 Supp. 390; Harrison v. State, 72 Ark. 117, 78 S. "W. 763; State v. Adams, 
 76 Mo. 355 ; State v. Fowler, 52 Iowa, 103, 2 N. W. 983. Assault and battery 
 by 12 year old child, State v. Goln, 9 Humph. (Tenn.) 175. See, also, State 
 V. Tice, 90 Mo. 112, 2 S. W. 269 ; State v. Pugh, 52 N. C. 61 ; Hill v. State. 
 63 Ga. 578, 36 Am. Rep. 120. Sale of liquor by child, Com. v. Mead, 10 Allen 
 (Mass.) 398. Burglary by a child undea 13, Simmons v. State, 50 Tex. Or. 
 R. 527, 97 S. W. 1052. To convict an infant under 14 years of homicide, it is 
 necessary to show that he knew or understood the nature and consequence 
 of his act and showed design and malice in its execution. State v. Vineyard, 
 81 W. Va. 98, 93 S. E. 1034. 
 
 39 State V. Aaron, 4 N. J. Law, 231, 7 Am. Dec. 592 ; People v. Domenico, 
 45 Misc. Rep. 309, 92 N. X. Supp. 390. But see Ex parte White, 50 Tex. Or. 
 R. 473, 98 S. W. 850. 
 
 *o State V. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404. And see Fost. Crown 
 Law, 72 ; State v. Bostick, 4 Har. (Del.) 568. 
 
 *i Brown v. State, 47 Tex. Or. R. 326, 83 S. W. 378; Neal v. State (Tex. Cr. 
 App.) 101 S. W. 212 ; Gilchrist v. State, 100 Ark. 330, 140 S. W. 260 ; Hampton 
 v. State, 1 Ala. App. 156, 55 South. 1018; Vinson v. State, 124 Ga. 19, 52 
 S. B. 79. 
 
 42 Irby V. State, 82 Ga. 496; State v. Thrailkill, 78 S. C. 314, 53 S. E. 482; 
 Law v. Com., 75 Va. 885, 40 Am. Rep. 750. His own testimony that he did 
 not know the act was wrong is not enough. State v. Kluseman, 53 Minn 
 541, 55 N. W. 741. 
 
 *3 York's Case, Fost. Crown Law, 70. 
 
 ** Bmlyn on 1 Hale, P. 0. 25. 
 
 40 State V. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404. And see State v. 
 Aaron, 4 N. J. Law, 231, 7 Am. Dec. 592 ; Godfrey v. State, 31 Ala. 323, 70 
 Am. Dec. 494; Martin v. State, 90 Ala. 602, 8 South. 858, 24 Am. St Rep. 844. 
 
§§ 223-224) RESPONSIBILITY OP INFANTS FOR ORIMB 531 
 
 ure to repair highways, etc.; infants being held exempt from re- 
 sponsibility in such case until they reach the age of 21 years, on 
 the ground that until then, not having command of their fortune, 
 they are unable to. do these acts as required by law.*" 
 
 At the common law a boy who has not attained the age of 14 
 years is conclusively presumed not to have sufficient physical ca- 
 pacity to commit the crime of rape.*^ Some of the courts in this 
 country, while they recognize the presumption, hold that it is not a. 
 conclusive presumption, but one that may be rebutted by proof of 
 capacity.*' A boy under the age of 14 may be guilty as principal 
 in the second degree or accessory to the crime committed by an- 
 other, if of sufficient mental capacity to be responsible for hi^ 
 crimes, though lacking in physical capacity to commit the crime 
 himself.*^ 
 
 <e 4 BI. Comm. 22. A minor who has not been Emancipated or is not pos- 
 sessed of property cannot be held criminally liable for failure to support his 
 wife. People v. Todd, 61 Mich. 234, 28 N. W. 79. A minor under 16 cannot 
 be convicted of vagrancy. Johnson v. State, 124 Ga. 421, 52 S. E. 737. Nor 
 can a minor be convicted of seljing mortgaged goods, as he has a right to dis- 
 affirm the mortgage, and In effect does so by the sale. Jones v. State, 31 
 Tex. Or. R. 252, 20 S. W. 578. But he may be held liable in bastardy pro- 
 ceedings. Chandler v. Com., 4 Mete. (Ky.) 66. 
 
 *7 Clark, Cont. 191; Reg. v. Philips, 8 Car. & P. 736; Com. v. Green, 2 
 Pick. (Mass.) 380; McKinny v. State, 29 Fla. 565, 10 South. 732, 30 Am. St. 
 Rep. 140. 
 
 *8WilUams v. State, 14 Ohio, 222, 45 Am. Dec. 536; People v. Randolph,. 
 2 Park. Cr. R. (N. Y.) 174; Heilman v. Com., 84 Ky. 457, 1 S. W. 731, 4 
 Am. St. Rep. 207; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. Rep. 36; 
 State V. Jones, 39 La. Ann. 935, 3 South. 57. 
 
 4 8 1 Hale, P. C. 630; Law v. Com., 75 Va. 885, 40 Am. Rep. 750. 
 
532 PEESONS NON COMPOTES M«)NTIS AND ALIENS CCh. 15 
 
 CHAPTER XV 
 
 PEESONS NON COMPOTES MENTIS AND ALIENS 
 
 225-246. Persons Non Coinpotes Mentis. 
 
 225. In General. 
 
 226. Inquisition. 
 227-228. Guardianship. 
 
 229. Custocly and Support. 
 
 230-234. Contracts. 
 231-234. Ratification and Avoidance of Contracts. 
 
 235. Liability for Torts. 
 
 236-239. Responsibility for Crimes. 
 
 240-241. Capacity to Make a Will, 
 
 242-246. Drunken Persons. 
 242-243. Contracts. 
 
 244. Lial^lity for Torts. 
 
 245. Responsibility for Crimes. 
 
 246. Capacity to Make a Will, 
 247-252. Aliens. 
 
 PERSONS NON COMPOTES MENTIS 
 
 225. A person is non compos mentis who is of ixnsound mind ; the 
 term being a generic one, and including all fornjs of insan- 
 ity. 
 
 Insanity is "a manifestation of disease of the brain, characterized 
 by a general or partial derangement of one or more faculties of the 
 mind, and in whic'h, while consciousness is not abolished, mental 
 freedom is perverted, weakened, or destroyed." ^ The term is used 
 broadly in the law, to denote all kinds of mental alienation, and as 
 synonymous with the phrase "non compos mentis." Colce enumer- 
 ates^ four classes of persons who are deemed in law to be insane 
 or non compos mentis, namely: (1) An idiot or fool natural — that 
 is, a person who has been of unsound mind since his birth; (2) 
 he who was of good and sound mind and memory, but, by the acl 
 of God, has lost it; (3) a lunatic, lunaticus, qui gaudet in lucidis 
 intervallis, who sometimes is of good sound mind and memdry, 
 and sometimes non compos mentis; and (4) one who is non com- 
 
 1 Black, Law Diet. tit. "Insanity"; Ham. Nerv. Sys. 332. A deaf mute is 
 not presumed to be an idiot. Alexier v. Matzke, 151 Mich. 36 115 N W 251 
 123 Am. St. Rep. 255, 14 Ann. Cas. 52. • • . 
 
§ 225) PERSONS NON COMI'OTES MENTIS 533 
 
 pos mentis by his own act, as a drunkard.^ The last class will be 
 considered separately, for drunkenness is not generally understood 
 as a phase of insanity in law, and in many respects the rules relat- 
 ing to insanity do not apply in the case of drunkenness. 
 
 The status of an insane person is peculiar. As ah incompetent 
 person he is subject to the control of, and entitled to protection by, 
 the state. As he is lacking in mind, he can do no act which requires 
 an intelligent mental operation." In the following sections we shall 
 consider his capacity to contract, his capacity to make a will, his 
 liability for torts, and his responsibility for crime. 
 
 2 Black, Law Diet. tit. "Non Compos Mentis" ; Co. Litt. 247a ; In re Bever-' 
 ley, 4 Coke, 124 ; Johnson v. Phifer, 6 Neb. 404 ; Somers v. Pumphrey, 24 
 Ind. 231. Drunkenness Is not In itself, necessarily a species of Insanity. 
 Searles v. Northwestern Mut. Life Ins. Co. of Milwaukee, 148 Iowa, 65, 126 
 N. W. 801, -29 Lf. R^ A. (N. S.) 405. "The most common forms in which it 
 [insanity] presents itself are those- of mania,' monomania, and dementia. 
 All these imply a derangement of the faculties of the mind from their normal 
 or natural condition. Idiocy, which is usually classed under the general 
 designation of 'Insanity,' is more properly the absence of mind than the de- 
 rangement of its faculties. It is congenital — that is, existing in birth — and^ 
 eonsis'ts not in the loss or derangement of the mental powers, but In the 
 destitution of pov.ers never possessed. Mania Is that form of insanity where 
 the mental derangement is accompanied with more or less of excitement. 
 Sometimes the excitement amounts to a fury. The individual in such cases 
 is subject to hallucinations and illusions. He is Impressed with the reality 
 of events whch have never occurred, and of things which do not exist, and . 
 acts more or less in conformity with his belief in these particulars. The 
 mania may be general, and affect all or most of the operations of the mind ; 
 or it may be partial, and be confined to particular subjects. In the latter 
 case it Is generally termed 'monomania.' Dementia is that form of insanity 
 where the mental derangement is accompanied with a general enfeeblement 
 of the faculties. It is characterized by forgetfulness, inability to follow any 
 train of thought and Indifference to passing events. .'In dementia,' says Eay, 
 a celebrated writer on medical jurisprudence, 'the mmd is susceptible of only 
 feeble and transitory impressions, and manifests but little reflection even 
 upon these. They come and go without leaving any trace of their presence 
 behind them. The attention is Incapable of more than a momentary effort, 
 one idea succeeding another with but little connection or coherence. The 
 mind has lost the power of comparison, and abstract ideas are utterly be- 
 yond its grasp. The memory is peculiarly weak, events the most recent and 
 most nearly connected with the individual being rapidly forgotten. The 
 language of the demented is not only Incoher^ent, but they are much Inclined 
 to repeat Isolated words and phrases without the slightest meaning.'" Per 
 Field, C. J., In Hall v. Unger, Fed. Oas. No. 5,949. 
 
 3 An Insane person has no power to appoint an agent. Amos v. American 
 Trust & Savings Bank, 125 111. App. 91, affirmed 221 lU. 100,. 77 N. E. 462; 
 Gillet V. Shaw, 117 Md. 508, 83 Atl. 394, 42 L. R. A. (N. S.) ST. 
 
534 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 INQUISITION 
 
 226. The mode of ascertaining the insanity of a person is by a com- 
 mission in lunacy in the nature of a writ de lunatico in- 
 quirendo. 
 
 In England commissions in the nature of writs de lunatico inqui- 
 rendo issue in chancery on the petition of the Attorney General or 
 a friend of the insane person. The practice is substantially tKe 
 same in American courts of chancery or probate having insanity 
 jurisdiction.* The purpose of the commission is to determine, first, 
 whether the subject of the inquiry is a lunatic or not, and, if he is 
 fpund to be a lunatic, then to provide for the safeguarding of both 
 his person and his property.' The proceeding may be instituted 
 by a relative of the person," the commonwealth's attorney,^ but not 
 by a mere stranger,* unless authorized by statute." 
 
 The inquisition is conclusive of the insanity of the person at the 
 time of the finding,^" but not of the existence of insanity at a later 
 
 i Burke V. Wlheaton, 3 Cranch, C. C. 341, Fed. Cas. No. 2.164 ; Halett v. 
 Patrick, 49 Cal. 590; Hogg v. Board of Com'rs of San MSguel County, 57 Colo. 
 463, 141 Pac. 478 ; Ex parte Scudamore, 55 Fla. 211, 46 South. 279 ; Ex parte 
 Zorn, 241 Mo. 2G7, 145 S. W. 62; Cox t. Osage County, 103 Mo. 385, 15 S. 
 W. 763. It is held in some states that the court has no jurisdiction where 
 the insane person is a nonresident, though temporarily within the iuris- 
 fllction of the court. State v. Servier, 136 La. 45, 66 South. 392; Laird 
 V. Dlckirson, 241 lU. 380, 89 N. E. 795. But In Chaloner v. Sherman, 
 215 Fed. 867. 132 C. O. A. 96, affirmed in 242 U. S. 455, 37 Sup. Ct. 136, 
 61 L. Ed. 427, it was held that, where the Insane person is physically 
 present in the state, the court has jurisdiction, though he is a Resident 
 of another state. In Hundley v. Sumrall, 144 Ky. 73, 137 S. W. 842, It 
 was held that, where an insane person confined in a sanitarium in another 
 state had property in Kentucky, the courts of the latter state had jurisdic- 
 tion to appoint a committee to take charge of the estate. And see Carter 
 V. Bolster, 122 Mo. App. 135, 98 S. W. 105. 
 
 In re Misselwitz, 177 Pa. 359, 35 Atl. 722. 
 
 8 Treasurer of Insane Hospital v. Belgrade, 35 Me. 497 ; State ex rel. 
 Gardiner v. Dickman, 175 Mo. App. 543, 157 S. W. 1012; In re Hannah, 76 
 N. J. Eq. 237, 73 Atl. 849. 
 
 7 Coleman v. Commissioners of Lunatic Asylum, 6 B. Mon. (Ky.) 239. 
 
 s In re Covenhoven, 1 N. J. Eq. 19. 
 
 Jessup V. Jessup, 7 Ind. App. 573, 34 N. E. 1017 ; Gerke v. Colonial Trust 
 Co., 117 Md. 579, 83 Atl. 1092 ; Bauiii v. Greenwald, 95 Miss. 765, 49 South. 
 836; In ro Burke, 125 App. Div. 889, aiO N. Y. Supp. 1004. 
 
 10 Soules T. Eobinson, 158 Ind. 97, 62 N. E. 999, 92 Am. St. Rep. 301; 
 Logan V. Vanarsdall (Ky.) 110 S. W. 821. It Is, however, questionable wheth- 
 er the adjudication is conclusive as against strangers to the proceedings. 
 
§§ 227-228) GUARDIANSHIP 535 
 
 time,^^ though it does substitute for the general presumption of 
 sanity a presumption of insanity.^" The adjudication is not conclu- 
 sive as to the existence of insanity prior to the time of the find- 
 ing; ^^ but, if the inquiry covered the anterior period, it raises a 
 presumption of prior insanity.^* 
 
 GUARDIANSHIP 
 
 227. The guardianship of persons non compotes mentis is provid- 
 
 ed for by statute in most jurisdictions. Generally the pro- 
 bate or some similar court is given the power to appoint a 
 guardian or committee of the persons and estates of insane 
 persons; and in some states the power is extended to in- 
 clude drunkards or spendthrifts. 
 
 228. The guardieuiship of persons non compotes mentis is governed 
 
 by substantially the same rules of law as the guardianship 
 of infants. 
 
 The crown as parens patriae had authority over the care and cus- 
 tody of infants, but this authority did not originally extend to per- 
 sons non compotes mentis. It was, however, conferred on the 
 crown by Parliament, and intrusted under the sovereign's sign 
 manual to the Lord Chancellor.^^ In this country, the guardianship 
 of persons non compotes mentis is regulated by statute, jurisdiction 
 being generally conferred on the probate or other similar court. 
 Guardianship over spendthrifts was unknown at common law, but 
 
 Hill V. Day, 34 N. J. Eq. 150 ; Slaughter v. Heath, 127 Ga. 747, 57 S. B. 69, 
 27 L. R. A. (N. S.) 1. 
 
 11 Lucas V. Parsons, 23 6a. 267; Clark's Ex'r v. Trail's Adm'rs, 1 Mete. 
 (Ky.) 35 ; Johnson's Committee v. Mitchell, 146 Ky. 382, 142 S. "W. 675. An in- 
 quest of lunacy is conclusive as to subsequent occurrences only when made so 
 by statute. In ,re Weedman's Estate, 254 111. 504, 48 N. E. 956. 
 
 12 Redden v. Baker, 86 Ind. 191; In re Nelson, 148 Iowa, 118, 126 N. W. 
 973, Ann. Cas. 1912B, 974; Ex parte McWilliams, 254 Mo. 512, 164 S. W. 
 221; Mutual Life Ins. Co. of New York v. Wlswell, 56 Kan. 765, 44 Pac. 
 996, 35 L. R. A. 258. 
 
 18 Shirley v. Taylor's Heirs, 5 B. Mon. (Ky.) 99; Sharbero v. Miller, 72 
 N. J. Eq. 248, 65 Atl. 472, affirmed 74 N. J. Eq. 453, 77 Atl. 1088 ; Xlecker v. 
 Zuercher, 54 Tex. Civ. App. 289, 118 S. W. 149. 
 
 1* Small V. Champeny, 102 Wis. 61, 78 N. W. 407; Hughes v. Jones, 110 
 N. T. 67. 22 N. E. 446, 5 L. R. A. 632, 15 Am. St. Rep. 386. 
 
 15 The Legislature is the successor of the crown of England as parens 
 patrise in the case of idiots and lunatics. In re Thaw, 138 App. Div. 91, 122 
 N. X. Supp. 970. 
 
536 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 is not uncommon under statutes in this country. In some juris- 
 dictions a person to whom the court has intrusted the guardianship 
 of an insane person or spendthrift is called a "guardian," while in 
 others he is called a "committee." The principles and rules of law 
 governing the relation of guardian and insane ward are substantial- 
 ly the same as those which govern the relation of guardian and in- 
 fant ward. These have already been explained.^** The effect of 
 guardianship on the capacity of the ward to contract and to make a 
 will will be considered in the following sections.^^ 
 
 CUSTODY AND SUPPORT 
 
 229. The state has power through the courts to control and regu- 
 late the custody of insane persons, to provide for their 
 support, and to enforce the liability therefor. 
 
 While the guardian of an insane person has general custody of 
 the person, and may care for and control him in ordinary circum- 
 stances,^* this power is subject to the general authority of the state, 
 which may, if the public welfare or the welfare of the incompetent 
 demands it, commit the insane person to a proper asylum,^* or in 
 a proper case direct the removal of the person from the state.^" 
 
 Generally the relatives of an indigent insane person are charged 
 by statute with his support,^^ or, if the insane person has a guard- 
 ian, that duty devolves on him.^^ By statute the duty of support- 
 
 is Ante, p. 394. "Post, pp. -542, 552. 
 
 18 State V. Lawrence, 86 Minn. 3tO, 00 N. W. 769, 58 L. B. A. 931; Ander- 
 son V. Anderson's Estate, 42 Vt. 350, 1 Am. Rep. 384. 
 
 ii> Brickway's Case, 80 Pa. 65 ; Board qf Com'rs of Madison County v. 
 Moore, 161 Ind. 426, 68 N. E. 905; Ex parte Hai-court, 27 Oal. App. 042, 
 150 Pac. 1001; Baum v. Greenwald, 95 Miss. 765, 49 South. 836; Ex parte 
 Dagley, 35 Okl. 180, 128 Pac. 699, 44 L. R. A. (N. S.) 389; Ex parte Allen, 
 82 Vt. 365, 73 Atl. 1078, 26 K R. A. (N. S.) 232 ; In re Doyle, 17 R. I. 37, 19 
 Atl. 1083. 
 
 2 Parsee Merchant's Case, 11 Abb. Prac. N. S. (N. X.) 209. 
 
 21 "VViatt V. Smith, 89 Cal. 602, 26 Pac. 1071; Wapello County v. Eikelberg, 
 140 Iowa, 736, 117 N. W. 978; Minnehaha County v. Boyce, 30 S. D. 226* 
 138 N. W. 287 ; Richardson v. Stuesser, 125 Wis. 66, 103 N. Wi. 261, 69 L. r! 
 A. 829, 4 Ann. Cas. 784. 
 
 22 Creagh v. Tunstall, 98 Ala. 249, 12 South. 713. Hte is not, however, 
 personally liable, unless he makes himself so by contract. Merrimack Coun- 
 ty V. Kimball, 62 N. H. 67. And see In re Clantou's Estate and Guardian- 
 ship, 171 Cal. 381, 153 Pac. 459. 
 
§ 230) mSANE PERSONS — CONTRACTS 537 
 
 ing insane persons is under certain conditions imposed on the pub- 
 lic authorities.** 
 
 CONTRACTS OF INSANE PERSONS 
 
 230. As a general rule, a contract entered into by a person when he 
 is so insane as to be incapable of understanding its nature 
 and effect is voidable at his option. The rule is subject, 
 however, to the following exceptions : 
 
 (a) The following contracts are valid and binding : 
 
 (1) Contracts created by law, or quasi contracts, 
 
 (2) Contracts for necessaries furnished to himself, or, by the 
 
 weight of authority, to his wife or children. 
 
 (3) In most, but not all, jurisdictions, where the other party 
 
 to the contract acted fairly and in good faith, without 
 actual or constructive knowledge of the other's insan- 
 ity, and the contract has been so far executed that he 
 cannot be placed in statu quo. 
 
 (b) The following contracts are absolutely void: 
 
 (1) In most, but not all, jurisdictions, contracts by a person 
 
 who has been judicially declared insane, and placed 
 under guardianship. 
 
 (2) In a few jurisdictions, deeds and powers of attorney or 
 
 other appointments of an agent. 
 
 It was at one time said to be a maxim of the common law that 
 no man of full age should be allowed, by plea to stultify himself 
 by pleading insanity, and thereby avoid his deed or contract ; ^* but 
 if this was ever the law, which is very doubtful,''^ it is so no longer. 
 It is universally held that a contract made by a person who is so- 
 lacking in mental capacity from defect or disease of the mind as 
 to be incapable of understanding its nature and effect is, as a gen- 
 eral rule, voidable, at least where the other party knew of his con- 
 dition, and in most cases whether there was such knowledge or 
 
 2 3 The state has the common-law duty of the care and custody of idiots 
 and lunatics, and it is the policy of the state, as shown by its statutes, to 
 appropriate the estates of such persons for their maintenance before they 
 can be supported by the public. State v. Ikey's Estate, 84 Vt. 363, 79 Atl. 850, 
 Ann. Cas. 1918A, 575. 
 
 a-* Veverley's Case, 4 Coke, 123b; Co. Litt. 147; 2 Bl. Comm. 292. 
 
 2 5Fltzh. Nat. Brev. 202; Yates v. Boen, 2 Strange, 1104; Webster v. 
 Woodford, 3 Day (Conn.) 90; Mitchell v. Kingman, 5 Pick. (IVIkss.) 431. 
 
538 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 not.^° The reason is that a contract requires the assent of two 
 minds, and an insane person has no mind, and is therefore incapable 
 of assenting. , 
 
 It makes no difference what the form of the insanity may be, or 
 what caused it.^'^ It must be something more than mere weakness 
 of intellect,^* but' it need not be so great as to dethrone reason, or 
 to amount to an entire want of reason.^" It must be such as to 
 render the person incapalDle of comprehending the subject of the 
 contract, and its nature and probable consequences.^" If the party 
 is insane at times only, the contract, to be voidable, must have been 
 made while he was insane. If made during a lucid interval, it is 
 binding.'^ Permanent insanity need not be shown. It is enough 
 if insanity existed at the time the. contract was made, though the 
 party may have been perfectly sane both before and afterwards.^^ 
 
 2 "Webster v. Woodford, 3 Day (Oonn.) 90: Mitchell v. Kingman, 5 Pick. 
 (Mass.) 431; Rice v. Peet, lo Johns. (N. Y.) 503; Morris v. Clay, 53 N. C. 
 216; Bumham v. Mitchell, 34 Wis. 117; Clark, Cont. 264, and cases there 
 cited. 
 
 27 Idiocy, Bumham v. Kidwell, 113 111. 425; Ball v. Mannin, 3 Bligh ,(N. 
 S.) 1 ; Ewell, Lead. Oas. 534. Lunacy, Jackson v. Gumaer, 2 Cow. (N. Y.) 552. 
 Senile dementia, Stone v. Wllbem, 83 111. 105; Jeneson v. Jeneson, 66 111. 
 259; Guild y. Hull, 127 111. 523, 20 N. B. 665 ; Lynch v. Doran, 95 Mich. 395,. 
 54 N. W. 882; Arnold v. Whitcomb, 83 Mich. 19, 46 N. W. 1029; Keeble v. 
 Cummins, 5 Hayw. (Tenn.) 43; Clark, Cont. 264, 265, and cases there cited. 
 
 2 8 Diennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97; Saffer v. Mast, 223 
 111. 108, 79 N. E. 32; Miller v. Craig, 36 IIJ. 110; Stone v. Wilbern, 83 
 111. 105; Guild v. Hull, 127 111. 523, 20 N. E. 665; Simonton v. Bacon, 49 
 Miss. 582; Lawrence v. Willl.s, 75 N. O. 471; Farnam v. Brooks, 9 Pick. 
 (Mass.) 212; West v. Russell, 48 Mich. 74, 11 N. W. 812; Davis v. Phillips, 
 85 Mich. 198, 48 N. W. 513; Clark, Cont. 265, and cases there cited. So, 
 where a person is not entirely without understanding, and makes a con- 
 tract, comprehending its full force and effect, and no fraud or deceit has 
 been practiced upon him, such a contract will not be rescinded. RatlifC v. 
 Baltzer-s Adm'r, 13 Idaho, 152, 89 Pac. 71. 
 
 2 9 Ball V. Mannin, 3 Bligh (N. S.) 1; Ewell, I>;ad. Cas. 534. 
 
 so bennett v. Dennett, 44 N. H. 531, 84 Am. Dtec. 97; Swartwood v. Chance, 
 131 Iowa, 714, 109 N. W. 297 ; Bond v. Bond, 7 Allen (Mass.) 1 ; Brown v. 
 Brown, 10« Mass. 386; Lilly v. Waggoner, 27 111. 396; Baldwin v. Dunton, 
 40 III. 188; Titcomb v. Vantyle, 84 111. 371; Perry v. Pearson, 135 111. 218, 
 25 N. E. 636; Bumham v. Mitchell, 34 Wis. 136; Clark, Cont 266, 267, and' 
 cases there cited. 
 
 31 Hall V. Warren, 9 Ves. 605; Critchfield v. Easterday, 26 App. D. C. 89; 
 Lilly V. Waggoner, 27 111. 395 ; MkrCormick v. Littler, 85 111. 62, 28 Am. Rep'. 
 610; Beckwith v. Butler, 1 Wash. (Va.) 224; Carpenter v. Carpenter, 8 
 Bush (Ky.) 283 ; Staples v. Wellington, 58 Me. 453 ; Clark, Oont. 266. As to 
 burden of proof in such cases, see cases cited in Clark, Cont. 266. note 201. 
 
 3 2 Curtis V. Brownell, 42 Mich. 165, 3 N. W. 936; Poaslee v. Bobbins, 'i 
 Meto. (Mass.) 1G4; Jenners v. Howard, 6 Blackf. (Ind.) 240. 
 
§ 230) INSANE PERSONS — CONTRACTS 539 
 
 Neither need it be shown that the insanity was general. A person 
 who is laboring under an insane delusion is incapable of making 
 a contract if his delusion is so connected with the subject-matter of 
 the particular contract as to prevent him from comprehending its 
 nature and probable consequences. If such was his condition, he 
 may avoid the contract, though he may have been perfectly sane 
 in respect to other matters, and might have been able to make a 
 binding contract in reference to some other subject-matter.^' The 
 delusion must have been so connected with the subject-matter of 
 the contract to avoid it.** 
 
 Whether Contracts are Void or Voidable 
 
 It has been held by some courts that the deed of an insane per- 
 son,''' or a power of attorney or other appointment of an agent,'" 
 or the transfer of a note,'^ is absolutely void and of no effect what- 
 ever. In most states however, no distinction is made in this respect 
 between the deed of an infant and that of an insane person, or be- 
 tween the deed of an insane person and any other kind of contract ; 
 and it is held to be simply voidable.'* As a general rule, almost 
 
 3 3 Bond V. Bond, 7 Allen (Ma.ss.) 1 ; Kiggs v. American Tract Soc,, 95 N. Y. 
 503 ; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97 ; Searle v. Galbraith, 
 73 III. 269; Alston v. Boyd, 6 Humph. (Tenn.) 504; Samuel v. Marshall, 3 
 Leigh (Va..) 567 ; Boyce's Adm'r v. Smith, 9 Grat. (Va.) 704, 60 Am. Dee. 313 ; 
 West V. Eussell, 48 Mich. 74, 11 N. W. 812. 
 
 »* Boyce's Adm'r v. Smith, 9 Grat (Va.) 704, 60 Am. Dec. 313. 
 
 ssvan Deusen v. Sweet, 51 N. Y. 378; BJogers v. Blackwell, 49 Mich. 192, 
 ' 13 N. W. 512; Lewis v. Alston, 176 Ala. 271, 5S South. 278; McEvoy v. 
 Tucker, 115 Ark. 430, 171 S. W. 888 ; Bowman v. Wade, 54 Or. 347, 103 Pac. 
 72; In re Desilver's Estate, 5 Rawle (Pa.) Ill, 28 Am. Dec. 645; Barley v.' 
 Parker, 6 Or. 105, 25 Am. Rep. 504 ; Elder v. Schumacher, 18 Colo. 438, 33 
 Pac. 175. 
 
 38 Dexter v. Hiall, 15 Wall. 9, 21 L. Ed. 73; Amos v. American Trust & Sav- 
 ings Bank, 125 111. App. 91, decree affirmed 221 111. 100, 77 N. E. 462 ; Daily 
 Telegraph Newspaper Co. v. McLaughlin, 73 Law J. P. O. 95, [1904] App. Cas. 
 776, 91 Law T. 233, 20 Times Law E. 674. 
 
 37 Walker v. Wiinn, 142 Ala. 560, 39 South. 12, 110 Am. St. Rep. 50, 4 Ann. 
 Cas. 537. 
 
 38 Hlovey v. Hcbson, 53 Me. 451, 89 Am. Dec. 705 ; Katliffi v. Baltzer's 
 Adm'r, 13 Idaho, 152, 89 Pac. 71; De Vries v. Crofoot, 148 Mich. 1S3, 111 
 N. W. 775 ; Wait v. Maxwell, 5 Pick. (Mass.) 217, 16 Am. Dec. 391 ; Vogel v. 
 Zuercher (Tex. Civ. App.) 135 S. W. 737 ; Beeson v. Smith, 149 N. C. 142, 62 S. 
 B. 888 ; Smith v. Eyan, 191 N. Y. 452, 84 N. E. 402, 19 L. R. A. (N. S.) 461, 123 
 Am. St. Rep. 609, 14 Ann. Cas. 505, reversing 116 App. Div. 397, 101 N. Y. 
 Supp. 1011; Wolcott.v. Connecticut General Life Ins. Co., 137 Mich. 309, 
 100 N. W. 569 ; Key's Lessee v. Davis, 1 Md. 32 ; Gibson v. Soper, 6 Gray 
 (Mass.) 279, 60 Am. Dec. 414; Allis v. Billings, 6 Mete. (Mass.) 415, 39 Am. 
 Dec. 744; Evans v. Horan, 52 Mid. 602; Bumham v. Kidwell, 113 111. 425; 
 
540 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 universally recognized, all his contracts other than such as the 
 law holds binding upon him are not void, but simply voidable at his 
 option.^" They are binding on the sane party if the insane party 
 chooses to hold him.*" 
 
 Valid Contracts — Quasi Contracts 
 
 Some contracts are binding upon an insane person. As in the 
 case of an infant, the rule that a person may avoid a contract made 
 by him while insane does not apply to contracts created by law, for 
 in these contracts the obligation is imposed by law without regard 
 to the consent of the party bound. *^ 
 
 Same — Necessaries 
 
 Nor does the rule apply to the contracts of an insane person for 
 necessaries furnished to him or his wife, or, by the' weight of au- 
 thority, to his children.*^ The rules as to necessaries are substan- 
 tially the same as in the case of an infant's contracts for necessaries, 
 except, it seems, that, unlike an infant, an insane person is liable 
 for labor and materials furnished for the necessary preservation 
 of his estate.*' In all cases, to render the insane person liable, the 
 credit must have been given to him, and not to some thipd person. 
 If it is otherwise, no contract will be implied.** The fact that the 
 
 Snowman v. Herrlck, 111 Me. 587, 90 Atl. 479 ; Green v. Hulse, 57 Colo. 238, 
 142 Pac. 416; Jordan v. KirlcpatricU, 159 111. App. 231, affirmed 251 111. 
 116, 95 N. E. 1079; Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716; 
 Boyer v. Berryman. 123 Ind. 451, 24 N. E. 249; Somers v. Pnmplirex, 24 
 Ind. 234; Breekenridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 245, 19 
 Am. Dee. 71; Allen v. BerryMll, 27 Iowa, 534, 1 Am. Rep. 309. 
 
 3 9 See cases cited in the preceding note. And see, also. Carrier v. Sears, 
 4 Allen (Mass.) 336, 81 Am. Dec. 707; Chew v. Bank of Baltimore, 14 Md. 
 318; Burke v. Allen, 29 N. H. 106, 61 Am. Dec. 642; Arnold v. Richmond 
 Iron Works, 1 Gray (Mass.) 434; Riley v. Carter, 76. Md. 581, 25 Atl. 667, 19 L. 
 R. A. 489, 35 Am. St. Rep. 443. 
 
 *o Harmon' v. Harmon (C. C.) 51 Fed. 113; Allen v. Berry hill, 27 Iowa, 
 534, 1 Am. Rep. 309. 
 
 41 Reando v. Misplay, 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13. 
 
 42 Read v. Legard, 6 Exch. 636 ; State Commission in Lunacy v. Eldridge, 
 7 Cal. App. 298, 94 Pac. 597, 600; Key v. Harris, 116 Tenn. 161, 92 S. W. 235, 8 
 Ann. Gas. 200; Smith's Committee v. Forsythe, 90 S. W. 1075, 28 Ky. Law 
 Rep. 1034 ; Hancock v. Haile (Tex. Civ. App.) 171 S. W. 1053 ; Ratliffi v. Balt- 
 zer's Adm'r, 13 Idaho, 152, 89 Pac. 71; La Rue v. Gilkyson, 4 Pa. 375, 45 Am. 
 Dec. 700; Richardson v. Strong, 35 N. C. 106, 55 Am. Dec. 430 ; McCormick v. 
 Littler, 85 111. 62, 28 Am. Rep. 610 ; Van Horn v. Hann, 39 N. J. Law, 207 ;' 
 Shaw V. Thompson, 16 Pick. (Mass.) 198, 26 Am. Dec. 655; Sawyer v. Lufkin, 
 56 Me. 308 ; Sceva v. True, 53 N. H. 627 ; Clark, Cont. 267. 
 
 4 s Williams v. Wentworth, 5 Beav. 325. 
 
 44 Massachusetts General Hospital v. Fairbanks, 129 Mass. 78, 37 Am. Rep. 
 303 ; Id., 182 Mass. 414. 
 
§ 230) INSANE PERSONS — CONTRACTS " 541 
 
 party has been judicially declared insane, and placed under guard- 
 ianship, does not affect the question of his liability for what are in 
 fact necessaries. *° The liability of an insane person for necessaries, 
 like the liability of an infant, is not a strictly contractual obligation. 
 It is imposed by law, and is' quasi contractual.*" 
 Same — Ignorance of Insanity and Good Faith of the Other Party 
 
 By the weight of actual decision, where a contract with an insane 
 person has been executed in part, and the other party, cannot be 
 placed in statu quo, it will be enforced, unless it is shown that he 
 did not act in good faith, or that he knew of the other's condition. 
 The leading case holding this doctrine is Molton v. Cam^ux,*' an 
 English case. In this case an insane person had purchased annui- 
 ties of a society, paid the money, and died, whereupon his admin-, 
 istratrix sued the society to recover back the money paid it, on the 
 ground that the contract was void. The jury found that at the time 
 of the contract the deceased was insane, but that there was nothing 
 to indicate this to the society, and that the transaction was in good" 
 faith; and it was held that the money could not be recovered. 
 "The modem cases show," it was said, "that when that state of mind 
 was unknown to the other contracting party, and no advantage was 
 taken of the lunatic, the defense cannot prevail, especially where 
 the contract is not merely executory, but executed in whole or in 
 part, and the parties cannot be restored to their original posi- 
 tions." ** If the lunatic has received no benefit under the contract, 
 
 45 McCrlllis V. Bartlett, 8 N. H. 569; Sawyer v. Lufkin, 56 Me. 308; Keando 
 V. Misplay, 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13 ; Frultt v. Anderson, 12 
 111. App. 421. One who furnishes necessaries to a lunatic and his family may 
 recover their value, even though he knew the lunatic's mental condition. 
 Smith's Committee v. Forsythe, 90 S. W. 1075, 28 Ky. Law Rep. 1034. 
 
 *8 Sceva v; True, 58 N. H. 627; Hartley v. Hartley's Estate, 173 Mo. App. 
 18, 155 S. "W. 1099; RatlifC v, Baltzer's Adm'r, 13 Idaho, 152, 89 Pac. 71. 
 
 47 2 Exch. 489; 4 Exeh. 17. 
 
 4S See, also, Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599; Kent v. La 
 Rue, 136 Iowa, 113, 113 N. W. 547; Baton v. Eaton, 37 N. J. Law, 108, 18 Am. 
 Rep. 716 ; National Metal Edge Bos Co. v. Vanderveer, 85 Vt. 488, 82 Atl. 837, 
 42 L. B. A. (N. S.) 343, Ann. Cas. 1914D, 865 ; Walton v. Malcolm, 264 111. 389, 
 106 N. E. 211, Ann. Cas. 1915D, 1021 ; Mutual Life Ins. Co. v. Hunt, 79 N. T. 
 541 ; Ingraham v. Baldwin, 9 N. Y. 45 ; Shoulters v. Allen, 51 Mich. 529, 16 N. 
 W. 888 ; Scanlan v. Cobb, 85 111. 296 ; Bumham v. Kidwell, 113 111. 425 ; Mc- 
 Cormick v. Littler, 85 111. 62, 28 Am. Rep. 610; Studabaker v. Faylor, 170 Ind. 
 498, 83 N. E. 747, 127 Am. St. Rep. 397 ; Boyer v. Berryman, 123 Ind. 451, 24 
 N. B. 249; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Wilder v. Weakley's 
 Estate, 34 Ind. 181 ; Northwestern Mutual Fire Ins. Co. v. Blakenship, 94 Ind. 
 539, 48 ,An^. Rep. 185; Barkley v. Barkley, 182 Ind. 322, 106 N. B. 609, L. R. 
 
542 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 it has been held that this doctrine does not apply, and that he can 
 recover what he has parted with, notwithstanding the other party's 
 good faith.*" 
 
 Some courts have refused to recognize the doctrine of Molton 
 V. Camroux, but, on the contrary, hold that, even though a contract 
 with an insane person has been executed in whole or in part, it 
 may, nevertheless, be avoided by the insane party, though it was 
 entered into by the other party in perfect good faith, and in igno- 
 rance of the insanity, and though the parties cannot be placed in 
 statu quo. In Seaver v. Phelps,"" for instance, it was held by the 
 Massachusetts court that, in trover for, a iiote pledged to the de- 
 . fendant by the plaintiff while insane, it was no defense that the 
 defendant, when he took the note, did not know the plaintiflf was 
 insane, and had no reason to suspect it, and did not practice any 
 fraud or unfairness. "The fairness of the defendant's conduct," 
 it was said, "cannot supply the plaintiff's want of capacity." 
 
 Insane Persons under Giucrdianship . 
 
 In some states it is provided by statute, and in others it is held 
 independently of any statute, that where a person has been judicial- 
 ly determined to be insarie, under a regular inquisition, and placed 
 under guardianship, his contracts while under guardianship are 
 absolutely void, and that no inquiry can be made into the question 
 whether he was in fact insane or not.°^ In other states it has been 
 
 A. 1915B, 678; Smith v. Ryan, 191 N. Y. 452, 84 N. E. 402, 19 L. R. A. (N. S.) 
 461, 123 Am. St. Rep. 609, 14 Ann. Cas. 505, reversing 116 App. Div. 397, 101 
 N. Y. Supp. 1011 ; Seals y. See, 10 Pa. 56, 49 Am. Dec. 573 ; Lancaster Coun- 
 ty Nat. Bank v. Moore, 78 Pa. 407, 21 Am. Rep. 24 ; Lincoln v. Buckmaster, 32 
 Vt. 652; Young v. Stevens, 48 N. H. 136, 2 Am. Rep. 202, 97 Am. Dec. 592; 
 Schaps V. Lehner, 54 Minn. 208, 55 N. "W. 911 ; Abbott v. Creal, 56 Iowa, 175, 
 9 N. W. 115 ; Behrens v. McKenzie, 23 Iowa, 333, 92 Am. Dec. 428 ; Grlbben v. 
 Maxwell, 34 Kan. 8, 7 Pac. 584, 55 Am. Rep. 233 ; Myers v. Knabe, 51 Kan. 720, 
 33 Pac. 602 ; Matthiessen & Weicbers Refining Co. v. McMabon's Adm'r, 38 N. 
 J. Law, 536 ; Carr v. Holliday, 21 N. C. 344 ; Rlggan v. Green, 80 N. G. 236, 30 
 Am. Rep. 77. Contracts of a lunatic, founded on an adequate consideration, of 
 whicb the lunatic has had the benefit, and made by the other party without 
 fraud or undue influence and in good faith, in ignorance of the mental condi- 
 tion of the lunatic, and before any inquisition of lunacy has been had, will 
 be upheld where the parties cannot be placed in statu quo. D. M. Smith's 
 Committee v. Forsythe, 90 S. W. 1075, 28 Ky. Law Rep. 1034. 
 
 4» Lincoln v. Buckmaster, 32 Vt. 658 ; Van Patton v. Beals, 46 Iowa, 63. 
 
 oo 11 Pick. 304, 22 Am. Dec. 372. And see Anglo-Calif ornian Bank v. Ames 
 (C. C.) 27 Fed. 727; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Fitzgerald 
 T. Reed, 9 Smedes & M. (Miss.) 94; Svaiivan v. Flynn, 20 D. C. 396. 
 
 Bi Wait V. Maxwell, 5 Pick, (Mass.) 217, 16 Am. Dec. 391; Leonard v. Leon- 
 
§§ 231-234) msANE persons — contracts 543 
 
 held that an adjudication of lunacy and guardianship only raise a 
 presumption of incapacity to contract,' which may be rebutted by 
 clear proof of capacity."" To bring a case within the doctrine first . 
 stated above, there must not only have been an adjudication of 
 lunacy, but the lunatic must be actually under guardianship wheii 
 the contract is made. For instance, it has been held that if the 
 guardian is discharged as being an unsuitable person, and no 
 other guardian is appointed, the adjudication is not conclusive as 
 to incapacity after the guardian's discharge."^ As has been stated, 
 the fact that an insane person is under guardianship does not affect 
 his liability for necessaries."** 
 
 SAME— RATIFICATION AND AVOIDANCE OF 
 CONTRACTS 
 
 231. The voidable contract of an insane person may be ratified or 
 
 disaffirmed by himself when sane, or by his guardian dur- 
 ing insanity, or by his personal representatives or heirs 
 after his death. 
 
 232. By the weight of authority, the right to disaffirm is personal to 
 
 the insane party or his representatives, and does not ex- 
 tend to the other party or to strangers. 
 
 233. In a few jurisdictions the fconsideration received by the insane 
 
 person need not be returned as a condition precedent to 
 avoidance if he is unable to return it, but the weight of 
 authority is the other way. In all jurisdictions it must be 
 returned if it can be. 
 
 ayd, 14 Pick. (Mass.) 280; Rannells v. Gemer, 80 Mo. 474; Fltzhugh v. Wilcox, 
 12 Barb. (N. T.) 235 ; . Oliurch v. Eosenstein, 85 Conn. 279, 82 Atl. 568 ; Burge- 
 dorf V. Hamer, 95 Neb. 113, 145 N. W. 250; Bradbury v. Place (Me.) 10 Atl. 
 461; Molir v. Tulip, 40 Wis. 66; Knox v. Haug, 48 Minn. 58, 50 N. W. 934; 
 Griswold v. Butler, 3 Conn. 227. 
 
 S2 See Mott V. Mott, 49 N. J. Eq. 192, 22 Atl. 997; Hart v. Deamer, 6 Wend. 
 (N. T.) 497 ; Parker v. Davis, 53 N. C. 460 ; Hopson v. Boyd, 6 B. Mon. (Ky.) 296 ; 
 Snook V. Watts, 11 Beav. 105; In re Gangwere's Estate, 14 Pa. 417, 53 Am. 
 Dec. 554. It may be shown that contract was made during a lucid interval. 
 Stitzel T. Farley, 148 III. App. 635. The acts of an adult incompetent under 
 guardiamship are legal, if beneficial to him and not prohibited by statute. 
 Taylor v. Superior Court, 30 R. I. 560, 76 Atl. 644. 
 
 5s Willwertb v. Leonard, 156 Mass. 277, 31 N. E. 299. 
 
 s* Ante, p. 540. 
 
544 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 234. In most jurisdictions the right of disaffirmance can be exer- 
 cised against bona fide purchasers of land or goods sold by 
 the inscme person, or of negotiable instruments executed 
 by him. 
 
 The voidable contracts of a person non compos mentis may be 
 ratified or disaffirmed by him when he becomes sane, or during a 
 lucid interval ; °° or, during the continuance of his infirmity, by his 
 committee or guardian; =' or, after his death, by his personal rep- 
 resentative ■*' or his heirs.^^ The privilege is personal to the in- 
 sane person, or those who thus represent him ; and neither the oth- 
 er party to the contract nor third persons can avoid it.'° Ratifica- 
 tion or disaffirmance need not be in express words, but may be by 
 conduct, as in the case of ratification or disaffirmance by a person 
 of a contract made during infancy. °° 
 
 Return of Consideration on Avoidance 
 
 In tliose jurisdictions "where an insane person's contract is voida- 
 ble, whether it is executed or not, and whether or not the other 
 
 BBAllls V. Billings, 6 Mete. (Mass.) 416, 39 Am. Dec. 744; Gibson v. Soper, 
 6 Gray (Mass.) 279, 66 Am. Dec. 414; Arnold v. Richmond Iron Works, 1 Gray 
 (Mass.) 434; Turner v. Rusk, 53 Md. 65; Spicer v. HolbrooTi, 96 S. W. 571. 29 
 Ky. Law Rep. 865; Merry v. Bergfeld, 264 111. 84, 105 N. B. 758; Lawrence v. 
 Morris, 167 App. Div. 186, 152 N. Y. Supp. 777 ; De Vries v. Crofoot, 148 Mich. 
 183, 111 N. W. 775. Ratification or disaffirmance must be within reasonable 
 time. "West v.. Seaboard Air Line Ry., 151 N. C. 231, 65 S. E. 979 ; Weber y. 
 Bottger, 172 Iowa, 418, 154 N. W. 579. 
 
 6 « Moore v. Hershey, 90 Pa. 196; Halley v. Troester, 72 Mo. 73; McClain v. 
 Davis, 77 Ind. 419. 
 
 67 Beverley's Case, 4 Coke, 123b; Campbell v. Kuhn, 45 Mich. 513, 8 N. W. 
 528, 40 Am. Rep. 479; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705 ; SchufC v. 
 Ransom, 79 Ind. 458. 
 
 5 8 Allis v. Billings, 6 Mete. (Mass.) 415, 39 Am. Dec. 744; Schuffi v. Ransom, 
 79 Ind. 458. 
 
 58 Carrier v. Sears, 4 Allen (Mass.) 336, 81 Am. Dec. 707; Allen v. Berry- 
 hill, 27 Iowa, 534, 1 Am. Rep. 309; ante, p. 537. Contra, Burke v. Allen, 29 
 N. H. 106, 61 Am. Dec. 642. Sureties are liable on a note executed by an in- 
 sane person. Lee v. Tandell, 69 Tex. 34, 6 S. W. 665. One merely in privity 
 of estate with an alleged insane grantor, who was the common source of title, 
 C£innot attack such grantor's deed for alleged incapacity. Porter v. Brooks, 
 (Tex. Civ. App.) 159 S. W. 192. 
 
 6 Gibson v. Soper, 6 Gray (Mass.) 283, 66 Am. Dec. 414; Newton v. Evers, 
 77 Misc. Rep. 619, 137 N. Y. Supp. 507;, Arnold v. Richmond Iron Works, 1 
 Gray (Mass.) 434. Disaffirmance by action to avoid. Hull v. Louth, 109 Ind. 
 315, 10 N. E. 270, 58 Am. Rep. 405; Ashmead v. Reynolds, 127 Ind. 441, 26 N. 
 B. 80. 
 
§§ 231-234) INSANE PERSONS — CONTRACTS 545 
 
 party acted in good faith and in ignorance of his mental infirmity, a 
 person is not required to restore, or offer to restore, the considera- 
 tion received by him as a condition precedent to the avoidance of a 
 deed or other contract made by him while insane, though retention 
 and use of the consideration after restoration to sound mind may, 
 as in the case of infants, furnish evidence of ratification of the con- 
 tract. One of the obvious grounds, it was said by the Massachu- 
 setts court, on which the deed of an insane man or an infant is held 
 voidable, is not merely the incapacity to make a valid sale, but the 
 incapacity prudently to manage and dispose of the proceeds of the 
 sale; and the same incapacity which makes the deed voidable may 
 have wasted the price, and rendered the restoration of the con- 
 sideration impossible. "The law makes this very incapacity of 
 parties their shield. In their weakness they find protection. It 
 will not suffer those of mature age and sound mind to profit by 
 that weakness. It binds the strong while it protects the weak. It 
 holds the adult to the bargain which the infant may avoid ; the sane 
 to the obligation from which the insane may be loosed. It does 
 not mean to put them on an equality. On the other hand, it intends 
 that he who deals with infants or insane persons shall do it at his 
 peril. * * * If the law required restoration of the price as a 
 condition precedent to the recovery of the estate, that would be 
 done indirectly which the law does not permit to be done directly, 
 and the great purpose of the law in avoiding such contracts — ^the 
 protection of those who cannot protect themselves — defeated." °^ 
 As we have already seen, however, most courts do not allow an 
 insane person to avoid his contracts at all where the other party 
 acted in good faith, and in ignorance of his insanity, and cannot be 
 placed in statu quo.*^ 
 
 Avoidance as Against Third Persons 
 
 The fact that third persons have acquired an interest under the 
 contract of a person non compos mentis, in good faith, for value,, 
 and without notice of his infirmity, cannot defeat his right to avoid 
 the contract.*^ This rule applies to deeds °* and negotiable instru- 
 
 61 Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Hovey v. Hobsoa, 
 i53 Me. 453, 89 Am. Dec. 705. 
 
 62 Ante, p. 541. 
 
 83 Hovey v. Hobson, 53 Me. 451, 89 Am., Dec. 705; Hull v. Louth, 109 Ind. 
 315, 10 N. E. 270, 58 Am. Eep. 405; Long v. Fox, 100 111. 43; Rogers v. Black- 
 well, 49 Mich. 192, 13 N. W. 512. 
 
 6-* Rogers v. Blackwell, 49 Mich. 192, 13 N. W. 512. In .North Carolina it 
 TIFF.P.& D.Ebl.(3d Ed.)— 35 
 
546 PBESONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 ments '" as well as to other contracts, and it applies whether the 
 contract be regarded as void or merely voidable. To protect bona 
 fide purchasers in such cases would be to withdraw protection from 
 the insane person. 
 
 LIABILITY OF INSANE PERSON FOR TORTS 
 
 235. An insane person is liable, to the extent of the actual dam- 
 . age, for torts involving no mental element; but he is not 
 liable for torts of which malice is an essential element; nor 
 is he liable for exemplary daipages. 
 
 The general rule is that an insane person is liable for his torts, 
 which involve no mental element, to the extent of the actual dam- 
 age. *° He is liable, for instance, in tort for causing the death of 
 another,'^ for trespass on land,"* for conversion,'" for assault and 
 battery,^" for false imprisonment,'^ for negligence.'^ In a late Ill- 
 inois case it was said: "There certainly can be nothing wrong 
 or unjust in a verdict which merely gives compensation for the ac- 
 
 is Ueld that the deed of a lunatic, duly recorded, cannot be avoided as against 
 bona fide purchasers. Odom v. Riddiek, 104 N. 0. 515, 10 S. E. 609, 7 L. R. A. 
 118, 17 Am. St. Rep. 686. 
 
 65 Anglo-Calif omian Bank v. Ames (C. C.) 27 Fed. 727; Wirebach's Bx'r v. 
 First Nat. Bank, 97 Pa. 543, 39 Am. Rep. 821; MeOlain v. Davis, 77 Ind. 419. 
 
 60 1 Jag. Torts, 154; Weaver v. Ward, Hob. 134; Mclntyre v. Sholty, 121 
 m. 660, 13 N. B. 239, 2 Am. St. Rep. 140 ; Morse v. Crawford, 17 Vt 499, 44 
 Am. Dec. 349; Young v. Young, 141 Ky. 76, 132 s! W. 155; Gibson v. Pollock, 
 179 Mo. App. 188, 166 S. W. 874 ; Behrens v. McKenzie, 23 Iowa, 333, 92 Am. 
 Dec. 428 ; Cross v. Kent, 32 Md. 581 ; and cases hereafter cited. 
 
 67 Mclntyre v. Sholty, 121 III. 660, 13 N. E. 239, 2 Am. St. Rep. 140; Young 
 v. Young, 141 Ky. 76, 132 S. W. 155 ; Ballinger v. Radar, 153 N. C. 488, 69 S. 
 E. 497; Jewell v. Colby, 66 N. H. 399, 24 Atl. 902. 
 
 6 8 Amick V. O'Hara, 6 Blackf. and.) 258. 
 
 6 9 Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349. 
 
 ToTaggard v.. Innes, 12 U. C. O. P. 77; Feld v. Borodofski, 87 Miss. 727, 40 
 'South. 816. 
 
 71 Krom V. Schoonmaker, 3 Barb. (N. Y.) 647. 
 
 '2 Williams v. Hays, 143 N. Y. 442, 38 N. E. 449, 26 U R. A. 153, 42 Am. St. 
 R^ep. 743; Morain v. Devlin, 132 Mass. 87, 42 Am. Rep. 423; Behrens v. Mc- 
 Kenzie, 23 Iowa, 333, 92 Am. Dec. 428. An insane person cannot, however, be 
 held liable for the negligence of his- guardian or committee in the care of the 
 incompetent's property. Reams v. Taylor; 31 Utah, 288, 87 Pac. 1089, 8 L. R. 
 A. (N. S.) 436, 120 Am. St. Rep. 930, 11 Ann. Gas. 51 ; Ward v. Rogers, 51 Misc! 
 Rep. 299, 100 N. Y. Supp. 1058. An insane person is not liable for the tort of 
 an employe of the guardian in operating an automobile, not in the presence of 
 the lunatic. Gillet v. Shaw, 117 Md. 508, 83 Atl. 394, 42 L. R. A. (N. S.) 87. 
 
§ 235) INSANE PERSONS — TORTS 54'^ 
 
 tual loss resulting from an injury inflicted by a lunatic. He has 
 properly no will. His acts lack the dement of intent or intention. 
 Hence it would seem to follow that the only proper measure of 
 damages in an action against him for a wrong is the mere compen- 
 sation of the party injur-ed. Punishnient is not the object of the 
 law when persons unsound in mind are the wrongdoers. There is, 
 to be sure, an appearance of hardship in compelling one to respond 
 for that which he is unable to avoid, for want of the control of rea- 
 son. But the question of liability in these cases is one of public 
 policy. If an insane person is not held liable for his torts, those 
 interested in his estate, as relatives or otherwise, might not have a 
 sufficient motive to so take care of him as to deprive him of oppor- 
 tunities for inflicting injuries on others. There is more injustice in 
 denying to the' injured party the recovery of damages for the wrong 
 suffered by him than there is in calling upon the relatives or frieiids 
 of the lunatic to pay~ the expense of his confinement, if he has an es- 
 tate ample enough for that purpose. The liability of lunatics for 
 their torts tends to secure a more efficient custody and guardianship 
 of their persons. Again, if parties can escape the consequences of 
 their injurious acts upon the plea of 'lunacy, there will be a strong 
 temptation to simulate insanity, with a view of masking the malice 
 and revenge of an evil heart." ^' 
 
 An insane person, being incapable of entertaining malice, cannot 
 commit a tort in which malice is an essential element, like malicious 
 prosecution, libel, and slander.''* As was said by the Indiana court: 
 "Slander must be malicious. An, idiot or lunatic, no matter from 
 what cause he became so, cannot be guilty of malice. He may in- 
 dulge the anger of the brute, but not the malice of one who 'knows 
 better.' " " 
 
 In no case can more than actual damages be recovered frqm a 
 lunatic for his torfs. Exemplary damages being allowed on the 
 ground of malice or evil intent, and an insane person being inca- 
 pable of malice, they can never be recovered.'' 
 
 7 3 Mclntyre v. Sholty, 121 111. 660, 13 N. B. 239, 2 Am. St. Rep. 140. 
 
 74 1 Jag. ' Torts, 157; Gates v. Meredith, 7 Ind. 440; Bryant v. Jackson, 6 
 Humph. (Teim.) 199 ; Hpmer v. Marshall's Adm'x, 5 Munf . (Va.) 466. 
 ^75 Gates V. Meredith, 7 Ind. 440. 
 
 76 1 Jag. Torts, 158; Avery v. Wilson (C. C.) 20 Fed. 856; Krom v. Schoon- 
 maker, 3 Barb. (N. T.) 647 ; Moore v. Home, 153 N. C. 418, 69 S. E. 409, 138 
 Am. St., Rep. 675, 21 Ann. Cas. 1350, 
 
548 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 RESPONSIBILITY OF INSANE PERSON FOR CRIME 
 
 236. Since a criminal intent is an essential element of every crime, 
 
 no person is criminally responsible for an act if, at the 
 time it is committed, he is so insane as to be incapable of 
 entertaining such an intent. 
 
 237. Insanity may have the following effects : 
 
 (a) It may render a person incapable of determining between 
 
 right and wrong, in which case there is no criminal re- 
 sponsibility. 
 
 (b) It may render him incapable of knowing what he is doing 
 
 in the particular instance only, as in the case of insane de- 
 lusions or partial insanity, in which case his responsibility 
 depends upon the facts as they appear to him. 
 
 (c) It may deprive him of freedom of will, as in the case of ir- 
 
 resistible impulses, where the party knows what he is do- 
 ing, but is irresistibly driven to do it. Perhaps most courts 
 refuse to recognize such' a phase of insanity as a ground 
 of exemption ; but, by the better opinion, such an impulse, 
 if shown to have been caused by disease of the mind, does 
 exempt the victim from responsibility. 
 
 238. Moral or emotional insanity, as distinguished from mental, 
 
 does not exempt one from criminal responsibility. 
 
 239. A person cannot be tried if he is insane, though he may have 
 
 been sane when he committed the act, as he is deemed 
 incapable of conducting his defense. Nor can an insane 
 person be sentenced or punished, though he may have 
 been convicted while sane. 
 
 The leading case on the subject of insanity as a defense in crimi- 
 nal prosecutions is McNaghten's Case, which arose in England in 
 1843. '^^ After the defendant had been acquitted in that case on the 
 ground of insanity, the question came up on debate in the House 
 of Lords, and the opinion of the judges was asked. They answered, 
 among other things, that jurors should be told in all cases that 
 every man is to be presumed to be sane, and to possess a sufficient 
 degree of reason to be responsible for his crimes, until the contrary 
 be proved to their satisfaction ; and that to establish a defense on 
 
 " 10 Clark & F. 200. 
 
§§ 236-239) INSANE PERSONS— CRIMES 549 
 
 the ground of insanity, it must be clearly proved (1) that, at the 
 time the act was committed, the accused was laboring under such 
 a defect of reason, from disease of the mind, as not to know the 
 nature and quality of the act he was doing, or, if he did know it, 
 that he did not know he was doing what was wrong ; or (2) that if 
 a person is laboring under a partial delusion, not being in other 
 respects insane, he must be considered in the same situation as to 
 responsibility as if the facts in respect to which the delusion exists 
 were real ; that if, for example, a person, under the influence of his 
 delusion, supposes another man to be in the* act of attempting to 
 take his life, and he kills that man, as he supposes,. in self-defense, 
 he would be exempt from punishment, but if his delusion was that 
 the deceased had inflicted a serious injury to his character and 
 fprtune, and he killed him in revenge for such supposed injury, he 
 would be liable to punishment. 
 
 Inability to Distinguish between Right and Wrong 
 
 This answer of the judges, it will be noticed, holds that a person 
 is not criminally responsible for his act if he was so insane that he 
 did not know the nature and quality of the act, or if he did not 
 know it was wrong. This rule is universally recognized.' ' The 
 incapacity in such cases may arise from idiocy, as well as from 
 mania.'^' The defect of reason need not be general nor permanent. 
 It is enough if the party did not know that the particular act was 
 wrong at the time he committed it, though he may have had his 
 reason shortly before the act, and may have recovered it after- 
 wards, and though he may have been able to distinguish between 
 right and wrong as to other acts. 
 
 Insane Delusions 
 
 The answer of the judges in McNaghten's Case on the question 
 of insane delusions has been since recognized as the law in this 
 country, as well as in England. If, when a man commits an act, 
 he is laboring under an insane delusion as to that particular act, 
 not being otherwise insane, his responsibility depends upon the 
 
 78 Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731 ; Dunn v. People, 109 
 111. 635; Homish v. People, 142 111. 620, 32 N. E. 677, 18 L. E. A. 287 ; Perkins 
 V. United States, 228 Fed. 408, 142 O. 0. A. 638 ; State v. Eiddle, 245 Mo. 451, 
 150 S. W. 1044, 43 L. R. A. (N. S.) 150; Ann. Cas. 1914A, 884 ; Obom v. State. 
 143 Wis. 249, 126 N. W. 737, 31 L. R. A. (N. S.) 966 ; Clark, Cr. Law,, 53, 54, . 
 where cases are collected. 
 
 7 9 Com. V. Heath, 11 Gray (Mass.) 303 ; Ortwein v. Com., 76 Pa. 414, 18 Am. 
 Eep. 420. 
 
550 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 facts as they seemed to him.'" If a man kills another under the 
 insane delusion that the other is attempting to take his life, he is 
 excused. But, where a man killed another under the insane delu- 
 sion that the latter was trying to marry his mother, he was held 
 responsible for the murder, since this fact, even if it really existed, 
 would be no defense.^^ So, where a convict killed a fellow convict, 
 it was rightly held, on the same principle, that a delusion that the 
 deceased had divulged a plan of escape was no defense.'^ 
 
 There must have been an actual delusion, and the act must have 
 been immediately connected with it. If a person knows all the 
 facts as to which he acts, he is not exempt, though he may have 
 had insane delusions as to other facts.^' 
 
 Irresistible Impulse 
 
 Where a person, from disease of the mind, and not from mere 
 moral depravity and long indulgence in vice, is incapable of re- 
 straining himself, many of the courts hold that he is exempt from 
 responsibility, though he may have known that he was doing what 
 was wrong.' In other words^ it is held that a person may know 
 that he is doing wrong when he commits an act, but, by reason of 
 the duress of a mental disease, he may have lost the power to 
 choose between the right and the wrong, and to avoid doing the act, 
 and that when this is shown to be the case, he is not criminally 
 responsible.'* Most of the courts, perhaps, have refused to recog- 
 nize any such ground of exemption, and limit the test of responsi- 
 bility to ability to distinguish between right and wrong.'' If such 
 
 80 McNaghten's Case, 10 Clark & P. 200 ; Hadfleld's Case, 27 How. State Tr. 
 1282; Com. v. Rogers, 7 Mete. (Mass.) 500, 41 Am. Dee. 458; People v. Pine, 2 
 Barb. (N. Y.) 571; State v. Lewis, 20 Nev. 333, 22 Pac. 241; Thurman v. State, 
 32 Neb. 224, 49 N. W. 338 ; Clark, Or. Law, 54, 55, and cases there cited. Par- 
 tial insanity does not excuse, unless the derangement is such that the person is 
 incapable, at the time of committing the act, of distinguishing between the 
 right and the wrong in reference to that particular act. State v. Porter, 213 
 Mo. 43, 111 S. W. 529, 127 Am. St. Rep. 589. And see People v. Willard, 150 
 Cal. 543, 89 Pac. 124. 
 
 81 Boiling V. State, 54 Ark. 588, 16 S. W. 658. 
 
 82 People V. Taylor, 138 N. Y. 398, 34 N. E. 275. 
 
 88 Ereemau v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; Clark, Or. Law, 
 55, and cases there cited. 
 
 8* Clark, Cr. Law, 56, 57, and cases there cited; Parsons v. State, 81 Ala. 
 577, 2 South. 854, 60 Am. Rep. 193 ; Com. v. Rogers, 7 Mete. (Mass.)' 500, 41 
 Am. Dec. 458; People v. Flnley, 38 Mich. 482 ; State v. Jones, 50 N. H. 369, 9 
 Am. Rep. 242; Hopps v. People, 31 111. 385, 83 Am. Dee. 231; Dacey v People 
 116 111. 595, 6 N. B. 165. 
 
 8 6 Clark, Cr. Law, 50, and cases there cited; Reg. v. Stokes, 3 Car. & K. 185- 
 
§§ 236-239) INSANE PERSONS — CRIMES 551 
 
 a condition can exist — and the doctors say that it does — it ought 
 to exempt from responsibility as fully as any other kind of insanity. 
 Great care should be taken in recognizing such a ground of exemp- 
 tion; and it should be clear that the irresistible impulse is due to 
 disease of the mind, and not to moral depravity. 
 
 Moral and Emotional Insanity 
 
 A perverted condition of the moral system is sometimes spoken 
 of as "moral insanity." It is never a ground of exemption from 
 criminal responsibility. Though, from low associations and con- 
 stant indulgence in vice, a man's moral system has become so mor- 
 bid, and his passions so uncontrollable, that his conscience or sense 
 of right and wrong will not restrain him, he is, nevertheless, re- 
 sponsible for his acts, if his mind is sound.'® So, "emotional in- 
 sanity," as it is called, or temporary passion, arising from excite- 
 ment or anger, and not from mental disease, is no defense.*' 
 
 Insaniby after Commission of Crime 
 
 If a person becomes insane after he has committed a crime, this 
 does not render him any the less guilty. But he cannot be arraign- 
 ed and put upon his triaj while he is insane; and if he becomes in- 
 sane after he has been arraigned but before, judgment the trial 
 must end.'* The reason of this is that an insane person cannot 
 properly defend himself. So, if he becomes insane after a convic- 
 tion and sentence, he cannot be punished.*" Such insanity, how- 
 Flanagan Y. People, 52 N. T. 407. 11 Am. Rep. 731; State v.' Harrison, 36 W. 
 Va. 729, 15 S. B. 982, 18 L. E. A. 224; State v. Alexander, 30 S. C. 74, 8 S. E. 
 440, 14 Am. St. Kep. 879; Thomas v. State, 55 Tex. Or. R. 298, 116 S. W. 600; 
 Oborn v. State, 143 Wis. 249, 126 N. W. 737, 31 L. R. A. (N. S.) 966; State v. 
 Riddle, 245 Mo. 451, 150 S. W. 1044, 43 L. R. A, (N. S.) 150, Ann. Oas. 1914A, 
 844. 
 
 88 Clark, Cr. Law, 57, 58, and cases there cited; Flanagan v. People, 52 N. 
 Y. 467, 11 Am. Rep. 731; People v. Finley, 38 Mich. 482; Leaehe v; State, 22 
 Tex. App. 279, 8 S. W. 539, 58 Am; Rep. 638. But see Scott v. Com., 4 Mete. 
 (Ky.) 227, 83 Am. Dec. 461. 
 
 8 7 Clark, Cr. Law, 58, and cases there cited; People v. Mortimer, 48 Mich. 
 37, 11 N. W. 776; People v. Foy, 138 N. X. 664, 84 N. E. 396; Beel v. State, 120 
 Ark. 530, 180 S. W. 186 ; People v. Schmidt, 216 N. Y. 324, 110 N. E. 945, L. R. 
 A. 1916D, 519, Ann. Gas. 1916A, 978, rehearing denied 216 N. Y. 762, 111 N. 
 E. 1095. 
 
 88 In re Wright, 74 Kan. 406, 89 Pac. 678 ; Clark, Cr. Proc. 427, 428, and 
 cases there cited. 
 
 8 9 State V. Snell, 46 Wash. 327, 89 Pac. 931, 9 L. R. A. (N. S.) 1191; Jordan 
 V. State, 124 Tenn. 81, 185 S. W. 327, 34 L. R. A. (N. S.) 1115; Ex parte 
 Wright, 74 ^an. 406, 89 Pac. 678. 
 
552 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 ever, does not prevent his being tried and punished if he subse- 
 quently becomes sane. 
 
 CAPACITY TO MAKE A WILL 
 
 240. A person who is of unsound mind to such an extent as to be 
 
 incapable of comprehending the condition of his property 
 and his relations to the persons who are or might be the 
 objects of his bounty, and of collecting in his mind, with- 
 out prompting, the elements of the business to be trans- 
 acted, and to hold them there until their relation to each 
 other can be perceived, and a rational judgment in respect 
 thereto formed, is incapable of making a will. 
 
 241. A person under guardianship is prima facie wanting in testa- 
 
 mentary capacity, but his will is valid if it be shown that 
 he was in fact of soiuid mind. 
 
 To be capable of making a valid will, a person must be of sound 
 mind. Blackstone says that "mad men, or otherwise non compotes, 
 idiots or natural fools, persons grown childish by reason of old age 
 or distemper, such as have their senses besotted with drunkenness, 
 all these are incapable, by reason of mental disability, to make any 
 will so long as such disability lasts." "" Where it is shown that a 
 testator was an idiot or totally insane, there can be no difficulty in 
 declaring the will void.°^ The question of testamentary capacity, 
 however, is often very difficult, where it is sought to show partial 
 insanity or insane delusions, or to show a slight degree of mental 
 disorder. 
 
 The degree of mental capacity has been variously stated. In a 
 New York case it was said: "The testator should be capable of 
 comprehending the condition of his property, and his relations to 
 the persons who are or might have been the objects of his bounty. 
 He should be able to collect in his mind, without prompting, the 
 elements of his business to be transacted, and hold them there un- 
 til their relations to- each other can be perceived, and a rational 
 judgment in respect thereto be formed." "^ ^nd in a Pennsylvania 
 
 so 2 Bl. Comm. 497. 
 »i Eggers V. Eggers, 57 Ind. 461. 
 
 92 Van Guysling v. Van Kuren, 35 N. Y. 70. And see Converse's Ex'r v. Con- 
 verse, 21 Vt. 168, 52 Am. Dec. 58 ; American Bible See. v. Price, 115 in. 623 5 
 
§§ 240-241) INSANE PERSONS— WILLS 553 
 
 case it was said: "A man of sound mind and disposing memory 
 is one who has a full and intelligent knowledge of the act he is en- 
 gaged in, a full knowledge of the property he possesses, an intelli- 
 gent perception and understanding of the disposition he desires to 
 make of it, and of the persons and objects he desires shall be the 
 recipients of his bounty. It is not necessary that he collect all 
 these in one review. If he understands, in detail, all that he is 
 about, and chooses with understanding and reason between one 
 disposition and another, it is sufficient for the making of a will. If, 
 from any cause, he is so enfeebled in mind as to be incapable of 
 knowing the property he possesses, of appreciating the effect of 
 any disposition made by him of it, and of understanding to whom 
 he intends to bequeath it, he is without the requisite testamentary 
 capacity.^* 
 
 A man is presumed to have been sane until the contrary is 
 proved. Therefore, where a will is proved, and is objected to on 
 the ground of want of mental capacity, the burden of proof is on 
 the contestant.'* But, when settled insanity is proved to have 
 existed prior to the date of the will, its continuance will be pre- 
 sumed, and the burden is on the proponent to show that the will 
 was made in a lucid interval. °° 
 
 If the testator, at the time of making his will, was laboring under 
 an insane delusion as to the natural objects of his bounty, which 
 affected its provisions, it will be held invalid."* Thus, a- will dis- 
 inheriting a son would be invalid if the testator was under an in- 
 sane delusion that the son was not his own. But a delusion not aris- 
 
 N. B. 126; In re Blakely's Will, 48 Wis. 294, 4 N. W. 337; Harrison v. Rowan, 
 3 Wash. c. C. 580. Fed. Cas. No. 6,141; Abb. Desc, Wills & Adm. 227. 
 
 ?3 Wilson V. Mitchell, 101 Pa. 495. And see Shaver v. McCarthy, 110 Pa. 
 339, 5 Atl. 614. Partial insanity, if of such character as to afCect the provi- 
 sions of the will, Invalidates it. Thomas v. Carter, 170 Pa. 292, 38 Atl. 81, 
 50 Am. St. Rep. 770 ; Blough v. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. B. 560. 
 
 91 Brooks v. Barrett, 7 Pick. (Mass.) 94. 
 
 05 Attorney General v. Parnther, 3 Brown, Ch. 443.' "Lunacy t)eing once es- 
 tablished, the burden is on the party claiming through some act of the luna- 
 tic to show that it was done in a lucid interval ; and, a return to insanity be- 
 ing proved, the burden is upon the party claiming a relapse into insanity " 
 Wright V. Jackson, 59 Wis. 569, 18 N. W. 486. 
 
 9 6 American Seamen's Friend Soc. v. Hopper, 33 N. Y. 619. And see Dew v 
 Clarke, 5 Kuss. 163; Stanton v. Wetherwax, 16 Barb. (N. Y.) 259; Ballantine 
 V. Proudfoot, 62 Wis. 216, 22 N. W. 392; Smee v. Smee, 32 Moak, 311, 5 Prob 
 Dlv. 84, Abb. Desc, Wills & Adm. 205; Morse v. Scott, 4 Dem. Sur. (n' Y ) 507 
 Abb. Desc, Wills & Adm. 209. 
 
554 PERSONS NON COMPOTES MEjNTIS AND ALIENS (Ch. 15 
 
 ing from mental disorder would be immaterial.. Thus, the testa- 
 tor's mistaken opinion that his child is illegitimate will not invali- 
 date his will.°^ A will is not affected even by an insane delusion 
 that has no connection with it.°* 
 
 Wills are most frequently contested for mental incapacity on the 
 ground of senile dementia, which results from a decay and wearing 
 out of the mental faculties in old age. If, from such a cause, a per- 
 son has not sufficient mental capacity, within the rules above 
 stated, he cannot make a valid will.*" A person is not rendered in- 
 competent to make a will by deafness, dumbness, or blindness, if 
 his mind is sound.^ Nor does mere eccentricity render him incom- 
 petent.^ 
 
 The fact that a testator was under guardianship as non compos 
 mentis at the time he made the will does not render the will in- 
 valid, if it can be shown that he was in fact of sound mind. But 
 the fact of guardianship is prima facie evidence of insanity and 
 incapacity to make a will, and the burden of showing the contrary 
 is on the proponent.* 
 
 CONTRACTS OF DRUNKEN PERSONS 
 
 242. A contract or conveyance made by a person when he is so 
 
 drunk that he is incapable of understanding its nature and 
 effect i^ voidable at his option. He is liable, however, on 
 contracts created by law, and for necessaries. 
 
 243. The rules as to ratification and avoidance are substantially the 
 
 same as in the case of infants and insane persons. Some 
 courts, however, hold that the right of avoidance can- 
 not be exercised against bona fide purchasers for value. 
 
 »T Olapp V. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681. And see Stackhouse 
 V. Horton, 15 N. J. Eq. 202. 
 
 »8 See Banks v. Goodfellow, L. R. 5 Q. B. 549, Abb. Desc, Wills & Adm. 
 211; Smee v. Smee, 32 Moak, 311, 5 Prob. Div. 84, Abb. Desc, "Wills & Adm. 
 205; In re Kendrick's Estate, 130 Cal. 360, 62 Pac. 605; Snell v. Weldon 
 243 111. 496, 90 N. E. 1061 ; Whitney v. Twombl(^v, 136 Mass. 145. 
 
 »» As to senile dementia, and incapacity on that ground, see Van Alst v. 
 Hunter, 5 Johns. Ch. (N. T.) 148; Blanchard v. Nestle, 3 Denio (N. Y.) 37. 
 
 1 Brewer v. Fisher, 4 Johns. Ch. (N. Y.) 441; In re Barber, 39 Ch. Div. 187. 
 
 2 In re Smith's Will, 52 Wis. 543, 8 N. W. 616, 38 Am. Rep. 756. 
 
 8 Stone V. Damon, 12 Mass. 488 ; Breed v. Pratt, 18 Pick. (Mass.) 115, 
 
§§ 242-243) DRUNKEN PERSONS — CONTRACTS 555 
 
 A drunken person is in exactly the same position as an insane 
 person with respect to his capacity to enter into conti'acts. It was 
 formerly cohsidered that a man should not be permitted to stultify 
 himself by pleading drunkenness when sued upon a contract, or for 
 the purpose of avoiding a deed; but this doctrine has long since 
 been exploded, and it is now perfectly well settled that a contract 
 or conveyance made by a drunken person is voidable at his option 
 if his drunkenness was so excessive as, to render him incapable of 
 comprehending its nature and effect, or, in other words, of know- 
 ing what he was doing.* The contract or conveyance is not void, 
 but simply voidable, at the option of the drunken party. It makes 
 nO difference that the intoxication was voluntary, and not fraudu- 
 lently induced or caused by the other party." The defense of 
 drunkenness to defeat a contract is personal, like the defense of 
 infancy and insanity, and can only be set up by the party or his 
 representative. The other party cannot avoid the contract, nor 
 can it be attacked by third persons." 
 
 Some courts make no distinction between cases in which the 
 drunken person is under guardianship, and other cases; but hold 
 the contract or conveyance merely voidable in both cases.' Other 
 
 * Clark, Cont. 274, and eases there cited ; Gore v. Gibson. 13 Mees. & W. 
 623; Spoonheim v. Spoonheim, 14 N. D. 380, 104 N. W. 845; Barrett v. Bux- 
 ton, 2 Aikens (Vt.) 167, 16 Am. Dec. 691; Carpenter v. Rodgers, 61 Mich. 384, 
 28 N. W. 156, 1 Am. St. Rep. 595; Miller v. Finley, 26 Mich. 254, 12 Am. 
 Rep. 306; Foss v. Hildreth, 10 Allen (Mass.) 76; Van W.yck v. Brasher, 81 
 N. T. 260 ; Shackelton v. Sebree, 86 111. 616 ; Bates v. Ball, 72 111. 108 ; Newell 
 y. Fisher, 11 Smedes & M. (Miss.) 431, 49 Am. Dec. 66; Broadwater v. Darne, 
 10 Mo. 277. Slight intoxication is not enough to render a contract voidable. 
 It must be so excessive as to render the party incapable of knowing what 
 he is doing. Van Wyck v. Brasher, 81 N. Y. 260; Kuhlman v. Wieben, 129 
 Iowa, 188, 105 N. W. 445. 2 L. R. A. (N. S.) 666; Conley v. Nailor, 118 U. 
 S. 127, 6 Sup. Ot. 1001, 30 D. Ed. 112 ; Van Horn v. Keenan, 28 111. 446. The 
 test whether intoxication is such as to render the subject thereof incompe- 
 tent to contract is whether his condition is such that he does not know what 
 he is about, and is incapable of appreciating what he Is doing. Mere im- 
 becility of mind, or inability to act wisely or discreetly or to effect a good 
 bargain, is insufficient. CAMERON-BARKLEY CO. v. THORNTON LIGHT 
 & POWER CO., 138 N. C. 365, 50 S. E. 695, 107 Am. St. Rep. 532, Cooley Cas. 
 Persons and Domestic Relations, 290. 
 
 ^CAMERON-BARKLEYCO. v. THORNTON LIGHT & POWER CO., 138 
 N. C. 365, 50 S. E. 695, 107 Am. St. Rep. 532, Cooley Cas. Persons and Do- 
 mestic Relations, 290; Fowler v. Meadow Brook Water Co., 208 Pa. 473, 57 
 Atl. 959. See, also, the cases above cited. But see Youn v. Lamont, 56 Minn. 
 216, 57 N. W. 478. 
 
 « Matthews v. Baxter, L. R. 8 Exch. 132; Eaton's Adm'r v. Perry, 29 Mo. 96. 
 
 -■ Douehoo's Appeal (Pa.) 15 Atl. 924. 
 
556 PBESONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 courts hold that in the former case it is absolutely void.* A drunk- 
 en person, like an infant or an insane person, is liable for neces- 
 saries furnished to him, or to his wife or children.* 
 
 Ratification and Avoidance 
 
 The principles governing the ratification or avoidance of a con- 
 tract and conveyance by a person who was drunk when he made it 
 are the same as in the case of insane persons. He may either rati- 
 fy or avoid it when he is sober. And ratification may be by, con- 
 duct, as by retaining the consideration, or failure to disaffirm for an 
 unreasonable time.^" After the contract or conveyance has been 
 ratified, it is binding absolutely, and cannot then be avoided.^^ 
 On avoidance, the consideration must be returned, or an offer be 
 made to return it,^^ unless, perhaps, it was wasted before the party 
 became sober.^^ 
 
 Some courts hold that drunkenness is no defense as against inno- 
 cent third persons who. acquire rights under or through the con- 
 tract or conveyance for value and without notice; that a party to 
 a negotiable instrument, or the grantor of land, cannot set up his 
 intoxication at the time he delivered the instrument or conveyance, 
 as against a bona fide holder or a bona fide purchaser of the land, 
 for value.^* Other courts allow such a defense even as against them, 
 to the same extent as if the party had been insane.^^ 
 
 sWadsworth v. Sharpsteen, 8 N. T. 388, 59 Am. Dec. 499; Cockrill v. 
 Cockrill, 92 Fed. 811, 34. 0. C. A. 254 ; Anderson v. Hicks, 150 App. Div. 289, 
 134 N. Y. Supp. 1018; Ralph v. Taylor, 33 R. I. 503, 82 Atl. 279; Id. (R. 
 I.) 82 Atl. 495; Philadelphia Trust, Safe & Deposit Ins. Co. v. Allison, 108 
 Me. 326, 80. Atl. 833, 39 L. R. A. (N. S.) 39. 
 
 » Gore V. Gibson, 13 Mees. & W. 623 ; McCrillis v. Bartlett, 8 N. H. 569. 
 
 10 Williams v. Inabnet, 1 Bailey (S. 0.) 343; Reinskopf v. Rogge, 37 Ind. 
 207; Smith v. Williamson, 8 Utah, 219, 30 Pac. 753; Mansfield v. Watson, 2 
 Iowa, 111. 
 
 11 Matthews v. Baxter, D. R. 8 Exch. 132 ; Joest v. Williams, 42 Ind. 565, 
 13 Am. Rep. 377. 
 
 12 Joest V. Williams, 42 Ind. 565, 13 Am. Rep., 377. 
 
 13 Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ot. 311, 30 L. Ed. 486. 
 
 14 Johnson v. Medlicott, 3 P. Wms. 130, note; State Bank v. McCoy, 69 Pa. 
 204, 8 Am. Rep'. 246 ; McSparran v. Neeley, 91 Pa. 17. See Norton, 'biUs & 
 N. 216-223. 
 
 10 Gore v. Gibson, 13 Mees. & W. 623; Wigglesworth v. Steers, 1 Hen. & 
 M. (Va.) 70, 3 Am. Dec. 602 ; Jenners v. Howard, 6 Blackf. (Ind.) 240 ; Haw- 
 kins V. Bone, 4 Fost. & F. 311. 
 
§ 245) DRUNKEN PERSONS — RESPONSIBILITY FOE CRIMES 557 
 
 LIABILITY OF DRUNKEN PERSON FOR TORTS 
 
 244. A drunken person is liable for his torts to the same extent as 
 
 if he were sober, except that the fact of drunkenness may 
 mitigate the damages by excluding the question of malice. 
 
 The fact that a man is drunk when he commits a tort may in 
 some cases mitigate the damages, by excluding the question of 
 malice,^" but otherwise.it is no defense. He is liable in damages 
 for any tortious conduct, even though he may have been so drunk 
 that he did not know what he was doing.^' 
 
 RESPONSIBILITY OF DRUNKEN PERSON FOR CRIME 
 
 245. Voluntary drunkenness furnishes no ground of exemption 
 
 from responsibility for crime, unless the act is committed 
 while the party is laboring under settled insanity or de- 
 lirium tremens, resulting from intoxication. But, where a 
 specific intent is an essential ingredient of the particular 
 crime, the fact of intoxication may negative its existence; 
 and in homicide cases it may be material in determining 
 whether, in the case of adequate provocation to reduce 
 the killing to manslaughter, the party acted under the 
 provocation or from malice. 
 
 Nothing is better settled in the criminal law than that voluntary 
 drunkenness does not exempt a man from responsibility for his 
 crimes.^' In England, nearly 500 years ago, it was said that, "if a 
 man that is drunk kills another, this shall be felony, and he shall 
 be hanged for it; and yet he did it through ignorance, for when 
 he was drunk he had no understanding nor memory ; but inasmuch 
 as that ignorance was occasioned by his own act and folly, and he 
 
 16 1 Jag. Torts, 166; Dawson v. State, 16 Ind. 428, 79 Am. Dec. 439. 
 
 17 1 Jag. Torts, 165; Eeed ¥. Harper, -25 Iowa, 87, 95 Am. Dec. 774; Cas- 
 sady V. Magher, 85 Ind. 228; McKee v. Ingalls, 4 Scam. (111.) 30; Alger v. 
 €ity of Lowell, 3 Allen (Mass.) 402. 
 
 18 Clark, Cr. Law, 60; Beverley's Case, 4 Coke, 125a; Ryan v. United States, 
 26 App. D. C. 74, 6 Ann. Cas. 633 ; Byrd v. State, 76 Ark. 286, 88 S. W. 974 ; 
 People V. Rogers, 18 N. Y. 9, 72 Am. Dec. 484 ; U. S. v. Drew, 5 Mason, 28, 
 Fed. Cas. No. 14,933 ; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162 ; Peo- 
 ple V. Walker, 38 Mich. 156; Alford v. State, 110 Ark. 300, 161 S. W. 497; 
 State V. Guthridge, 88 Kan. 846, 129 Pac. 1143; Com. v. Hawkins, 3 Gray 
 
558 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 might have avoided it, he shall not be privileged thereby."" The 
 rule does not apply where settled insanity or delirium tremens re- 
 sults from voluntary drunkenness ; but in such a case the party is 
 in the same position as if he were insane from any other cause. 
 Nor does the rule apply to crimes of which a specific intent is an 
 essential element," like burglary, where the specific intent to 
 commit a felony is essential, or robbery, or larceny, or assault wifh 
 intent to kill. Nor, in some states, does it apply to murder in the 
 first degree, as a specific intent to kill is necessary, and general 
 malice is not sufficient, as at common law.^^ Where a man, when 
 he commits an act, is too drunk to entertain a specific intent which 
 is necessary to make that act a particular crime, and did not first 
 form such intent, and then become intoxicated, he cannqt be guilty 
 of that particular crime.^^ But he may be guilty of some other 
 crime for which no specific intent is necessary. Thus drunkenness 
 may prevent a man from being guilty of assault with intent to kill, 
 but he may be convicted of common assault, for in the latter case 
 no specific intent is necessary."*' Drunkenness is no defense in a 
 
 (Mass.) 463; Mclntyre v. People, 38 111; 514; RafEerty v. People, 66 lU. 118; 
 Upstone V. People, 109 ill. 169; State v. Welch, 21 Minn. 22; Choice v. State, 
 31 Ga. 424. 
 i» Reniger v. Fogossa, Plow. 19. 
 
 20 People V. Hammill, 2 Parker, Cr. R. (N. T.) 223; Reg. v. Davis, 14 Cox, 
 Or. Cas. 563; U. S. v. McGlue, 1 Curt. 1, Fed. Gas. No. 15,679; Beasley v. 
 State, 50 Ala. 149, 20 Am. Rep. 292 ; State v. Robinson, 20 W. Va. 713, 43 
 Am. Rep. 799; Perkins v. United States, 228 F^ed. 408, 142 C. C. A. 638; 
 Martin v. State, 100 Ark. 189, 139 S. W. 1122 ; Cochran v. State, 65 Fla. 91, 
 61 South. 187. 
 
 21 State V. Yates, 132 Iowa, 475, 109 N. W. 1005; State v. Tniitt, 5 Pen- 
 newill (Del.) 466, 62 Atl. 790; Collins v. State, 115 Wis. 506, 92 N. W. 266; 
 State V. Blodgett, 50 Or. 329, 92 Pac. 820; Sabens v. United States, 40 App. 
 D. C. 440 ; Terhune v. Commonwealth, 144 Ky. 370, 138 S. W. 274 ; People v. 
 Eggleston, 186 Mich. 510, 152 N. W. 944. But see State v. Stehbins, 188 Mo. 
 387, 87 S. W. 4(i0, where the crime was rohbery. If the intent is first formed, 
 and the accused drank to intoxication prior to committing the crime, drunk- 
 enness is no excuse. People v. Koerner, 117 App. Div. 40, 102 N. Y. Supp. 
 93 ; State v. Truitt, 5 Pennewill (Del.) 466, 62 Atl. 790. 
 
 22 State V. Adams, 6 Pennewill (Del.) 178, 65 Atl. 510. In ma,nslaughter, 
 specific intent is not an element and drunkenness is no defense. Laws v. 
 State, 144 Ala. 118, 42 South. 40. Voluntary intoxication, not resulting in 
 fixed or settled frenzy or insanity, either permanent or mtermitteut, does 
 not excuse or mitigate any degree of unlawful homicide below murder in the 
 first degree. Thomas v. State, 47 Fla. 99, 36 South. 161. 
 
 2 3 Reg. V. Doody, 6 Cox, Cr. Cas. 463. 
 
 21 State V. Truitt, 5 Pennewill (Del.) 466, 62 Atl. 790. 
 
§ 246) DRUNKEN PERSONS — CAPACITY TO MAKE A WILL 559 
 
 prosecution for murder at common law;^" but evidence of drunk- 
 enness is material on the question whether a homicide is statutory 
 murder in the first degree, in those jurisdictions where an actual 
 intent to kill is necessary.^" And, by the weight of opinion, evi- 
 dence of drunkenness is admissible on the question whether, where 
 there was .sufficient provocation to reduce a homicide to man- 
 slaughter, the accused acted under the influence of passion caused 
 by the provocation, or from malice.^^ If a person is made drunk 
 by the stratagem or fraud of another, he is not responsible.^ ° 
 
 CAPACITY OF DRUNKEN PERSON TO MAKE A WILL 
 
 246. Drunkenness renders a person incompetent to make a will, 
 if it affects his mind to such an extent that he would be 
 incompetent in case of insanity. 
 
 The mere fact that a person is addicted to drink, and is under 
 guardianship, as incapable of managing his estate, does no't render 
 him incompetent to make a will.^" Nor does the mere fact of 
 drunkenness at the time of making a will render it invalid, unless 
 it was so great as to render the testator incapable of understanding 
 the nature and effect of the will, within the rules shown in treating 
 of insanity.^" If it has this eiifect, the will is void.** Inebriety, al- 
 though long continued, and resulting occasionally in temporary in- 
 sanity, does not require proof of lucid intervals to give validity to 
 the party's will, as is required where general insanity is proved. 
 Therefore, where habitual intoxication is shown, there will be nq 
 
 2 5 State V. McCants, 1 Speer (S. C.) 384; Kelly v. State, 3 Smedes & M. 
 (Miss.) 518. 
 
 2« State V. Johnson, 40 Conn. 136; People v. "Walker, 38 Mich. 1.56; Hopt 
 V. Utah, 104 U. S. 631, 26 L. Ed. 873; Willis v. Com., 32 Grat. (Va.) 929; 
 Swan v. State, 4 Humph. (Tenn.) 136 ; Pirtle v. State, 9 Humph. (Tenn.) 663, 
 Clark, Cr. Law, 63, 64, and cases there cited. , 
 
 27 People V. Rogers, 18 N. T. 9, 72 Am. Dec. 484; Pearson's Case, 2 Lewin, 
 Crown Cas. 144; Mclntyre v. People, 38 111. 514; Clark, Or. Law, 65. 
 
 28 Pearson's Case, 2 Lewin, Crown Cas. 144. 
 
 2» In re Slinger's Will, 72 Wis. 22, 37 N. W. 236; Harrison v. Bishop, 131 
 Ind. 161, :30 N. E. 1069, 31. Am. St. Kep. '422. 
 
 30 Andress v. Weller, 3 N. J. Eq. 604; Kahl v. Schober, 35 N. J. Bq. 461 ; 
 Starrett v. Douglass, 2 Xeates (Pa.) 48 ; Gardner v. Gardner, 22 Wend. (N. Y.) 
 526, 34 Am. Dec 340; Abb. Desc, Wills & Adm. 236; Hewitt's Appeal, 55 
 Md. 509. 
 
 31 See cases cited abore. 
 
'560 PEESONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 presumption that there was incapacitating drunkenness at the time 
 the will was made. Such a condition must be affirmatively proved, 
 or the presumption of capacity will prevail.''^ 
 
 ALIENS 
 
 247. An alien is a person born out of the jurisdiction of the United 
 
 States, subject to some foreign government, and who has 
 not l^een naturalized under their constitution and laws. 
 Children of citizens of the United States bom abroad are 
 citizens. 
 
 248. An alien domiciled in the United States is subject to the laws 
 
 of the United States and of the state in which he resides 
 to the same extent as a citizen. 
 
 249. An alien has the same rights as a citizen with respect to ac- 
 
 quiring, holding, and disposing of personal property, and 
 . may contract in relation thereto, and sue and be sued on 
 his contracts. 
 
 250. An alien may also sue and be sued for torts. 
 
 251. At common law, an alien cannot take or transmit land by de- 
 
 scent. But he can take by devise or purchase subject to 
 the right of the state to enforce a forfeiture by inquest 
 and office found. His title is good as against all persons 
 but the state, and is good as against the state until office 
 found. And an alien can dispose of land acquired by 
 purchase or devise, and his grantee or devisee will take 
 a good title against every person but the state. The com- 
 mon law in this respect has been abolished in some states, 
 and modified in others, by statute. 
 
 252. An alien enemy cannot, without leave of the government, 
 
 make any fresh contract, or enforce any existing contract, 
 during the continuance of war between his government 
 and the United States. Some courts require adherence to 
 the enemy by a resident alien to disqualify him. He may 
 be sued on existing contracts, and in such a case he may 
 defend. Pre-existing contracts are not dissolved by the 
 war unless they are of a continuing nature, and antago- 
 nistic to the rules governing a state of war. 
 
 s 2 In re Lee's Will, 46 N. J. TSq. 193, 18 Atl. 525. See, also, Swygart v WU- 
 lard, 166 Ina. 25, 76 N. E. 755. 
 
§1 247-252) ALIENS fifil 
 
 An alien is a person born out of the jurisdiction of the United 
 States, subject to some foreign government, and who has not been 
 naturalized under their constitution and laws.^' A citizen of the 
 United States does not cease to be a citizen merely by residing in 
 a foreign country; and even at common law, as well as by an act 
 of Congress, children of citizens of the United States, though born 
 abroad, are citizens of the United States, and not aliens.^* Wheth- 
 er a citizen has a right to expatriate himself is a question upon 
 which there has been much conflict of opinion. By the better opin- 
 ion, a citizen may renounce his allegiance at pleasure, if he acts in 
 good faith, and becomes a citizen and subject of a foreign govern- 
 ment. ^° Some authorities say that he cannot do so without the 
 consent of the government.'" It seems that none of the authorities 
 hold that a citizen casts oflf his allegiance before he becomes a 
 citizen or subject of a foreign government.^' The question has 
 been set at rest in this country, and in some others, by statutes de- 
 
 33 2 Kent, Comm. 50; Dawson's Lessee v. Godfrey, 4 Cranch, 321, 2 L. Ed. 
 634; Ainslie v. Martin, 9 Mass. 454. A foreigner, who holds only a declara- 
 tion of intention, is still subject of the foreign country. United States v. Bell 
 (D. C.) 248 Fed. 992. 
 
 3*Ludlam v. Ludlam, 26 N. T. 356, 8^ Am. Dec. 193; Orane v. Reeder, 25 
 Mich. 303; Davis v. Hall, 1 Nott & McC. (S. C.) 292; Campbell v. Wallace, 12 
 N. H. 362, 37 Am. Dec. 219 ; Eev. St. U. S. 1878, § 1993 (U. S. Comp. St. § 
 3947), declares: "All children heretofore 'born or hereafter born out of the 
 limits and jurisdiction of the irnited States, whose fathers were or may be 
 at the time of their birth citizens thereof, are declared to be citizens of 
 the United States ; but the rights of citizenship shall not descend to children 
 whose fathers never resided in the United States." The child of one who has 
 renounced his citizenship of the United States, and become a citizen and 
 subject of a foreign government, horn after such renunciation, is not a citizen, 
 but an alien. Browne v. Dexter, 66 Cal. 39, 4 Pae. 913. 
 
 35 In a Kentucky case it was said: "The government, for the purpose of 
 preventing abuse, and securing the public welfare, may regulate the mode of 
 expatriation. But where it has not prescribed any limitation on this right, 
 and the citizen has in good faith abjured his country, and become a citizen or 
 subject of a foreign nation, he should, as to his native government, be consid- 
 ei;ed as denationalized." Alsberry v. Hawtins, 9 Dana, 178, 33 Am. Dec. 546. 
 Secretary Cass went so far as to deny the right of governments to prohibit ex- 
 patriation, except where the act of expatriation, if recognized, would deprive 
 the government of the power to punish the citizen or subject for an offense 
 previously committed. He said: "The moment a foreigner becomes naturaliz- 
 ed, his allegiance to his native country is severed forever. He experiences a 
 new political" birth. A broad and impassable line separates him from his na- 
 tive country." Hal. Int. Law, c. 29, § 4. 
 
 3 8 Ludlam v. Ludlam, 26 N. Y. 356, 84 Am. Dec. 193, collating the authori- 
 ties. ' 
 
 37 Ludlam v. Ludlam, 26 N. Y. 356, 84 Am. Dec. 193, 
 
 TIFF.P.& D.Eel.(3d Ed.)— 36 
 
562 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 daring the right of expatriation to exist.^* An alien woman who 
 marries a citizen of the United States becomes a citizen; '° and the 
 same is true of an alien woman whose husband becomes natural- 
 ized.*" 
 
 Aliens are Sithject to the Laws 
 
 As a general rule, aliens domiciled in this country are just as 
 much subject to the laws of the United States, and of the state in 
 which they reside or may be, as citizens.*^ As was said by Mr. 
 Justice Field in Carlisle v. U. S.,*^ the alien, while domiciled in the 
 country, owes a local and temporary allegiance, which continues 
 during the period of his residence. He is bound to obey all the 
 laws of the country not immediately relating to citizenship, during 
 his sojourn in it, and he is equally amenable with citizens for any 
 infractions of those laws. It was said by Daniel Webster, when Sec- ■ 
 retary of State, in a report to the President: "Independently of a 
 residence, with intention to continue such residence, independently 
 of any domiciliation, independently of the taking of any oath of 
 allegiance, or of renouncing any former allegiance, it is well known 
 that, by the public law, an alien or a stranger born, for so long a 
 time as he continues within the dominions of a foreign government, 
 owes obedience to the laws of that government, and may be punish- 
 ed for treason or other crimes as a native-born subject might be, un- 
 less his case is varied by some treaty stipulation." ** 
 
 ssEev. St U. S. § 1999 (U. ,S. Comp. St. § 3955). See, on this question, 
 Glenn, Int. Law, 129-131. 
 
 3 8 Luhrs V. Elmer, 80 N. Y. 171. Evidence that an alien was married in 
 Pennsylvania, without showing whether the man she married was a citizen or 
 an alien did not show that she had lost her status as an alien. Lehigh Val- 
 ley Coal Co. V. Washko, 231 Fed. 42, 145 C. O. A. 230. 
 
 40 Headman v. Rose, 63 Ga. 458. 
 
 41 An alien residing within the United States has a legal right to frame and 
 circulate a petition to the President of the United States and to comment fair- 
 ly upon governmental policies and actions. Van Lonkhuyzen v. Daily News 
 Co., 203 Mich. 570, 170 N. W. 93. 
 
 42 16 Wall. 147, 21 L. Ed. 426. 
 
 43 6 Webst. Works, 526, quoted with approval in Carlisle v. U. S., 16 Wall. 
 il47, 21 L. Ed. 426. And see Olcott v. Maclean, 73 N. T. 223 ; People v Mo^ 
 Leod, 1 Hill (N. Y.) 377, 37 Am. Dec. 328; Id., 25 Wend. (N. Y.) 483, 37 Am 
 Dec. 328 ; State v. ISfeibekier, 184 Mo. 211, 83 S. W. 523. Notwithstanding the 
 comity extended to war vessels and their commanders, the comihander of an 
 interned German war vessel may be punished for violation of Mann Act oc- 
 curring within United States, and he is subject to jurisdiction of United 
 States courts for offense of smuggling from vessel into United States dutiable 
 articles. United States v. Thierichens (D. C.) 243 Fed. 419. 
 
§§ 247-252) ALIENS 563 
 
 This rule does not apply to foreign friendly sovereigns and their 
 attendants, nor to foreign ambassadors, ministers, and displomatic 
 agents, and their servants; but it does apply to consuls, who are 
 mere commercial agents.** 
 
 Rights and LiabUities of Alien Friends 
 
 An alien at common law, as well as under the statutes of the 
 different states, has substantially the same powers as a citizen 
 with respect to acquiring, holding, and disposing of personal prop- 
 erty; and, like a citizen, he may make contracts with respect to 
 personal property, and sue and be sued thereon.*" 
 
 If he commits a tort, he may be sued therefor, and he may sue 
 to recover for a tort committed against him, to the same exent 
 as a citizen.*' It has even been held that one alien may^ sue an- 
 other in our courts upon a contract made abroad, or for a tort 
 committed abroad, if both parties are transiently here.*' 
 
 At common law an alien is under disabilities with respect to ac- 
 quiring and holding land ; and the common law in this respect is 
 still in force in some jurisdictions, or has been declared in whole 
 or in part by statute. An alien at common law can take land by pur- 
 chase or by deyise, but he takes the title subject to the right of the 
 sovereign — with ^us the state — to enforce a. forfeiture., He can hold 
 the same against all persons but the state, and he holds as against 
 the state until office found; that is, until proper proceedings have 
 been instituted, and a judgment rendered declaring a forfeiture. 
 Upon inquest ^nd office found, but not before, the land is forfeited 
 
 ** 1 Kent, Comm. 38 et seq.; State v. De La Foret, 2 Nott & MeO. (S. O.) 217;. 
 r.espublica v. De Longchamps, 1 Dall. Ill, 1 D. Ed. 59. 
 
 *5 Thus, an alien .mortgagee, Independently of any statute or any treaty 
 stipulations, may come into a court of equity, and have the land sold to sat- 
 isfy the mortgage debt ; the demand being merely a personal one. Hughes v. 
 Edwards, 9 Wheat 489, 6 L. Ed. 142. The right to reside in a foreign country 
 implies the right to labor there for a living. Baker v. Portland, 5 Sawy. 566, 
 Fed. Cas. No. 777. 
 
 46 Orashley v. Press Pub. Co., 179 N. Y. 27, 71 N. E. 258, 1 Ann. Cas. 196, af- 
 firming 74 App. Dlv. 118, 77 N. T. Supp. 711 ; Maiorano v. Baltimore & O. R. 
 Co., 216 Pa. 402, 65 Atl. 1077, 21 L. R. A. (N. S.) 271, 116 Am. St. Rep. 778, af- 
 firmed 213 U. S. 268, 29 Sup. Ct. 424, 53 L. Ed. 792 ; Lewicki v. John C. Wiardi 
 & Co. (D. C.) 213 Fed. 647. A citizen of Mexico there converting to his own. 
 Uise property of a citizen of Texas, and then coming to the state, is there 
 amenable to the state citizen for the wrong. Mendiola v. Gonzales (Tex. Civ. 
 App.) 185 S. W. 389. 
 
 47 Eobetts v. Knights, 7 Allen (Mass.) 449; Dewitt v^ Buchanan, 54 Barb. (N. 
 
 y.) 31. 
 
o64 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 to the state.**' At common law, and unless, as is the case in some 
 jurisdictions, he is restrained by statute, an alien can devise or 
 convey land acquired by purchase or devise, and the grantee or 
 devisee will take a good title as against every person except the 
 state. The title remains voidable, however, by the state.*' 
 
 But an alien, at common law, cannot take land by descent.^" He 
 may take, as it is said, by act of the party, but not by operation of 
 law. Nor can an alien transmit land by descent. No one — not 
 even a citizen — can claim by inheritance from or through an alien 
 On the death of an alien intestate his land vests in the state im- 
 mediately and without office found." Nor, at common law, can an 
 alien wife claim "dower,^^ or an alien husband claim as tenant by 
 the curtesy. ^^ 
 
 The doctrine of equitable conversion enables a devise or convey- 
 ance of land to a trustee to sell the same, and pay over the pro- 
 ceeds to an alien ; for such a devise or conveyance is not of land, 
 but of personalty.^* Under the same doctrine, a devise of money 
 
 48 See Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603, 620, 3 L. Ed. 
 453; Doe v. Robertson, 11 Wheat. 332, 6 L. Ed. 488; Fox v. Southack, 12 Mass. 
 143 ; Donaldson v. State, 182 Ind. 615, 101 N. B. 485 ; In re Palmer Window- 
 Glass Co. (D. C.) 183 Fed. .902 ; Johnson v. Eversole Lumber Co., 144 N. C. 
 717, 57 S. E. 518. rehearing granted 147 N. C. 249, 60 S. E. 1129; Wadsworth 
 V. Wadsworth, 12 N. Y. 376 ; Harley v. State, 40 Ala. 689 ; Jackson v. Beach, 
 1 Johns. Gas. (N. Y.) 399. 
 
 4 »■ Crane v. Eeeder, 21 Mich. 24, 4 Am. Rep. 430; Marx v. McGlynn, 88 N. Y. 
 357; Emmett v. Emmett, 14 Lea (Tenn.) 369; Jones v. McMasters, 20 How. 21, 
 15 L. Ed. 805 ; Harley v. State, 40 Ala. 689 ; Hepburn v. Dualop, 1 Wheat. 198, 
 4 L. Ed'. 65. 
 
 50 See cases above cited. And see Dawson's Lessee v. Godfrey, 4 Cranch, 
 321, 2 L. Ed. 684; Orr v. Hodgson, 4 Wheat. 453, 4 L. Ed. 613; Mooers v. White, 
 6 Johns. Ch. (N. Y.) 360; Crane v. Reeder, 21 Mich. 24, 4 Arn. Rep. 430; Good- 
 rick V. Russell, 42 N. Y. 177 ; Connolly v. Reed, 22 Idaho, 29, 125 Pac. 213 ; Ah- 
 rens v. Ahrens, 144 Iowa, 486, 123 N. W. 164, Ann. Cas. 1912A, 1098 ; Scottish 
 American Mortgage Co. v. Butler, 99 Miss. 56, 54 South. 666, Ann. Cas. 1913C, 
 1236; Moody v. Hagen, 36 N. D. 471, 162 N. W. 704, L. R. A. 191SF, 947, Ann. 
 Cas. 1918A, 933. 
 
 61 Slater v. Nason, 15 Pick. (Mass.) 345; Foss v. Crisp, 20 Pick. (Mass.) 121; 
 Jackson v. Fitz Simmons, 10 Wend. (N. Y.) 9, 24 Am. Dec. 198. As to the ef- 
 fect of a common ancestor's alienage, see, also, Jackson v. Green, 7 Wend. (N. 
 Y.) 333; McCreery's Lessee v. Somerville, 9 Wheat, 354, 6 L. Ed. 109; Mc- 
 Carthy v. Marsh, 5 N. Y. 263; McGregor v. Comstock, 3 N. Y. 409- McLean 
 V. Swantou, 13 N. Y. 535. 
 
 62 SutlifC V. Forgey, 1 Cow. (N. Y.) 89. 
 
 Bs Foss V. Crisp, 20 Pick. (Mass.) 121; Quinn v. Ladd, 37 Or. 261, 59 Pac. 
 457; Hatfield v. Sneden, 54 N. Y. 280; Mussey v. Pierre, 24 Me. 559. 
 
 6 4Meakings v. Cromwell, 5 N. Y: 136. A devise of land to executors, who 
 
§§ 247-252) ALIENS 565 
 
 to trustees to invest the same in land to be conveyed to an alien 
 would be a devise of land, and not of money, and would vest him 
 with a defeasible title at common law, or would be void under a 
 statute declaring void a devise of land to an alien. ""^ 
 
 Such are the rules of the common law; but in most states they 
 have been either altogether abolished, or greatly modified by stat- 
 ute. In some states the common law is still in force, while in oth- 
 ers it is expressly declared by statute.^" In others, nonresident 
 aliens are not given the right to acquire or hold real property, 
 while resident aliens are.^^ And, in others, aliens, whether resident 
 or nonresident, are given the same right as native-born subjects as 
 to acquiring and holding real property, either by descent or by pur- 
 chase, and of disposing of the same or transmitting by descent.^* 
 The laws of the states in respect to the disability of aliens is to 
 some extent controlled by treaties between the United States and 
 foreign gov,ernments. Though the right of aliens to hold real prop- 
 erty is dependent upon the laws of the state in which the property 
 is situated, the state law must give way if it conflicts with any ex- 
 isting treaty between the government of the United States and 
 the government of the country of which such alien is a subject or 
 citizen. "If the citizen or subject of a foreign government is dis- 
 qualified under the laws of a state from taking, holding, or trans- 
 are citizens, in trust to pay the income to aliens, is valid. Marx v. McGlynn, 
 88 N. Y. 357; Craig v. Leslie, 3 Wheat. 563, 4 L. Ed. 460. 
 
 5 5 Beekman v. Bonsor, 23 N.. Y. 298, 80 Am..Dec. 269. 
 
 5 6 See Wunderle v. Wunderle, 144 111. 40, 33 N. E. 195, 19 L. R. A. 84; Zun- 
 dell V. Gess (Tex.) 9 S. W. 879. 
 
 5T Furenes v. Mickelson, 86 Iowa, 508, 53 N. W. 416; Donaldson v. State, 182 
 Ind. 615, 101 N. E. 485 ; Bennett v. Hibhert, 88 Iowa, 154, 55 N. "W. 93. And 
 see Dougherty v. Kubat, 67 Neb. 269, 93 N. W. 317, construing the Nebraska 
 statute, which excepts from the rule land within the corporate limits of cities 
 and towns. Under Rev. St. 1913, §§ 6273, 6274, relating to escheats, nonresi- 
 dent aliens (iannot inherit title nor right of possession of lands in the state. 
 State V. Thomas, 103 Neb. 147, 170 N. W. 839, rehearing denied 103 Neb. 147, 
 172 N. W. 690. Statutes changing the common law and allowing aliens to take 
 by will are not a recognition or extension of any previously existing right, but 
 a new grant or right or statutes of grace. Moody v. Hagen, 36 N. D. 471, 162 
 N. W. 704, L. R. A. 1918F, 947, Ann. Cas. 1918A, 933. 
 
 53 Hanrick v. Gurley, 93 Tex. 458, 54 S. W. 347, 55 S. W. 119, 56 S.W. 330; 
 Blythe v. Hinckley, 127 Gal. 431, 59 Fac. 787, affirmed in 180 U. S. 333, 21 Sup. 
 Ct. 390, 45 L. Ed. 557 ; Sparks v. Bodensick, 72 Kan. 5, 82 Pac. 463 ; Kelly v. 
 Pratt, 41 Misc. Rep. 31, 83 N. Y. Supp. 636 ; Price v. Greer, 89 Ark. 300, 116 
 S. W. 676, 118 S. W. 1009 ; Connolly v. Reed, 22 Idaho, 29, 125 Pac. 213 ; Cris- 
 well v. Noble, 61 Misc. Rep. 483, 113 N. Y. Supp. 954, atfirmed 134 App. Div. 
 994, 119 N. Y. Supp. 1122. 
 
566 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 ferring real prqperty, such disqualification will be removed if a 
 treaty between the United States and such foreign government 
 confers the right to take, hold, or transfer real property," =* In 
 some states the Constitution expressly prohibits the Legislature 
 from depriving resident foreigners of the rights enjoyed by native- 
 born citizens with respect to the acquisition, enjoyment, and trans- 
 mission of property.'" Doubtless, in all of the states, aliens may^ 
 acquire, hold, and dispose of personal property, and make and en- 
 force contracts relating to personal property to the same extent as 
 citizens.*^ 
 
 Alien Enemies 
 
 An alien enemy is one who is a subject of some government with 
 which the United States is at war."' Though he may reside in the 
 United States, yet, by reason of his owing allegiance to the hostile 
 state, he becomes impressed with the character of an enemy. Un- 
 der the Alien Enemy Act of 1798,"' an alien enemy maybe arrested 
 and restrained or removed from the country."* Nevertheless an 
 alien enemy, resident in the United States and conducting himself 
 properly, is entitled to the protection of the law and may assert the 
 
 5» Wunderle v. Wunderle, 144 III. 40, 33 N. E. 105, 19 L. R. A. 84, and cases 
 there cited. See Hauensteln v. Lynham, 100 V. S. 483, 25 L. Ed. 628 ; Chirac 
 V. Chirac's Lessee, 2 Wheat. 259, 4 L. Ed. 234 ; LEHMAN v. STATE, 45 Ind. 
 App. 330, 88 N. E. 365, Cooley Cas. Persons and Domestie Eelations, 293; 
 Ahrens v. Ahrens, 144 Iowa, 486, 123 N. W. 164, Ann. Cas. 1912A, 1098; Fisch- 
 er V. Sklenar, 101 Neb. 553, 163 -N. W. 861; Pierson v. Lawler, 100 Neb. 783, 
 161 N. W. 419; Cohen v. Cohen, 47 App. D. C. 129. 
 
 60 See State v. Smith, 70 Cal. 153, 12 Pac. 121 ; Nlcrosi v. Phillippi, 91 Ala. 
 299, 8 South. 561. 
 
 61 See Taylor v. Carpenter, 3 Story, 458, Fed. Cas. No. 13,784 ; Cleveland, 
 C, C. & St. L. Ey. Co. V. Osgood, 36 Ind. App. 34, 73 N. E. 285 ; Franco-Texan 
 Land Co. v. Ohaptive (Tex.) 3 S. W. 31. An alien may take a devise of 
 realty, which by the terms of the will is converted into personalty, at the 
 time the devise takes efEect. Appeal of Emery, 83 Conn. 235, 76 Atl. 529. 
 
 62 Taylor v. Albion Lumber Co., 176 Cal. 347, 168 Pac. 348, L. R. A. 1918B, 
 185 ; Ex parte Graber (D. C.) 247 Fed. 882 ; Krachanake v. Acme Mfg. Co., 175 
 N. C. 435, 95 S. E. 851, L. R. A. 1918B, 801, Ann. Cas. 1918E, 340. A New Jer- 
 sey corporation, though composed entirely of German stockholders, did not, 
 on declaration of war between the United States and Germany, cease to be a 
 domestic corporation and become an alien enemy. Fritz Schulz, Jr., Co. v. 
 Ealmes & Co., 99 Misc. Rep. 626, 164 N. Y. Supp. 454, affirmed 100 Misc. Rep. 
 697, 166 N. Y. Supp. 567. 
 
 3 Rev. St. U. S. §§ 4067-4070 (U. S. Oomp. St. §§ 7615-7618). 
 4 De Lacey v. United States, 249 Fed. 625. 161 C. 0. A. 535, L. R. A. 1918E, ' 
 1011 ; Minotto v. Bradley (D. C.) 252 Fed. 600. 
 
§§ 247-252) ALIENS 567 
 
 right in the courts." As a general rule, an alien enemy cannot, 
 during the continuance of hostilities, make any fresh contract, or 
 enforce an existing contract."' If he is sued on his contract, how- 
 ever, he may defend.®' In New York it has been held that, to de- 
 feat a suit by a resident subject of a foreign hostile power, it must 
 appear that he is adhering to the enemy ; that aliens resident in the 
 United States at the time of war breaking out between their coun- 
 try and the United States, or who come to reside in the United 
 States after the breaking out of war, under an express permission, 
 or permission implied from their being allowed to remain, may sue 
 and be sued as in time of peace, since a license and protection will 
 be implied from their being allowed to remain.** 
 
 8B Mittelstadt T. Kelly, 202 Mich. 524, 168 N. W. 501. 
 
 88 Scholefleld v. Bichelberger, 7 Pet. 586, 8 L. Ed. T93 ; The Rapid, 8 Cranch, 
 155, 3 K Ed. 520 ; Mutual Ben. Life Ins. Co. v. Hillyard, 37 N. J. Law, 444, 18 
 Am. Rep. 741 ; Wright v. Graham, 4 W. Va. 430; Masterson v. Howard, 18 
 WalL 99, 21 L. Ed. 76-4; Philips v. Hatch, 1 DiU. 571, Fed. Cas. No. 11,004; 
 Brooke v. Filer, 35 Ind. 402; Blackwell v. Willard, 65 N. O. 555, 6 Am. Rep, 
 749; Semmes v. City Fire Ins. Co., 36 Conn. 543, Fed. Cas. No. 12,651. 
 
 8T Dorsey v. Thompson, 37 Md. 25; McVeigh v. U. S., 11 Wall. 259, 20 L. Ed; 
 80; Watts, Watts & Co. v. Unione Austriaca Di Navigazione, 248 TJ. S. 9, 39 
 Sup. Ct. 1, 68 L. Ed. lOO, 3 A. L. R. 323, reversing 229 Fed. 136; 143 C. C. A. 
 412; The Oropa (D. C.) 255 Fed. 132; Mixer v. Sibley, 56 lU. 61; McNair 
 V. Toler, 21 Minn. 175. 
 
 88 Clarke v. Morey, 10 Johns. (N. T.) 69. Declaration of existence of war is 
 not alone sufficient ex proprlo vigore to suspend remedies for the enforcement 
 of debts and dues between citizens and subjects of an alien enemy. Nor can 
 the courts declare a public policy as to permitting alien enemies to sue during 
 the war for debts contracted 'during peace ; that being a function of Congress. 
 Fritz Schulz, Jr., Co. v. Raimes & Co., 99 Misc. Rep. 626, 164 N. Y. Supp. 454, 
 affirmed 100 Misc. Rep. 697, 166 N. Y. Supp. 567. A nonresident alien enemy 
 cannot sue. Rothbarth v. Herzfeld, 179 App. Div. 865, 167 N. Y. Supp. 199, re- 
 versing 100 Misc. Rep. 470, 166 N. Y. Supp. 744 ; Speidel v. N. Barstow Co. (D. 
 C.) 243 Fed. 621. His rights are suspended during the war. Rothbarth v. 
 Herzfeld, supra ; Taylor v. Albion Lumber Co., 176 Cal. 347, 168 Pac. 348, L. 
 R. A. 1918B, 185. The disability to sue does not attach to a resident alien. 
 Speidel v. N. Barstow Co. (D. C.) 243 Fed. 621; Arndt-Ober v. Metro- 
 politan Opera Co., 182 App. Dlv. 513, 169 N. Y. Supp. 944. A pending suit may, 
 however, be stayed during the war. Speidel v. N. Barstow Co. (D. C.) 243 
 Fed. 621 ; City Nat. Bank of Selma v. Dresdner Bank of Bremen (D. O.) 255 
 Fed. 225 ; In re Henrichs' Estate (Cal.) 179 Pac. 883. The Alien Property Cus- 
 todian appointed under the Trading with the Enemy Act CAct Oct. 6. 1917 [U. 
 S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%j]) may 
 intervene in an action by an alien enemy and continue its prosecution. Nord 
 Deutscher Ins. Co. of Hamburg, Germany, v. John L. Dudley, Jr., Co. (Sup.) 
 169 N. Y. Supp. 303, affirmted 183 App. Div. 887, 169 N. Y. Supp. 1106. 
 
568 PERSONS NON COMPOTES MENTIS AND ALIENS (Ch. 15 
 
 Whether a pre-existing contract is dissolved by the war depends 
 upon whether it is essentially antagonistic to the laws governing 
 a state of war. If it is of a continuing nature, like a contract of 
 partnership, or of an executory character merely, and in the per- 
 formance of its essential features would violate such laws, it is 
 dissolved; but if not, and rights have become vested under it, the 
 contract will either be qualified, or its performance suspended, ac- 
 cording to its nature, so as to strip it of its objectionable features, 
 and save such rights. The tendency of adjudication is to preserve, 
 and not to destroy, contracts existing before the war.^® 
 
 Naturalisation 
 
 An alien may cease to be such, and become a citizen by natural- 
 ization in compliance with our laws. The Constitution of the 
 United States provides that "Congress shall have power to estab- 
 lish an uniform rule of naturalization." ''" This grant of power 
 is exclusive, and deprives a state of the power to enact laws on the 
 subject.''^ But, so far as a state alone is concerned, it may pass 
 laws entitling an unnaturalized alien to all the rights which the 
 Constitution and laws of the state attach to the character of a citi- 
 zen.''^ Under this grant. Congress has enacted naturalization laws, 
 by which aliens may be admitted to citizenship.^* 
 
 6 Clark, Cont. 218. See Mutual Ben. Life Ins. Co. v. Hillyard, 37 N. J. Law, 
 444, 18 Am. Kep. 741; Griswold v. Waddington, 15 Johns. (N. Y.) 57; Semmes 
 V. City Fire Ins. Co., 36 Conn. 543, Fed. Cas. No. 12,651 ; Bank of New Orleans 
 V. Matthews, 49 N. Y. 12; Cohen v. New Xork Mut Life Ins. Co., 50 N. Y. 610, 
 10 Am. Rep. 522; Washington University v. Finch, 18 Wall. 106, 21 L. Ed. 818; 
 Whelan v. Cook, 29 Md. 1 ; Dorsey v. Kyle, 30 Md. 512, 96 Am. Dec. 617 ; Dor- 
 sey V. Thompson, 37 Md. 25. Declaration of existence of war is not sufficient, 
 ex proprio vigore, to avoid all ohligations between citizens and subjects oi an 
 alien enemy. Fritz Schulz, Jr., Co. v. Raimes & Co., 99 Misc. Kep. 626, 164 N. 
 Y. Supp. 454, affirmed 100 Misc. Rep. 697, 166 N. Y. Supp. 567. Powers of at- 
 torney for collection of money, ^executed prior to declaration of war, render- 
 ing principals enemy aliens, continue, to be valid, notwithstanding state of 
 war. Keppelmann v. Keppelmann, 89 N. J. Eq. 390, 105 Atl. 140. As to the 
 commercial rights of alien enemies generally, see Trading with the Enemy Act 
 Oct. 6, 1917 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115y2a- 
 
 3ii5y2J). 
 
 7 0Article 1, § 8, cl. 4. , 
 
 71 Chirac v. Chirac's Lessee, 2 Wheat. 259, 4 L. Ed. 234; Thurlow v. Massa- 
 chusetts, 5 How. 585, 12 L. Ed. 256. 
 
 72 Per Taney, C. J., in Dred Scott v. Sandford, 19 How. 393, 15 L. Ed. 691. 
 
 7 3 TJ. S. Comp. St. 1901, §§ 2165-2174. And see Act June 29, 1906, c. 3592, 
 34 Stat. 596. 
 
§§ 247-252) ALIENS 569 
 
 When an alien is naturalized under the laws of the United States, 
 he becomes not only a citizen of the United States, but also a 
 citizen of the state in which he resides. Under the Fourteenth 
 Amendment of the Constitution, which overrides state laws, "all 
 persons born or naturalized in the United States, and subject to 
 the jurisdiction thereof, are citizens of the United States, and of 
 the state wherein they reside." 
 
 Naturalization has a retroactive effect, and removes the effect of 
 the party's alienage, so as to confirm his title to land acquired prior 
 thereto, and to waive all liability to forfeiture by the state.'* But 
 it cannot remove his disability to inherit retroactiveb-, for the 
 capacity to take by descent must exist at the time the descent hap- 
 pens.' ° 
 
 '* Jackson v. Beach, 1 Johns. Cas. (N. T.) 399. 
 
 75 People V. Conklin, 2 Hill (N. T.) 67. "Naturalization," it was said in this 
 case, "though it may conflrpi a defective title, wUl not confer an estate." 
 
PART V 
 MASTER AND SERVANT 
 
 CHAPTER XVI 
 
 MASTER AND SERVANT ■ ' 
 
 253-255. The Relation Defined. 
 
 256. Statutory Regulation. 
 
 257-258. Creation of the Relation. 
 
 259-261. Termination of the Relation. 
 
 262-263. Remedies for Breach of Contract — Damages. 
 
 264. In Equity — Specific Performance — Injunction. 
 
 265-271. Rights, Duties, and Liabilities Inter Se. 
 272-275. Master's Liability for Injuries to Servant. 
 
 276. Rigks of Master against Third Persons. 
 
 277. Rights of Servant against Third Persons. 
 278-279. Master's Liability to Third Persons. 
 280-281. Servant's Liability to Third Persons. 
 
 THE RELATION DEFINED 
 
 253. Servants may be classified as-^ 
 
 (a) Apprentices and 
 
 (b) Hired servants. 
 
 254. An apprentice is a person, usually a minor, bound to a master 
 
 to learn an art or trade, and to serve him during the time 
 of his apprenticeship. 
 
 255. The relation of master and servant, other than apprentices, de- 
 
 pends entirely upon agreement between the parties, ex- 
 press or implied. It exists where one person enters into 
 the service of another, and devotes to him his personal 
 labor. 
 
 The relation of master and servant has from a very early period 
 been classed with that of husband and wife, parent and child, and 
 , guardian and ward, as one of the domestic relations ; and it is 
 still so treated in modern text-books, and in some of the modern 
 codes. This classification is accurate enough when applied to 
 slaves, apprentices, and domestic servants, but it is not accurate 
 
 (570) 
 
§§ 253-255) THE RELATION DEFINED 571 
 
 when applied to other servants, like clerks in stores and offices^ 
 laborers, employes of railroad companies, and many other employes 
 who are subject to the law governing the relation of master and 
 servant.^ Accuracy in classification, however, must, in this as in 
 many other cases, yield to usage, and the law applicable to all 
 kinds of servants will be considered. 
 
 Blackstone after referring to slavery, and showing that it can- 
 not exist in England, divides servants into (1) menial servants, 
 so called from being intra moenia, or domestics, who are generally 
 hired by the year ; (2) apprentices, who are usually bound for a 
 term of years, by deed indented or indentures, to serve their mas- 
 ters, and to be maintained and instructed by them; (3) laborers, 
 who are only hired by the day or the week, and do not live intra 
 moenia, as part of the family; and (4) stewards, factors, and bail- 
 iffs, who are employed rather in a superior and ministerial capacity, 
 and whom the law considers as servants pro tempore, with regard 
 to such of their acts as affect their master's or employer's proper- 
 ty." Reeve divides servants into (1) slaves, (2) apprentices, (3) 
 menial servants, (4) day laborers, and (5) agents of any kind.' 
 Kent divides them into (1) slaves, (2) hired servants, and (3) ap- 
 prentices.* This is the best classification, as hired servants include 
 all the other kinds mentioned by Blackstone and Reeve, except 
 slaves and apprentices. Under the constitution of the United 
 States, slavery can no longer exist in this country,' and it is there- 
 fore unnecessary to consider that class. There remain, then, to be 
 considered apprentices and hired servants. 
 
 Apprentices 
 
 Apprentices are persons, generally infants, bound to a master for 
 a term of years to learn some art or trade, and to serve the mas- 
 ter and be maintained by him during the term of the apprentice- 
 ship. It has been said that at common law an apprentice, to be 
 
 1 I^ank V. Herold, 63 N. J. Eq. 443, 52 Atl. 152, where it Is said that any 
 person who works for another for a salary is a servant in the eye: of the 
 law. 
 
 2 1 Bl. Comm. 425-427. 
 
 3 Reeve, Dom. Rel. (4th Ed.) 418. 
 *1 Kent, Comm. 247. 
 
 6 Amend, art. 13, of the federal Constitution, declares that "neither slavery 
 nor involuntary servitude, except as a punishment for crime whereof the 
 party shall have been duly convicted, shall exist within the United States, 
 or any place subject to their jurisdiction," 
 
572 MASTER AND SERVANT (Gh. 16 
 
 holden, must be bound by deed;" but this is doubtful, and there 
 are cases which hold that a writing not under seal is sufficient/ 
 At common law, indentures of apprenticeship are executed by the 
 father or guardian of the minor and the master. The former are 
 bound that the apprentice shall render the services contracted for 
 and the master is bound to teach the art or trade agreed upon, and 
 do whatever else he may have bound himself to do. For a breach 
 by either party, the other may maintain an action for damages. 
 At common law the minor need not join the indenture; and by 
 the better opinion, even were he to do so, he would not be bound. 
 For a breach on his part, the remedy is against the parent.' The 
 common law in relation to apprenticeship is no longer of much im- 
 portance, for the subject is almost entirely regulated by statute 
 both in England and in this country. There are statutes in most 
 states, if not in all, providing for the binding out of appre^itiees 
 by contract between the parent or guardian and the master. And 
 in most states, if not in all, there are statutes providing for the 
 binding out oi poor persons by the overseers of the poor or other 
 public officers. The master has a right to the services of his ap- 
 prentice,' and to all wages earned by the apprentice from others ; " 
 but he cannot assign the services of the apprentice to another.^" 
 The right to the services of the apprentice gives the master, as 
 in the case of other servants, a right of action against any person 
 who entices the apprentice away from him, or knowingly harbors 
 him if he has left without cause.^^ It also gives him a right of 
 action against any one who wrongfully injures the apprentice, and 
 thereby causes a loss of his services. ^^ 
 
 Hired Servants 
 
 The relation of master and servant, other than master and ap- 
 prentice, depends upon a contract of hiring, express or implied, 
 between the parties. ^^ The servant agrees with the master to ren- 
 der certain services, and the master agrees to pay therefor. Or the 
 service may be gratuitous. "A servant is one who is employed to 
 
 « Reeve, Dom. Rel. (4th Ed.) 420. 
 
 7 Crombie v. JIcGratb, 139 Mass. 550, 2 N. E. 100. 
 
 8 See Eeeve, Dom. Eel. (4th Ed.) 420-423, and American notes. 
 
 » Iteeve, Dom. Rel. (4th Ed.) 423. And see Bardwell v. Purrington, 107 
 Mass. 419. 
 
 10 Reeve, Dom. Rel. (4th Ed.) 425, 426, and notes; Randall v. Rotch, 29 
 Mass. (12 Pick.) 107; Turner v. Smithers, 3 Houst. (Del.) 430. 
 
 11 Post, p. 642. ' 12 Post, p. 642. is Post, p, 574.' 
 
§ 256) STATUTORY KEQULATION 573 
 
 render personal services to his employer, otherwise than in the pur- 
 suit of an independent calling, and, who in such service, remains 
 entirely under the control and direction of the latter, who is called 
 his 'master.'"^* The term "servant" includes, not only menial and 
 domestic servants, but all other employes who are hire;^ or who 
 volunteer to perform services for their employer, and who remain 
 under his direction and control during the time for which they are 
 hired. ^° Thus, i^ includes a bookkeeper or clerk in a business office, 
 a salesman in a shop, railroad employes, workmen in factories, etc. 
 All such employes are subject to the law governing the relation of 
 master and servant. 
 
 STATUTORY REGULATION, 
 
 256. The state, by virtue of the police power, may make such regu- 
 lations controlling the relation of master and servant as 
 may be necessary to preserve the public health, safety, or 
 general welfare. 
 
 In many states statutes have been enacted regulating the rela- 
 tion of master and servant in matters pertaining to the employrnent 
 of children and women,, and the hotlrs of labor, and intended to 
 insure the public welfare and the health and safety of employes.^^ 
 There are also federal statutes relating to hours of labor of railroad 
 employes,^' the character of appliances used in railroads,^* and the 
 liability of employers.^* Such statutes have been held to be valid 
 
 1* Civ. Code Cal. § 2009. The relation of master and servant exists when 
 the master not only has the right to select his servant, but has power 
 to remove and discharge hlni. A master is one who stands to another in 
 such relation that he not only controls the result of the work of that other, 
 but also may direct the manner in which it shall be done. McColligan v. 
 Pennsylvania R. Co., 214 Pa. 229, 63 Atl. 792, 6 U R. A. (N. S.) 544, 112 Am. 
 St. Rep. 739. 
 
 ] 5 Frank v. Herold, 63 ^". .T. Eq. 443, 52 Atl. 152 ; McColligan v. Pennsj'l- 
 vanla R. Co., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 
 739. 
 
 18 See the statutes of the various states. 
 
 "Hours of Service -ict March 4, 1907 (TJ. S. Comp. St. §§ 8677-8680); 
 Adamson Law (Act Sept. 3, 5,^ 1916 [U. S. Oomp. St. §§ 8680a-8680d]), fixing 
 an eight hour day as the basis of computing compensation for train men. 
 
 18 Safety Appliance Act March'2, 1893 (U. S. Comp. St. §§ 8605-8612). 
 
 "Employers' Liability Act (U. S. Comp. St. §§ 8657-8665.) 
 
574 MASTER AND SERVANT (Ch. 16 
 
 exercises of the police power,^" and unless open to some special 
 objection are constitutional.^^ 
 
 Of similar character are the Workmen's Compensation Acts 
 adopted by many states, materially modifying the common-law rules 
 as to the liability of the master for injuries to a servant. " 
 
 CREATION OF THE RELATION 
 
 257. The relation of master and servant, except in the case of ap- 
 
 prenticeship, is created by a contract of hiring between the 
 parties. This contract is governed by the principles of 
 law which apply to contracts generally. 
 
 (a) The contract may be either — 
 
 (1) Express^ as where it is evidenced by written or spoken 
 
 words, or 
 
 (2) Implied, as where it is evidenced by conduct. 
 
 (b) To be binding as between the parties, there must be a consia- 
 
 eration. 
 
 (c) The contract is subject to the general rules in regard to the 
 
 capacity of parties to contract. 
 
 (d) And it is subject to the general rules concerning mistake, 
 
 fraud, etc. 
 
 (e) The object of the agreement must not be unlawful. 
 
 (f) Under the statute of frauds, a contract of hiring that cannot 
 
 be performed within a year must be in writing. 
 
 258. If a person enters the service of another at the other's request, 
 
 the relation of master and servant exists for the time being, 
 though the services are intended to be gratuitous? but in 
 such a case there is no right to wages. 
 
 2 People V. Smith, 108 Mich. 527, 66 N. W. 382, 32 U B. A. 853, 62 Am. 
 St. Bep. 715; Andricus' Adni'r v. Pineville Coal Co.. 121 Ky. 724, 90 S. W. 
 233; Green v. American Car, etc., Co., 163 Ind. 135, 71 N. B. 268; Lenahan 
 V. Pittston Coal Min. Co., 218 Pa. 311, 67 Atl. 642, 12 U R. A. 461, 120 Am. 
 St. Rep. 885. 
 
 21 Ex parte Kair, 28 Nev. 425, 82 Pac. 453, 6 Ann. Cas. 893 (construing 
 Laws 1903, p. 38, c. 10) ; State v. Livingston Concrete Bldg. & Mfg. Co., 34 
 Mont. 570, 87 Pac. 980, 9 Ann. Cas. 204 (construing liaws 1905, p. 105, c. 
 50) ; Wenham v. State, 65 Neb. 394, 91 N. W. 421, 58 L. R. A. 825 (construing 
 Act March 31, 1899 [Laws 1899, p. 362, c. 107] relating to employment of 
 women) ; People v. City of Chicago, 256 111. 558, 100 N. B. 194, 43 L. R. A. 
 (N. S.) 954, Ann. C&s. 1913E, 305 (relating to hours of labor of women) ; 
 Holden V. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, affirming 
 
 2 2 See po.st, p. 685. 
 
§§ 257-258) CEEATION OP THE EELATION 575 
 
 The relation of master and apprentice has already been explained. 
 To constitute the relation of master and servant in other cases, a 
 contract or agreement between them, express or implied, is essen- 
 tial." The relation can only arise upon an agreement between the 
 parties. A man cannot compel another to labor for him ; nor, on 
 the other hand, can a person perform services for another without 
 his consent, and compel him to pay for them.^* So, it has been held 
 that if a servant of one man engages in temporary work for anoth- 
 er, on the false representation of the latter that his master has 
 directed him to do so, he does not thereby become a servant of the 
 other, so as to be held to assume the risk of negligence on the part 
 of the other servants of such person. ^° A person may be a servant 
 of another though his services are merely gratuitous. If a person 
 engages in the service of another at the latter's express or implied 
 request, though only for a temporary purpose, and with the under- 
 standing that he is to receive no compensation, he will not be en- 
 titled to wages, but the relation of master and servant will exist, for 
 other purposes. For instance, he will be entitled to recover like any 
 other employe for personal injuries caused by the master's negli- 
 gence ; *° and he will become a fellow servant of other employes so 
 as to assume the risk of their negligence; ^' and the master will be 
 liable to third persons for his negligence or wrongful acts in the 
 . course of the employment* 
 
 State V. Holden, H fJtah, 71, 46 Pac. 75.6, 37 L. B. A. 103 (holding Triali 
 "eight-hour law" constitutional) ; People v. Lochner, 177 N. Y. 145, 60 N. 'EL 
 373, 101 Am. St. Rep. 773; Green v. Appleton Woolen Mills, 162 Wis. 145, 
 155 N. W. 958 (Laws 1911, c. 479, § 1, subd. 2, relating to employment of 
 children) ; United States v. Baltimore & O. R. Co. (D: O.) 226 Fed. 220 (Hours 
 of Service Act [U. S. Comp. St. §§ 8677-8680]). Sec, also, Sumey v. Craig 
 Mountain Lumber Co., 27 Idaho, 721, 152 Pac. 181, and Indiana Quar- 
 ries Co. V. Farmer, 184 Ind. 411, 110 N. E. 549, relating to Employers' Lia- 
 bility Acts. But see People v. Williams, 189 N. T. 131, 81 iN. E. 778, 12 
 L. B. A. (N. S.) 1130, 121 Am. St. Rep. 854, 12 Ann. Cas. 798 (declaring 
 unconstitutional a statute relating to the employment of women between 
 9 p. m. and 8 a. m.). 
 
 28 Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St Rep. 
 289; Sax v. Detroit, G. H. & M. R. Co., 125 Mich. 252, 84 N. W. 314, 84 Am. 
 St. Rep. 572 ; Parker v. Wilson, 179 Ala. 361, 60 South. 150, 43 L. R. A. (N. 
 S.) 87 ; Louisville & N. R. Co. v. Pendleton's Adm'r, 126 Ky. 605, 104 S. W. 
 382, 31 Ky. Law Rep. 1025. 
 
 2* Clark, Cont. 30; Bartholomew v. Jackson, 20 Johns. (N. Y.) 28, 11 Am. 
 Dec. 237 ; Taylor v. Laird, Law J. 25 Exch. 329 ; Caldwell v. Eneas, 2 Mill, 
 Const (S; C.) 348, 12 .Am. Dec. 681. 
 
 2 6 Kelly V. Johnson, 12S Mass. 530, 35 Am. Rep. 398. 
 
 26 Johnson v. Water Co., 71 Wis. 553, 37 N. ,WL 823, 5 Am. St. Rep. 243. 
 
 27 Post, p. 621. 2 "Post, p. 645. 
 
576 MASTER AND SERVANT (Ch. 16 
 
 Implied Contract 
 
 The contract need not be express — that is, it need not be evi- 
 denced by written or spoken words; but, like other contracts, it 
 may be implied from the conduct of the parties. Thus, if a man 
 labors for another, at the other's request, or with the other's knowl- 
 edge and acquiescence, and under such circumstances that the oth- 
 er ought reasonably to know that compensation is expected, the 
 law will imply a contract, and compensation may be recovered.^" 
 The contract in such cases is implied as a matter of fact, and there 
 must be nothing to show that no contract was intended.^" If serv- 
 ices are performed for another without his knowledge, no contract 
 will be implied.^^ If the parties stand in a family or quasi family re- 
 lation towards each other, and the services consist in household or 
 other family duties performed by one for the other, the presumption 
 is that no compensation was intended; and, in order to recover there- 
 for, a contract must be shown afi&rmatively.^'' The presumption in 
 
 2 9 01ark, Cont. 25; Day v. Caton, 119 Mass. 513, 20 Am. Rep. 347; Huck 
 V. Flentye, 80 111. 258 ; Tucker v. Pre.ston, 60 Vt. 473, 11 Atl. 726 ; McMillan 
 V. Page, 71 "Wis. 655, 38 N. W. 173 ; Jincey v. Winfield's Adm'r, 9 Grat. (Va.) 
 708; Curry v. Curry, 114 Pa. 367, 7 Atl. 61. 
 
 30 See note to Orr v. Brown, 16 0. C. A. 201; Cicotte v. Catholic Church, 
 60 Mich. 552, 27 N. W. 6S2; Gross v. Oadwell, 4 Wash. 670, 30 Pac. 1052. 
 Thus, it has been held that where parties are in the habit of mutually 
 receiving and rendering services, with no present thought of charging or 
 paying therefor, no recovery can be had by either for services rendered, un- 
 less a special contract is shown, or there are circumstances which rebut 
 the inference arising from their course of conduct that the services were 
 intended' to be gratuitous. Grossi v. Oadwell, supra. See, also, Potter v. 
 Carpenter, 76 N. Y. 157; Dunlap v. Allen, 90 111. 108; Oovel v. Turner, 74 
 Jlich. 408, 41 N. W. 1091. In Raysor v. Lumber Co., 26 S. C. 610, 2 S. E. 
 119, the plaintifE, who was already employed by defendant, demanded an 
 increase of wages to commence January 1, 1885, and gave due notice to de- 
 fendant's agent that he would leave unless such increase was made. The 
 agent did not assent, but said that he would give an answer in two or three 
 days. He failed to give any answer for several months, and allowed plain- 
 tiff in the meanwhile to continue at work. Then plaintiff was told that his 
 salary would be increased as demanded, but to commence May 1, 1885. It 
 was held that the silence of the agent did not raise any implication of 
 assent on the part of the defendant to an increase of salary from January 
 1st, since the services, in the absence of an express new contract, would be 
 referred to the existing contract. 
 
 31 Taylor v. Laird, Law J. 25 Exch. 329; Bartholomew v. Jackson, 20 
 Johns. (N. T.) 28, 11 Am. Dec. 237 ; Willis v. Railway Co., 72 Mich. l6o, 40 
 N. W. 205. 
 
 82 Clark, Cont. 28, and cases there cited ; note to Orr v. Brown, 16 C. C. A. 
 202, collecting cases; TJlrich v. Arnold, 120 Pa. 170, 13 Atl. S31; Heffron 
 V. Brown, 155 111. 322, 40 N. K 583 ; Dunlap v. Allen, 90 111. 108 ; Harris v. 
 
§§ 257-258) CEBATION OP THE RELATION 577 
 
 such cases may be rebutted, however, not only by showing an ex- 
 press contract, but also by showing circumstances and conduct 
 from which it may be inferred that there was an agreement for com- 
 pensation.'' 
 
 If, after expiration of a contract of hiring for a specified period, 
 the servant continues in the master's service with his consent or ac- 
 quiescence, without any further express agreement, a new contract 
 of hiring, on the same terms and for the same period as the former 
 one, will be implied, unless there are special circumstances showing 
 a contrary intention.'* Thus, if the nature of the services to be 
 rendered is entirely different, the presumption will not, as a rule, 
 
 Smith, 79 Mich. 54, 44 N. W. 169, 6 L. R. A. 702. This principle is clearly 
 applicable where the parties occupy the relation of parent and child. See 
 Ulrich V. Arnold, 120 I'a. 170, 13 Atl. 831 ; Bantz v. Bantz. .52 Md. 693 : Cow- 
 .in V. MiisRrave, 73 Iowa, 384. 35 N. W. 496; Howe v. North, 69 Mich. 272, 
 37 N.W. 213; Allen v. 'Allen, 60 Mich. 635, 27 N. W. 702; Bostwick v. Bost- 
 wick's Estate, 71 Wis. 273, 37 N. W. 405; Curry v. Curry, 114 Pa. 367, 7 Atl. 
 61. The same presumption arises where one of the parties stands in loco 
 parentis to the other. Harris v. Smith, 79 Mich. 54, 44 N. W. 169, 6 I/. R. A. 
 702; Dodson v. McAdams, 96 N. 0. 149, 2 S. E. 453, 60 Am. Rep. 408; Ormshy 
 V. Rhoades, 59 Vt. 505, 10 Atl. 722; Barhite's Appeal. 126 Pa. 404, 17 Atl. 
 617. And it arises where the parties are but distantly related, or not re- 
 lated at all, but the .connection between them is of a household or family na- 
 ture. Feiertag v. Feiertag, 73 Mich. 297, 41 N. W. 414; Bruner v. Mosner, 
 116 App. Div. 298, 101 N. Y. S. 53S; CoUar v. Patterson, 1.37 111. 403, 27 N. 
 B. 604 ; Cone v. Cross, 72 Md. 102, 19 Atl. 391 ; Disbrow v. Durand, 54 N. J. 
 Law, 343, 24 Atl. 545, 33 Am. St. Rep. 678 ; Gerz v. Weber, 151 Pa. 396, 25 Atl. 
 82 ; Collyer v. Collyer, 113 N. Y. 442, 21 N. E. 114 ; Covel v. Turner, 74 Mich. 
 408, 41 N. W. 1091. 
 
 , 33 See HefCron y. Brown, 155 111. 322, 40 N. B. 583; McMillan v. Page, 71 
 Wis. 655, 38 N. W. 173; Guild v. Guild, 15 Pick. (Mass.) 129. 
 
 34Appleton Waterworks Co. v. City of Appleton, 132 Wis. 563, 113 N. W. 
 44; Fish v. MarzlufC, 128 111. App. 549; Houston Ice & Brewing Co. v. 
 Nicolini (Tex. Civ. App.) 96 S. W.. 84 ; Mendelson v. Bronner, 124 App. Div. 
 396, 108 N. Y. Supp. 807 ; Trefflnger v. M. Groh's Sons, 112 App. Div. 250, 98 
 N. Y. Supp. 291; Douglass v. Merchants' Ins. Co., 118 N. Y. 484, 23 N. E. 
 806, 7 L. R. A. 822; INGALLS v. ALLEN, 132 111. 170, 23 N. E. 1026; Cooley 
 Cas. Persons and Domestic Relations, 300; Weise v. Supervisors, 51 Wis. 
 564,. 8 N. W. 295 ; Wallace v. Floyd, 29 Pa. 184, 72 Am. Dec. 620 ; Nicholson 
 V. Patchin, 5 Cal. 474; Huntingdon v. Claffln, 38 N. Y. 182; Standard Oil 
 Co. V. Gilbert, 84 Ga. 714, 11 S. B. 491, 8 L. R. A. 410; Lalande v. Aldrich, 
 41 La. Ann. 307, 6 South. 28; Grover & Baker Sewing Mach. Co. v. Bulkley, 
 48 111. 1S9; Sines v. Superintendents of Poor, 58 Mich. 503, 25 N. W. 485; 
 Adams v. Fitzpatrick, 56 Sui)er. N. Y. , 580, 5 N. Y. Supp. 181 ; Hodge v. 
 Newton, 14 Daly (N. Y.) 372 ; McCullough Iron Co. v. Carpenter, 67 Md. 554, 
 11 Atl. 176; Lister's Agricultural Chemical Works v. Pender, 74 Md. 15, 21 
 Atl, 686. 
 
 TIFP.P.& D.Rel.(3d Ed.)— 37 
 
578 MASTER AND SERVANT (Ch. 16 
 
 arise.*' And generally the presumption, being one of fact, may be 
 rebutted by evidence of circumstances, showing a contrary inten- 
 tion.^" 
 Validity of the Contract — Mutual Assent — Considerations-Capacity of 
 
 Partiis — Reality of Consent — Illegality 
 
 The contract of hiring is governed by all the principles of law 
 which apply to other contracts. In the first place, there must be 
 mutual assent, or offer and acceptance." As has just been seen, 
 however, mutual assent may be implied from the conduct of the 
 parties.*' 
 
 There must also be a valid consideration. The promise of one 
 party to serve, and the promise of the other to permit him to do so, 
 and to pay him, are each a sufiacient consideration for the other, 
 for a promise is a sufficient consideration, for a promise.*' The 
 promises must be mutually binding, however; for, if there is no 
 mutuality, a contract of hiring is as void as any other contract 
 would be.*" 
 
 The principles of law in regard to the capacity of the parties to a 
 contract apply with full force to a contract of hiring.*^ A contract 
 of hiring by an infant does not bind him, but is voidable at his op- 
 tion.*^ He may at any time repudiate the contract, and recover 
 on the quantum meruit for the services rendered. The adult is 
 bound if the infant chooses to hold him.** 
 
 3 5 INGALLS V. ALLEN, 132 111. 170, 23 N. E. 1026, Cooley Gas. Persons and 
 Domestic Relations, 300; Burton v. Behan, 47 La. Ann. 117, 16 South. 769; 
 Bwing V. Janson, 57 Ark. 237, 21 S. W. 430 ; Reed v. Swift, 45 Cal. 255. 
 
 3« INGALLS v. ALLEN, 132 111. 170, 23 N. B. 1026, Cooley Cas. Persons and 
 Domestic Relations, 300 ; Hale v. Sheeban, 41 Neb. 102, 59 N. W. 554 ; Home 
 Eire Ins. Co. v. Barber, 67 Neb. 644, 93 N. W. 1024, 60 L. R. A. 927, 108 
 Am. St. Rep. 716; Dlckin.son v. Norwegian Plow Co., 96 Wis. 376, 71 N. W. 
 606; Id., 101 Wis. 157, 76 N. W. 1108. 
 
 37 Hooker v. Hyde, 61 Wis. 204, 21 N. W. 52; King v. Seaboard Air Line 
 Ry. Co., 140 N. C. 433, 53 S. E. 237; International Harvester Co. v. Campbell, 
 43 Tex. Civ. App. 421, 96 S. W. 93 ; Smith v. Williams, 123 Mo. App. 479, 100 
 S. W. 55. See, as to offer and .acceptance generally, Clark, Cont. p. 21. 
 
 ssAnte, p. 576. And see Smith v. Williams, 123 Mo. App. 479, 100 S. W. 55. 
 
 3 Clark, Cont. 165. The dismissal of a suit of damages, brought by an 
 injured employe of a railroad company, is a sufficient consideration for a 
 contract for his future employment so long as his services are satisfactory. 
 Lake Erie & W. Ey. v. Tierney, 29 Ohio Cir. Ct. R. 83. 
 
 *o Clark, Cont. 168-171. ' 
 
 41 Clark, Cont. 210 et seq. 
 
 *2 As to contracts of Infants generally, see ante, p. 471, 
 
 48 Clark, Cont. 221 et seq.; Derocher v. Continental Mills, 58 Me. 217, 4 
 Am. Rep. 286. 
 
§§ 257-258) CREATION OP THE BELATION. 579 
 
 The contract of hiring is affected, like other contracts, by fraud, 
 duress, and mistake,** and, like other contracts, it must not be ille- 
 gal.*" For instancfe, a contract to serve another in a business which 
 is unlawful, as in selling intoxicating liquors in violation of law, or 
 in conducting a gambling house or lottery or bawdy house, could 
 not be enforced,*' unless the servant were ignorant of the purpose 
 or object rendering the agreement qnlawful. In the latter case He 
 could recover for services rendered.*'' 
 
 Necessity for Written Contract — Statute of Frauds 
 
 Unless writing is required by some statute, 3, contract may be 
 either in writing or oral, or as we have seen, it may be implied from 
 conduct. Under the statute of frauds, a contract not to be per- 
 formed within a year must be in writing, or no action can be main- 
 tained upon it.** This applies, of course, to contracts of hiring. ■ A 
 contract for a year's service, to commence on a future day, is within 
 the statute ; ** and so is a contract to begin as soon as the employe 
 can, and actually beginning a week after the agreement."" If the 
 service is for a year, and it is agreed that it is to commence at once, 
 or if no time. for commencement of the service is named, in which 
 case it is to commence at once, the contract is not within the stat- 
 ute."^ It has been held that a contract for a year's service, 
 to commence the day after the agreement is made, is within the 
 statute, for the law does not regard fractions of a day; "^ but there 
 are decisions to the contrary. °° If the agreement may be perform- 
 
 ** See Clark, Cont. 288 et seq. 
 
 4BA contract to give one permanent employment is not contrary to public 
 policy. Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. 
 Rep. 289. 
 
 *B See Clark, Cont. 374; Spurgeon v. McElwain, 6 Ohio, 442, 27 Am. Dee. 
 266; SuUivan v. Horgan, 17 R. I. 109, 20 Atl. 232, 9 L. E. A. 110; Blerbauor 
 y. Wirth (C. C.) 5 Fed. 336: The Pioneer, Deady, 72 Fed. Cas. No. 11,177. 
 
 *^ Clark, Cont. 475; Emery v. Kempton, 2 Gray (Mass.) 257; Roys v. John- 
 son, 7 Gray (Mass.) 162 
 
 *8 Clark, Cont. 109. 
 
 <» Snelling v. Lord Hnntlngfleld, 1 Cromp, M. & R. 19; Bracegirdle v. 
 Heald, 1 Barn. & Aid. 723 ; SutclifCe v. Atlantic Mills, 13 R. I. 480, 43 Am. 
 Rep. .39; Kleeman v. Collins. 9 Bush. (Ky.) 460; Nones v. Homer, 2 Hilt. 
 (N. Y.) 116 ; Broadwell v. Getman, 2 Denio (N. T.) 87 ; Comes v. Lamson, 16 
 Conn. 246 ; Sharp v. Ehlel, 55 Mo. 97; Hearne. v. Chadbourne, 65 Me. 302. 
 
 so SutclifCe V. Atlahtic Mills, 13 R. I. 480, 43 Am. Rep. 39. 
 
 01 RusseU v. Slade, 12 Conn. 455. 
 
 5 2 Dickson v. Frisbee, 52 Ala. 165, 23 Am. Rep. 565; Cav^thorne v. Cordrey, 
 13 C. B. (N. S.) 406. 
 
 03 Billington v. Cahill, 51 Hun, 132, 4 N. X. Supp. 660. 
 
580 MASTER AND SERVANT (Ch. 16 
 
 ed within the year, it is not within the statute."* If services are 
 performed under a contract within the statute, there may be a re- 
 covery on the quantum meruit." 
 
 t:ermination of the relation 
 
 259. A contract of hiring is discharged or terminated like any other 
 
 contract. It may be discharged, for instance — 
 
 (a) By agreement. And this may be — 
 
 (1) By waiver, cancellation, or rescission. 
 
 (2) By substituted agreement. 
 
 (3) By the happening of conditions subsequent in accord- 
 
 ance with the express or implied terms of the contract. 
 
 (b) By performance. 
 
 (c) By breach. 
 
 (d) By impossibility of performance under some circumstances. 
 
 260. A breach of the contract by the master entitles the servant to 
 
 leave. Such a breach may be — 
 
 (a) By renotmcing the contract. 
 
 •(b) By rendering performance or further performance impos- 
 sible. 
 
 (c) By breach of particular terms of the contract, express or im- 
 plied, as by failure to pay the wages agreed, or by ill treat- 
 ment of the servant. 
 
 261. A breach of the contract by the servant entitles the master to 
 
 discharge him. Such a breach may be — 
 
 (a) By renunciation of the contract. 
 
 (b) By rendering performance or further performance by him 
 
 impossible. 
 
 (c) By breach of particular terms of the contract, express or 
 
 implied, as — 
 
 (1) By incompetency. 
 
 (2) By criminal or grossly immoral conduct. 
 
 (3) By willful disobedience. 
 
 (4) By habitual neglect. 
 
 5* Clark, Cont. 109-111. As an agreement to work for a company "for 
 five years, or so long as A. shall continue to be agent for the company," 
 Roberts v. Rockbottom Co., 7 Mete. (Mass.) 47; or an agreement to employ 
 a person so long as he may be disabled from an injury which he has re- 
 ceived. East Tennessee, V. & G. R. Co. v. Staub, 7 Lea- (Tenn.) 397. 
 
 5 5 Clark, Cont. Ill, 112, notes, and cases cited; Baker v. Lauterbach 68 
 Md. 64, 11 Atl. 703 ; Towsley v. Moore, 30 Ohio St. 185, 27 Am. Rep. 434 ' 
 
§§ 259-261) TERMINATION OF THE RELATION 581 
 
 The relation of master and servant may be determined in various 
 ways. It is determined whenever the contract of hiring is dis- 
 charged, and therefore we must refer to the principles of law in 
 regard to the discharge of contracts generally. 
 
 Discharge of Contract by Agreement 
 
 In the first place, a contract of hiring may, like other contracts, 
 be discharged by agreement between the parties. And this may 
 be either (1) by subsequent agreement waiving, canceling, or re- 
 scinding the contract, or substituting a new agreement; or (2) 
 by the happening of conditions subsequent expressed or implied 
 in the contract."* 
 
 Same — Waiver, Cancellation, or Rescission — Substituted 'Agreement 
 
 A contract of hiring may always be discharged by an agreement 
 between the parties to it that it shall no longer be binding upon 
 them;°^ but this agreement is subject to the rule, which governs 
 all other simple contracts, that there must be a consideration. °' 
 So, too, a resignation, tendered by the employe and accepted by the 
 employer, is, in the absence of fraud, duress, or mistake, a binding 
 contract, which terminates the employment."" A substitution of 
 a new contract of hiring is a waiver of the prior contract, and the 
 rights of the parties are thereafter determined by the new con- 
 tract." 
 
 6 6 See Clark, Cont. 607-627. 
 
 57 Pray v. Standard Mectric Co., 155 Mass. 561, 30 N. E. 464. Therefore, 
 if ii servant hired for a specified term is discharged with his consent, he can- 
 not complain, nor recover salary for the remainder of the term. Southmayd 
 V. Insurance Co., 47 Wis. 517, 2 N. W. 1137; Grannemann v. Kloepper, 24 111. 
 App. 277. 
 
 58 Clark, Cont. 608. 
 
 5 9 New York Life Ins. Co. v. Thomas, 47 Tex. Civ. App. 150, 103 S. W. 423: 
 Ivey v. Bessemer City Cotton Mills, 143 N. C. 189, 55 S. E. 613. If a resig- 
 nation is not accepted as offered, the acceptance is not binding on the em- 
 ploye. Capps V. University of Chicago, 166 111. App. 485. 
 
 60 Clark, Cont. 610. A contract of hiring may be thus discharged either by 
 the making of an entirely new and independent contract, or by the in- 
 troduction of new terms. In the latter case the new contract consists of 
 the new terms and so much of the original contract as remains unchanged. 
 Clark, Cont. 611. There need be no express waiver of the old contract, or 
 of some of its terms, to constitute a discharge by substituted agreement. A 
 new contract inconsistent with the original impliedly discharges the latter. 
 Clark, Cont. 611, 612, and cases there collected. A mere change in the duties 
 of the servant in no wise affects a contract prescribing a period of serv- 
 ice. Kinney v. Calumet Pub. Co., 167 111. App. 369. 
 
582 MASTER AND SERVANT (Ch. 16 
 
 Same — Happening of Conditions Subsequent 
 
 A contract of hiring, like other contracts, may contain within 
 itself express or implied' provisions for its determination under cer- 
 tain circumstances. Such provisions are called "conditions subse- 
 quent." 
 
 The contract may give one of the parties the right to terminate 
 it upon the nonfulfillment of a specified term. If the term is not 
 fulfilled, and the party terminates the contract, there is no breach, 
 but the contract is rightfully determined." If a servant is em- 
 ployed for a specified time to carry on the master's business, or 
 do other work, "to the master's satisfaction," the master has a 
 right to discharge him whenever he becomes, in good faith, dis- 
 satisfied with him.*^ Some courts hold that the master is the sole 
 judge whether the servant is satisfactory, and that the courts can- 
 not determine whether his dissatisfaction was reasonable.*' A hir- 
 ing to last so long as each party is satisfied is a hiring at will, and 
 may be terminated at any time by either.'* So the parties may in- 
 
 61 Clark, Cont. 622-627. 
 
 82 Oorgan v. Geo. F. Lee Coal Co., 218 Pa. 3S6, 67 Atl. 655, 120 Am. St 
 Kep. 891, 11 Ann. Cas; 838; Beissel v. Vermillion Farmers' Elevator Co., 102 
 Minn. 229, 113 N. W. 575, 12 L. R. A. (N. S.) 403 ; Frary v. American Rubber 
 Co., 52 Minn. 264, 53 N. W. 1156, 18 L. R. A. 644; Anvil Min. Co. v. Hum- 
 ble, 15i3 U. S. 540, 14 Sup. Ct. 876, 38 L. Ed. 814. It Is sufficient if the master 
 was in good faith dissatisfied, though his dissatisfaction is unreasonable. 
 Starkweather v. Emerson Mfg. Co., 132 Iowa, 266, 10& N. W. 719. But see 
 Lake Erie & W. Ry. Co. v. Tierney, 29 Ohio Cir. Ct. R. 83 (judgment affirmed 
 in 75 Ohio St. 565, 80 N. E. 1128), where it is held that dissatisfaction with 
 the services of an employe engaged to render services as long as they "were 
 satisfactory such as to justify a discharge must be a reasonable dissatisfac- 
 tion, and not an arbitrary one, and the good faith of the company in claim- 
 ing such services to be unsatisfactory will not alone justify the discharge, 
 if the services rendered were, in fact, such as ought to have been satisfactory 
 to a reasonable employer. The master is liahle as for a wrongful discharge, 
 if the alleged dissatisfaction is not in good faith. Farmer v. Golde Clothes 
 Shop, 225 Mass. 260, 114 N. B. 303. 
 
 63 International Harvester Co. v. Boatman, 122 111. App. 474; Krom- 
 pier V. Spivek, 170 111. App. 621; Saxe v. Shubert Theatrical Co., 57 Misc. 
 Rep. 620, 108 N. Y. Supp. 683 ; Watkins & Thurman v. Napier, 44 Tex. Civ. 
 App. 432, 98 S. W. 904; Allen v. Mutual Compress Co., 101 Ala. 574, 14 
 South. 302 ; Koehler v. Bulil, 94 Mich. 496, 54 N. W. 157 ; Crawford v. Mail 
 & Express fub. Co., ie>'i N. Y. 404, '67 N. E. 616, distinguishing Smith v. Rob- 
 son, 148 N. Y. 252, 42 N. E. 677, in which the contract expressly providec^ that 
 there must be good faith ou the part of the master in determining the ques- 
 tion of dissatisfaction. 
 
 64 Hvans v. Bennett, 7 Wis. 404 ; Booth v. Ratclifte, 107 N. C. 6, 12 S. E.. 
 112; Wilmington Coal Min. & Mfg. Co. v. Lamb, 00 111. 465. 
 
§§ 259-261) TERMINATION OF THE RELATION 583 
 
 troduce into their contract a provision that the occurrence of a 
 spec-.fied event shdl terminate the contract, and discharge them 
 both from further liability under it."" 
 
 A contract of hiring may contain a provision, express or implied, 
 making it determinable at the option of one or either of the par- 
 ties upon certain terms. Where the contract expressly provides 
 that it may be terminated by either party on giving a specified no- 
 tice, and the servant is dismissed on such notice, the contract is 
 discharged, and not broken."" Terms like this need not necessari- 
 ly be expressed in the contract; but they may be imported into it 
 by custom and usage."^ A custom or usage, however, can never 
 affect a contract if it is inconsistent with its terms." ^ If the con- 
 - tract fixes no time during which it is to last, and no time is fixed 
 by law or by usage, it may be determined at the will of either party 
 at any time ; the hiring being construed as a hiring at will."" The 
 circumstances may show a contrary intention, and the intentions 
 
 85 Puller V. Downing, 120 App. Div. 36, 104 N. T. Supp. 991, where the con- 
 tract authorized the employer to terminate the contract on four months' no- 
 tice, In case he wished to form a combination with other manufacturers in 
 the same line of business, and it was held that the master was bound to ex- 
 ercise good faith in terminating the contract under such provision. 
 
 66 Jenkins v. Long, 8 Md. 132; White Sewing Mach. Co. v. Shaddock, 79 
 Ark. 220, 95 S. W. 143. Provisions ag to notice must as a rule be strictly 
 complied with. Basse v. Allen, 43 Tex. 481; City of Indianapolis v. Bly, 39 
 Ind. 373. The provision may, of course, be waived. Nashua & L. R. Corp. 
 v. Paige, 135 Mass. 145.i 
 
 6' Clark, Cont. 580-^86 (where the requisites of a custom or usage are 
 shown); Parker v. Ibbetson, 4 C. B. (N. S.) 347. 
 
 88 Clark, Cont. 586 ; Baltimore Baseball Club & Exhibition Co. v. Pickett, 
 78 Md. 375, 28 Atl. 279, 22 L. R. A. 690, 44 Am. St. Rep. 304 ; Greenstine v. 
 Borchard, 50 Mich. 434, 15 N. W. 540, 45 Am. Rep. 51; Seavey v Shurick, 
 110 Ind. 494, 11 N. E. 597. 
 
 89 The Pokanoket, 156 Fed. 241, 84 C. C. A. 49; Odom v. Bush, 125 Ga. 184, 
 53 S. E. 1013; Frank v. Manhattan Maternity & Dispensary (Sup.) 107 N. 
 T. Supp. 404 ; Summers v. Phenix Ins. Co., 50 Misc. Rep. 181, 98 N. Y. Supp. 
 226; Coffin v. Landis, 46 Pa. 426; Peacock v. Oummings, Id. 434; Green- 
 burg V. Early, 4 Misc. Rep. 99, 23 N. Y. Supp. 1009 ; Attrill v. Patterson, 58 
 Md. 226; Walker v. Denison, 86 111. 142; Fawcett v. Cash, 5 Barn. & Adol. 
 904 ; Hathaway v. Bennett, 10 N. Y. 108, 61 Am. Dec. 739 ; Evans v. Bennett, 
 7 Wis. 404. A contract for a specified period, "unless sooner determined," 
 is not a hiring at will, but is a hiring fpr the period named. Niagara Fire 
 Ins. Co. V. Whittaker, 21 Wis. 329. An agreement to give a person "perma- 
 nent" employment means nothing more than that the employment is to con- 
 tinue indefinitely, and until one or the other of t^e parties desires, for some 
 good reason, to sever the relation. Lord v. Goldberg, 81 Cal. 596, 22 Pac. 
 1126, 15 Am. St. Rep. 82; Bentley v. Smith, 3 Ga. App. 242, 59 S. E. 720. 
 
584 MASTER AND SERVANT (Ch. 16 
 
 of the parties must govern, of course.'^" The fact that the wages 
 are payable at specified periods does not necessarily show that the 
 hiring was for the specified period, and not a hiring at will, nor, 
 on the other hand, that it was not a hiring for a longer period than 
 specified.''^ As we have seen, where a servant who is hired for a 
 specified period continues to serve after expiration of the term with 
 the master's consent, but without any new arrangement, a contract 
 for another similar period will be implied, and riot a hiring at will.^^ 
 
 '"A. addressed a letter to B., offering him $100 per month for his services, 
 and stated: "If you give me satisfaction at the end of the first year, I will 
 increase your wages accordingly." The offer was accepted by B. The court, 
 in construing the contract, held it a hiring for one year. Norton v. Cowell, 
 eg Md. 359, 4 Atl. 408, 57 Am. Eep. 331. In Smith v. Theobald, 86 Ky. 141, 
 S S. W. 394, a letter engaging an hotel manager "at $125 per month" show- 
 ed upon its face that the engagement contemplated his giving up another po- 
 sition, removing with his family to another place, several hundred miles 
 away, and undertaking there, besides his duties as manager, those of sec- 
 retary and treasurer of the hotel company. It was held that the letter could 
 not be construed as an employment by the month or at will, but must be held 
 to import an engagement by the year. 
 
 71 Frank v. Manhattan Maternity & Dispensary (Sup.) 107 N. Y. Supp. 404; 
 The Pokanoket, 156 Fed. 241, 84 C. C. A. 49 T Summers v. Phenix Ins. Co., 50 
 Misc. Kep. 181, 98 N. Y. Supp. 226; Babcock & Wilcox Co. v. Moore, 62 Md. 
 161; McCullough Iron Co. v. Carpenter, 67 Md. 554, 11 Atl. 176; Beach v. 
 Mullin, 34 N. J. Law, 343 ; Tatterson v. Manufacturing Co., 106 Mass. 56 ; 
 Prentiss v. Ledyard, 28 Wis. 131; Thomas v. Hatch, 53 Wis. 296, 10 N. W. 
 393 ; Haney v. Caldwell, 35 Ark. 156 ; Larkin v. Hecksher, 51 N. J. Law, 133, 
 16 Atl. 703, 3 L. R. A. 137. Payment of wages quarterly, monthly, or week- 
 ly is not inconsistent with a yearly hiring. Norton v. Cowell, 65 Md. 359, 
 4 Atl. 408, 57 Am. Rep. 331 ; Tatterson v. Manufacturing Co., 106 Mass. 56. 
 Or with a hiring at will. Marquam v. Domestic Engineering Co., 210 111. App. 
 837. Agreement to pay at a yearly rate is not necessarily a hiring for a year. 
 Prentiss v. Ledyard, 28 Wis. 131 ; Cuppy v. Stollwerck Bros., 216 N. Y. 591, 
 111 N. E. 249, reversing 158 App. Dlv. 628, 143 N. Y. Supp. 967. But the 
 time for payment of wages will determine the duration of the employment, 
 if there is nothing in tjje case to rebut the inference arising therefrom. Crone- 
 millar v. Duluth-Superior Milling Co., 134 Wis. 248, 114 N. W. 432; Doo- 
 little V. Pacific Coast Safe & Vault Works, 79 Or. 498, 154 Pae. 753. Thus, 
 a hiring for a certain sum per month or per week is a hiring by the month or 
 week, as the case may be, if nothing is said as to the length of time the 
 service is to continue, and no other circumstances appear. Magarahan v. 
 Wright, 83 Ga. 773, 10 S. E. 584; Odom v. Bush, 125 Ga. 184, 53 S. E. lOls! 
 A contract that the servant's "salary from Nov. 1st will be per month, at 
 the rate of $500 a year," makes the employment by the month. Pinckney v 
 Talmage, 32 S. C. 364, 10 S. E. 1083. 
 
 '2 Ante, p. 577, and cases there cited. One who hires himself on a cbntract 
 for a year, and afterwards continues without any new contract, is again im- 
 pliedly hired by the year, and neither he nor his employer can terminate the 
 engjigeraent at his pleasure. McCullough Iron Co. v. Carpenter, 67 Md. 
 
§§ 259-261) TEEMINATION OF THE RELATION 585 
 
 In every contract of hiring, certain provisions for discharge are 
 implied. If the servant proves incompetent, or wrongfully acts 
 in such a way as to injure the master's business, or is otherwise 
 guilty of breach of duty, the master may rightfully discharge him. 
 This, however, is a breach of contract by the servant discharging 
 the master from further liability under the contract, and will there- 
 fore be considered in treating of discharge by breach." 
 
 Discharge of Contract by Performcmce 
 
 The contract of hiring is discharged by full performance by both 
 parties. If a person is hired for a specified time, and he works for 
 that time, and is paid, the contract is at an end without the ne- 
 cessity of any notice.'^* The parties may, however, make a new 
 contract for a further term; and such a contract will be implied 
 if the servant continues to labor, and the master acquiesces.''* The 
 question as to what constitutes sufficient performance is consider- 
 ed in treating of breach of contract. As to tender and payment, 
 reference must be made to works on the general law of contracts.'* 
 
 Discharge of Contract by Breach 
 
 A breach, by either party, of the obligations imposed by the con- 
 tract of hiring, gives the other party a right of action for any dam- 
 ages he may have sustained, and as a rule, though not always, 
 discharges the other party from any further liability under the con- 
 tract." 
 
 Same — Breach by Master 
 
 If the master renounces the contract either before the time for 
 performance, or in the course of performance, as by wrongfully 
 discharging the servant, the servant may treat the contract as brok- 
 en and discharged, and sue at once for damages, without holding 
 himself ready or offering to perform or further perform the con- 
 tract on his part.'' The same is true where the master, either be- 
 
 554, 11 Atl. 176. Curtis v. Dodd & Struthers, 172 Iowa, 521, 154 N. W. 872; 
 Morris v. Z. T. Brlggs PliotograpMc Supply Co., 192 Mo. App. 145, 179 S. W. 
 783. 
 
 73 Post, p. 588. 
 
 T* Ewing«7. Janson, 57 Ark. 237, 21 S. W. 430. And see Wliitmore v. Wern- 
 er (Sup.) 88 N. Y. Supp. 373, and Dodson-Braun Mfg. Co. v. Dix (Tex. Civ. 
 App.) 76 S. W. 451, when the hiring was by the month. 
 
 7 6 Ante, p. .^)77. 
 
 '8 See Clark, Cont. 629-643. 
 
 7 7 Clark, Cont. p. 643. 
 
 78 Clark, Cont. 646-648; Hochster v. De la Tour, 2 El. & HI. 678; Howard 
 
586 MASTER AND SERVANT (Gh. 16 
 
 fore the time for performance or in the course of performance, does 
 sqxae act by which he makes performance or further performance 
 impossible." If a master wrongfully discharges his servant, he 
 cannot, by subsequently ordering the servant to return to work, 
 put the servant in default. After a wrongful dismissal the con- 
 tract is discharged, and the servant need not return, though re- 
 quested to do so.*" 
 
 It is a general principle of the law of contracts that renunciation 
 of the contract by one of the parties does not discharge the other 
 unless ]ie choose to treat it as a discharge; that it is'optional with 
 him to treat the contract as still in force. *^ This principle has 
 been applied by some of the courts to contracts of hiring, and 
 it has been held that, where the master discharges the servant 
 without cause, the servant need not treat the contract as at an 
 end, but may hold himself in readiness to perform, and recover 
 each installment of wages, as it falls due, during the period for 
 which he was employed.*^ Other courts refuse to recognize this 
 doctrine — the doctrine of constructive service, as it is called — but 
 hold, on the contrary, that, where the master renounces the con- 
 tract and dismisses the servant before the end of the term, the 
 
 V. Daly, 61 N. Y. 362, 19 Am. Rep. 285 ; Burtis v. Thompson, 42 N. Y. 246, 1 
 Am. Rep. 516 ; Ryan v. Dayton, 25 Conn. 188, 65 Am. Dec. 560 ; Grau v. Mc- 
 Vicker, 8 Biss. 13, Fed. Gas. No. 5,708; Hosmer v. Wilson, 7 Mich. 294, 74 
 Am. Dec. 716 ; Jones v. Transportation Co., 51 Mich. 539, 16 N. W. 893 ; Nil- 
 son V. Morse, 52 Wis. 240, 9 N. W. 1 ; Hartman v. Rogers, 69 Cal. 643, 11 Pac. 
 581. Where a servant is told by his master that their relations had better 
 be discontinued immediately, and thereupon the servant, no work being as- 
 signed to him, leaves, he is discharged. Bennett v. Morton, 46 Minn. 113, 
 48 N. W. 678. And see Paine v. HUl, 7 Wash. 437, 35 Pac. 136. A request 
 by the master for the servant's resignation, which is given, is a discharge 
 of the servant. Jones v. Transportation Co., 51 Mich. 539, 16 N. W. 893. 
 But see WHARTON v. CHRISTIE, 53 N. J. Lawy 607, 23 Atl. 258, Cooley Cas. 
 Persons and Domestic Relations, 303. Where the servant is employed as a 
 manager reduction to the grade of mere clerk Is a breach of the contract 
 Cooper V. Strong & Warner Co., Ill Minn. 177, 126 N. W. 541, 27 h. R. A. (N. 
 a.) 1011, 20 Ann. Cas. 663. 
 
 7 8 Clark, Cont. 649; Planchg v. Colbum, 8 Bing. 14; W. TJ. Tel. Co. v. 
 Semmes, 73 Md. 9, 20 Atl. 127 ; Selpel v. Trust Co., 84 Pa. 47. 
 
 8" See Mitchell v. Toale, 25 S. C. 238, 60 Am. Rep. 502. But' see Best v. 
 Lizarrago, 37 Phil. Rep. 491, where it Is held that, where employer subse- 
 quently offers in good faith to take back discharged employee, it is the duty 
 of employee to return. 
 
 81 Clark, Cont. S45. 
 
 8 2Gandell v. Pontigny, 4 Camp. 375, 1 Starkie, 198; Strauss v, Meertief, 
 64 Ala. 299, 38 Am. Rep. 8; Isaacs v. Davies, 68 Ga. 169. 
 
§§ 259-261) TERMINATION OF THE RELATION 587 
 
 servant cannot go on and do the work, or hold himself in readiness 
 to do it, and then recover the contract price as on a full perform- 
 ance, but that he must treat the hiring as at an end, and pursue 
 his remedy, either on the quantum meruit, or for damages for 
 breach of contract.^* 
 
 If the master ill treats the servant by assaulting and beating 
 him, he breaks an implied term of the contract, and the servant 
 may leave, and recover as upon a wrongful discharge.** And of 
 course nonpayment of the wages as agreed, is a breach by the 
 master. 
 
 Same — Breach by Servant 
 
 If the servant willfully renounces and abandons the service with- 
 out just cause, or, by his inexcusable conduct, renders further per- 
 formance impossible, such a breach terminates the contract,*'' and, 
 if the contract is entire, will discharge the master from all liability 
 under the contract, even for services actually rendered, since per- 
 formance by the servant is, a condition precedent to his right to 
 compensation. An action for the services rendered in such a case 
 clearly cannot be brought on the contract.** Whether there can 
 be a recovery on the quantum meruit is a different question. Such 
 a recovery, as will be seen in a subsequent section, is allowed by 
 some courts, but denied by other^s.*^ Whether or not a mere par- 
 tial failure on the part of one of the parties to perform the con- 
 tract discharges the other altogether from liability on the contract 
 is a question upon which the decisions are conflicting. If there 
 
 83 Clark V. Marsiglia, 1 Denio (N. T.) 317, 43 Am. Dec. 670 ; Lord v. Thom- 
 as, 64 N. T. 107 ; Hosmer v. Wilson, 7 Mich. 294, 74 Am. Dec. 716 ; Gibbons 
 V. Bente, 51 Minn. 499, 53 N. W. 756, 22 L. R. A. 80 ; CoUyer v. Moulton, 9 
 R. I. 90, 98 Am. Dec. 370; Heaver v. Lanahan, 74 Md. 493, 22 Atl. 263; 
 Owen V. Frink, 24 Cal. 178. 
 
 SI Ward v. Ames, 9 Johns. (N. T.) 138; Bishop v. Ranney, 59 Vt. 316, 7 
 Atl. 820. But see Morgan v. Shelton, 28 La. Ann. 822, a case in which it 
 was held that a servant who was knocked down by his master in a' fit of 
 passion was not justified in leaving. Ah assault on a servant or his child by 
 one who is not connected with the master, and without any direction or 
 authority from the master, does not entitle the servant to leave. Mather v. 
 Brokaw, 43 N. J. Law, 587. Compare Patterson v. Gage, 23 Vt. 558, 56 Am. 
 Dec. 96. 
 
 85 Leopold v. Salkey, 89 111. 412, 31 Am. Rep. 93; Newkirk v. New York 
 & H. R. Co., 38 N. Y. 158. 
 
 80 Hill V. Balkcom, 79 Ga. 444, 5 S. E. 200 ; Scheuer v. Monash, 35 Misc. 
 Rep. 276, 71 N. Y. Supp. 818. 
 
 8» Post, p. 603. 
 
588 MASTER AND SERVANT (Ch. 16 
 
 is an express and entire contract to pay a certain lump sum for the 
 services contracted for, then, i by the better opinion, the servant 
 must perfoVm in full in order to recover anything. If he performs 
 in part only, he cannot recover on the quantum meruit for what 
 he has done.'* 
 
 Breach by one of the parties of a subsidiary term in the contract 
 does not discharge the other, but merely entitles him to damages.*" 
 This is a well-established principle of the general law of contract. 
 So, if the contract is not entire, but divisible, breach as to part 
 will not prevent recovery for performance of the remainder. It 
 has been held that if services are to be paid for in installments 
 as where the wages are to be paid weekly or monthly on a hiring 
 for a year, the contract will be regarded as divisible, unless such 
 a construction is expressly excluded; and a recovery for services 
 rendered may be had by the servant if he leaves before the end of 
 the term."" 
 
 There is an implied contract upon the part of a servant that he 
 ia competent to discharge the duties for which he is employed; 
 and, if he proves incompetent, it is a breach of contract, for which 
 he may be dismissed."^ A servant may be discharged if, by in- 
 
 88 Cutter V. Powell, 6 Term R. 320. 
 
 89 In Bettini v. Gye, 1 Q. B. Div. 183, the plaintiff, a professional singer, 
 had entered into a contract with the defendant, director of an opera, for his 
 services as a singer for a considerable time, and upon a number of terms, 
 one of which was that plaintiff should be in London without fail at least six 
 days before the commencement of his engagement, for the purpose of re- 
 hearsing. The plaintiff broke this term by arriving only two days before 
 the commencement of the engagement, and the defendant treated this breach 
 as a discharge of the contract. The court held, however, that, in the ab- 
 sence of any express declaration that the term was vital to the contract, it 
 must "look to the whole contract, and. see whether the particular stipulation 
 goes to the root of the matter, so that a failure to perform it would render 
 the performance of the rest of the contract by the plaintiff a thing different 
 in substance from what the defendant has stipulated for; or whether it 
 merely partially affects it, and may be compensated fcr in damages." And 
 it was held that the term did not go to the root of the matter, so as to con- 
 stitute a condition precedent. On the other hand, where a singer who had 
 agreed to take the principal part in an opera failed to perform in the opening 
 and early performances, it was held that the other party was discharged. 
 Poussard v. Spiers, 1 Q. B. Div. 410. 
 
 •oChamblee v. Baker, 95 N. C. 98. The application of the rule to this 
 particular contract is contrary to the decisions in many other states. See 
 post, p. 603. 
 
 oiLeatherberry v. Odell (C. C.) 7 Fed. 641; United Oil & Refining Co. v. 
 Grey, 47 Tex. Civ. APP. 10, 102 S. W. 934; Ivey v. Bessemer City Cotton Mills, 
 
§§ 259-261) TERMINATION OP THE EELATION 589 
 
 toxication, even outside of working hours, and not on his master's 
 premises, he unfits himself to fully and properly perform his du- 
 ties."^ And drunkenness on the master's premises may be, ground 
 for dismissal, though it does not incapacitate the servant for the 
 performance of his duties. °' 
 
 A servant may be dismissed by the master before the expiration 
 of the term either for criminal or immoral conduct, willful disobe- 
 dience, or habitual neglect."* He may be dismissed for larceny or 
 embezzlement, either from the master or a third person, °^ and he 
 may be dismissed for cheating or defrauding, or attempting to cheat 
 or defraud, his master.*^ Habitual neglect of duty is always suf- 
 ficient ground for discharge."' So if a servant handling his mas- 
 ter's money, as a cashier, for instance, largely overdraws his sal- 
 
 143 N. C. 189, 55 S. E. 613 ; Keedy v. Long, 71 Md. 385, 18 Atl. 704, 5 L. B. A. 
 759 ; Searle v. Ridley, 28 Law T. (N. S.) 411 ; Harmer v. Cornelius, 5 C. B. 
 (N. S.) 236; Waxelbaum v. Limberger, 78 Ga. 43, 3 S. E. 257; Baltimore 
 Baseball Club & Exhibition Co. v. Pickett, 78 Md. 375, 28 Atl. 279, 22 L. E. A. 
 690, 44 Am. St. Rep. 304 ; Woodrow v. Hawving, 105 Ala. 240, 16 South. 720. 
 But not because he is incompetent to perform duties which were not within 
 the terms of his contract. Pringle v. Producers' Turpentine Co., 126 La. 1095, 
 53 South. 359. 
 
 92 McCormick v. Demary, 10 Neb. 515, 7 N. W. 283 ; Ulrich v. Hower, 156 
 Pa. 414, 27 Atl. 243 ; E. I. Du Pont Co. t. Waddell, 178 Fed. 407, 101 C. G. A. 
 335 ; Smith v. Railroad Co., 60 Minn. 330, 62 N. W. 392. 
 
 93 Bass Furnace Co. v. Glasscock, 82 Ala. 452, 2 South. 315, 60 Am. Rep. 
 748 ; Louisville & N. R. Co. ^. Cox, 145 Ky. 716, 141 S. W. 59 ; Dunkell v. 
 Simons, 15 Daly, 353, 7 N. T. Supp. 655 ; Speck v. Phillips, 5 Mees. & W. 279. 
 
 94 2 Kent, Comm. 258. 
 
 95 Libhart v. Wood, 1 Watts & S. (Pa.) 265, 37 Am. Dec. 461; Cunningham 
 V. Fonblanque, 6 Car. & P. 44, 49 ; Spotswood v. Barrow, 5 E^ch. 110 ; Krue- 
 ger V. Roxford Knitting Co., 209 111. App. 496 (peculation in expense account). 
 See, also, Butterick Pub. Co. v. Whitcomb, 225 111. 605, 80 N. E. 247, 8 L. R. 
 A. (N. S.) 1004, where the servant, after the termination of his employment, 
 retained a book issued by the employer and delivered it to a competitor. 
 Thereafter the employer hired the employe for a specified term, and it was 
 held that the act of the employs while not In defendant's employ did not 
 justify him in terminating the contract of employment. 
 
 96 Singer v. McCormick, 4 Watts & S. (Pa.) 267. 
 
 97 Callo V. Brouncker, 4 Car. & P. 518; Robinson v. Hindman, 3 Esp. 235 
 Wright V. Lake, 48 Wash. 469, 93 Pac. 1072 ; Armour-Cudahy Packing Co. v, 
 Hart, 36 Neb. 166, 54 N. W. 262 ; Elliott v. Wanamaker, 155 Pa. 67, 25 Atl 
 826. The employer is the sole judge whether his interests have been jeopar- 
 dized by neglect. International Harvester Co. v. Boatman, 122 111. App. 474 
 Disregard of orders as to time of coming to work justifies dismissal. Mac- 
 auley v. Press Pub. Co., 170 App. Div. 640, 155 N. I. Supp. 1044. 
 
590 MASTER AND SERVANT (Ch. 16 
 
 ary, the master may discharge him.®* Gross moral misconduct is 
 always' good ground for dismissal. °° 
 
 Willful disobedience by a servant of the master's orders is a 
 breach of his contract, and ground for dismissal, uriless the dis- 
 obedience is in a slight matter, and involves no serious consequenc- 
 es.^ Even in the latter case there are authorities holding a dis- 
 missal justified,^ but the better opinion is to the contrary.' A 
 dismissal has been held justified where a house servant went to 
 see her' sick mother, who was supposed to be in danger of death ; * 
 but this case goes too far.° A dismissal has also been held jus- 
 tified where a servant refused to go on an errand without having 
 had his dinner ; " where a farm hand refused to go to work without 
 beer ; ' where an employe smoked in the shop, in violation of rules, 
 and, when remonstrated with, left the shop in working hours, to 
 finish the smoke.* But the contrary was held where the ground 
 relied upon for dismissal of a teacher was the failure to return 
 
 9 8 Smith V. Baker, 101 Mich. 155, 59 N. W. 394. 
 
 »» As the pregnancy of a maid servant, Connors v. Justice, 13 Ir. Com. 
 Law, 451; or being the father of a bastard child, Bex v. Inhabitants of 
 VPelford, Cald. 57 ; or an attempt to ravish a maid servant, Atkin v. Acton, 
 4 Car. & P. 208. 
 
 iLilley v. Elwin, 11 Q. B. 742; Stain v. Arnott, 2 Starkie, 256; Leather- 
 berry V. Odell (C. C.) 7 Fed. 641 ; Standidge v. Lynde, 120 111. App. 418 ; Von 
 Heyne v.. Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524; Dunkell 
 v. Simon's, 15 Daly, 352, 7 N. Y. Supp. 655 ; TuUis v. Hassell, 54 N. Y. Super. 
 Ct. 391 ; Matthews v. Park Bros. & Co., 146 Pa. 384, 23 Atl. 208 ; Id., 159 Pa. 
 579, 28 Atl. 435 ; Macintosh v. Abbott, 231 Mass. 180, 120 N. B. 383 ; Fisher 
 V. Monroe (City Ct.) 17 N. Y. Supp, 837 ; Hamlin v. Race, 78 111. 422. If the 
 order is a reasonable one, the servant is not justified in refusing to obey 
 merely because it was given in bad faith and is distasteful to the servant. 
 Development Co. v. King, 161 Fed. 91, 88 C. C. A. 255, 24 L. R. A. (N. S.) 812. 
 
 2 Matthews v. Park Bros. & Co., 146 Pa. 384, 23 Atl. 208 ; Id., 159 Pa. 579, 
 28 Atl. 435 ; Forsyth v. McKinney, 56 Hun, 1, 8 N. Y. Supp. 561 ; Turner v! 
 Mason, 14 Mees. & W. 112, 14 Law J. Exch. 311. 
 
 3 Shaver v. Ingham, 58 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712 ; Ham- 
 ilton V. Love (Ind.) 43 N. E. 873 ; Id., 152 Ind. 641, 53 N. E. 181, 54 N. B. 
 437, 71 Am. St. Rep. 384 ; Mcintosh v. Abbott, 231 Mass. 180, 120 N. B. 383 ; 
 Callo V. Brouncker, 4 Car. & P. 518; Park Bros. & Co. v. Bushnell 60 Fed' 
 583, 9 C. C. A. 138. 
 
 * Turner v. Mason, 14 Mees. & W. 112, 14 Law J. Bxch. 311. 
 
 Shaver v. Ingham, 58 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712. 
 
 e Spain v. Arnott, 2 Starkie, 256. 
 
 !■ Lilley v. Elwin, 11 Q. B. 742. 
 
 » Forsyth v. McKinney, 56 Hun, 1, 8 N. Y. Supp. 561. 
 
§§ 259-261) TERMINATION OP THE RELATION 591 
 
 within a day or two after vacation ; ° where a factory employe 
 absented himself for a day.^" 
 
 By the better opinion, especially in the case of mechanics, clerks 
 in stores, and other servants not menial, the act of disobedience, 
 to justify dismissal, must involve injury to the master. " 'Willful' 
 disobedience, in the sense in which the word is used in the au- 
 thorities, means something more than a conscious failure to obey. 
 It involves a wrongful or perverse disposition, such as to render 
 the conduct unreasonable, and inconsistent with proper subordina- 
 tion. We are not prepared to hold that, even in what is known as 
 'menial service,' every act of disobedience may be lawfully pun- 
 ished by the penalty of dismissal, and the serious consequences 
 which it entails upon the servant put out of place. No ' doubt, 
 domestic discipline may be closer than that in business employ- 
 ments; but there must be a limit to the arbitrary power of mas- 
 ters." ^^ Unless the dismissal was clearly justifiable within these 
 rules, the question should be left to the jury.^^ 
 
 Where the disposition and deportment of the servant are such as 
 to seriously injure the custom and business of the master, or his 
 other interests, he may be dismissed; but slight' disicourtesies, 
 hasty words, and occasional exhibitions of ill temper, are not suf- 
 ficient cause for dismissal, where there are many petty causes for 
 annoyance and irritation in the business. ^^ 
 
 If a servant, without the consent of his master, engage in any 
 employment or business, for himself or another, which ipay tend 
 to injure his master's trade or business, this is ground for his dis- 
 missal. "This is so because it is the duty of the servant, not only 
 to give his time and attention to his master's business, but, by 
 all lawful means at his command, to protect and advance his mas- 
 ter's interests. But, when the servant engages in a business which 
 
 s-rylUieul V. Armstrong, 7 Adol. & B. 557. See, also, Thrift v. Payne, 71 
 111. 408. 
 
 10 Shaver v. Ingham, 58 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712. If a 
 day's absence involves serious consequences, it wnl justify dismissal. See 
 Ford V. Danks, 16 La. Ann. 119. A general superintendent of a factory may 
 be aismlssed for willful absence which results in injury to the business. 
 Farmer v. First Trust Co., 246 Fed. 671, 158 O. C. A. 627, L. E. A. 19180, 1027. 
 
 11 Shaver v. Ingham, 58 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712. 
 
 12 Shaver v. Ingham, 58 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712 ; Ed- 
 wards V. Levy, 2 Fost. & F. 94. 
 
 13 Leatherberry v. Odell (C. C.) 7 Fed. 641; Lalande v. Aldrich, 41 La. 
 Ann. 307, 6 South. 28. 
 
592 MASTER AND SERVANT (Ch. 16 
 
 brings him in direct competition with his master, the tendency is 
 to injure or endanger, not to protect and promote, the interests of 
 the latter." ^* It is not essential that the servant should engage in 
 a business directly competing with that of the master, but the 
 misappropriation of the time belonging to the master is a sufficient 
 ground for dismissal.^^ 
 
 The master may condone or waive a breach of contract by the 
 servant ; and, if he does so, he cannot afterwards rely upon it as a 
 discharge, either to justify a dismissal of the servant, or to defeat 
 an action for wages. ^° Retention of the servant after knowledge 
 of misconduct or a breach of contract on his part is prima facie a 
 waiver,^^ but the master may show circumstances excusing his 
 delay.^* The retention of a servant after knowledge of a specific 
 breach of duty will not waive or condone subsequent continued 
 breaches ofthe same character.^" 
 
 • If there is sufficient ground for dismissing a servant, the motive 
 of the master in taking advantage of if is altogether immaterial.^* 
 
 1* Dieviuger v. Meyer, 42 Wis. 311, 24 Am. Rep. 415 ; Glaser v. National 
 Alumni (Sup.) 97 N. Y. Supp. 984 ; Hibbard v. Wood, 49 Pa. Super. Ct 513 ; 
 Thompson v. Havelock, 1 Camp. 527. Cf. Cliaddock College v. Bretherick, 36 
 111, App. 621. The fact that the servant in such a case continues to give his 
 whole time and attention to his master's business is immaterial. Dieringer 
 V. Meyer, supra. Compare Day v, American Machinist Press, 86 App. Div. 
 613, 83 N. T. Supp. 263. 
 
 15 Atlantic Compress Co. v. Young, 118 Ga. 868, 43 S. E. 677; Vidalia 
 Compress & Power Co. v. Mathews, 1 Ga. App. 56, 57 S. E. 902. In the lat- 
 ter case it was, however, said that, while a servant has no right to ap- 
 propriate any part of his employer's time to his own use, yet where the 
 work at which he is employed has been suspended, a temporary absenting 
 himself where no injury results to the employer will not .instify his discharge. 
 
 i«Bast V. Byrne, 51 Wis. 531, 8 N. W. 494, 37 Am. Rep. 841; Sharp v. 
 McBride, 120 La. 143, 45 South. 41; Fitzpatrick Square Bale Ginning Co. v. 
 McLaney, 153 Ala. 586, 44 South. 1023, 127 Am. St. Rep. 71; Reynolds v. 
 Hart, 42 Colo. 150, 94 Pac. 14; Prentiss v. Ledyard, 28 Wis. 131; Butteriek , 
 Pub. Co. V. Whitcomb, 225 111. 605, 80 N. E. 247, 8 L. R. A. (N. S.) 1004; Mo- 
 Grath v. Bell, 33 N. Y. Super. Ct. 195; Leutherberry v. Odell (C. C.) 7 Fed. 
 641; Jones v. Field, 83 Ala. 445, 3 South. 893. 
 
 17 Cases above cited. 
 
 18 Jonas V. Field, 83 Ala. 445, 3 South. 893 ; McMurray v. Boyd, 58 Ark. 
 504, 25 S. W. 503. 
 
 19 Tnited Oil & Refining Co. v. Grey, 47 Tex. Civ. App. 10, 102 S W 934- 
 JEROME V. QUEEN CITY CYCLE CO., 163 N. Y. 351, 57 N. E. 485, Cooley 
 Cas. Persons and Domestic Relations, 309. 
 
 2 Von Heyne v. Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. '(N. S.) 
 524; Jackson v. Hospital, 6 Misc. Rep. 101, 26 N. Y. Supp. 27; Corgan v. 
 Geo. F. Lee Coal Co., 218 Pa. 386, 67 Itl. 655, 120 Am. St. Rep. 891, 11 Ann. 
 Cas. 838. 
 
§§ 259-261) TERMINATION OF THE RELATION 593 
 
 Any adequate cause for dismissal known to the master at tlie time 
 of dismissal will justify him, whether such cause was assigned or 
 not, and even though a different cause may have been assigned."' 
 It has even been held, and very properly, that good and sufficient 
 reasons for dismissal, existing at the time of dismissal, will justify 
 him, though he did not even know of them until afterwards."" 
 
 Discharge of Contract by Impossibility of Performance 
 
 Impossibility of performance arising subsequent to the formation 
 of the contract does not discharge either party from his obligation, 
 even though he may not be at all in fault, ='^ except (1) where the 
 impossibility arises from a change in the law,"* or from the action 
 
 21 Sterling Emery "Wlieel Co. v. Magee, 40 III. App. 340; Von Heyne v. 
 Tompkins, 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524 ; Corgan v. Geo. 
 F. Lee Coal Co.. 218 Pa. 386, 67 Atl. 655, 120 Am. St. Rep. 891, 11 Ann. Cas. 
 838 ; Ball v. Mining Co., 8 Misc. ttep. 333, 28 N. T. Supp. 537 ; Odeneal v. 
 Ilenrj', 70 Miss. 172, 12 South. 154; Baillie v. Kell, 4 Bing. N. C. 638; 
 Ridgeway v. Market Co., 3 Adol. & E. 171. But see Shaver v. Ingham, 58 
 Mich. 649, 26 N. W. 162, 55 Am. Rep. 712; Cussons v. Skinner, 11 Mees. 
 & "Wi. 161 ; Smith v. Allen, 3 Fost. & F. 157. 
 
 2 2 Odeneal v. Henry, 70 Miss. 172, 12 South. 154; Von Heyne v. Tompkins, 
 89 Minn. 77, 93 N. W. 901, 5 L. R. A. (N. S.) 524; Willets v. Green, 3 Car. & 
 K. 59; Spotswood v. Barrow, 5 Exch. 110. But see Cussons v. Skinner, 11 
 Mees. & W. 161. In Willets v. Green, 3 Car. & K. 59, Alderson, B., said: 
 "If an employer discharge his servant, and at the time of the discharge a 
 good cause of discharge in fact exists, the employer is justified in discharg- 
 ing the servant, although at the time of the discharge the employer did not 
 know of the existence of the cause. This point has been much discussed In 
 the house of lords and elsewhere, but what I have stated is the result." 
 
 23 .See Clark, Cont. 678 et sec|. : Leopold v. Salkey, 89 111. 412, 31 Am. Rep. 
 93. A servant is not discharged from liability to perform his contract by 
 the fact that he is arrested, even without his fault, and confined in jail. In 
 such a case the master may rescind. Leopold v. Salkey, supra. Where per- 
 formance becomes impossible by reason of contingencies which should have 
 been foreseen and. provided against in the contract, the promisor is not dis- 
 charged. It was therefore held by the Supreme Court of Wisconsin that 
 where the plaintiff agreed that he and his wife should work for the defend- 
 ant for a year, and four months afterwards; the wife, being about to give 
 birth to a child, left, and the plaintiff was thereupon discharged, the plaintiff 
 could not recover for his wages on the quantum meruit, as he should have 
 foreseen and provided for his wife's sickness when he made the contract, and 
 therefore his nonperformance was not excused. Jennings v. Lyons, 39 Wis. 
 553, 20 Am. Sep. 57. 
 
 24 Clark, Cont. 681. See Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; 
 Jones V. Judd, 4 N. Y. 411. As where the object for which the services are 
 engaged are prohibited b^ statute. Cordes v. Miller, supra. There is no 
 discharge if the change in the law merely makes performance more burden- 
 some. Baker v. Johnson, 42 N. Y. 126.' ) 
 
 TIIT.P.& D.Rel.(3d Ed.)— 38 
 
594 MASTER AND SERVANT (Ch. 16 
 
 of a court, as by injunction where the party claiming to be dis- 
 charged thereby is not in fault; "^ or (2), in some states, where the 
 object on which the services are to be performed is destroyed with- 
 out fault on the part of either party ; "^ or (3) where either one of 
 the parties dies,^' or the servant is permanently incapacitated by 
 illness or personal injury,'" or where the prevalence of a contagious 
 and fatal disease in the vicinity of the place where the servant is 
 to work renders it unsafe for him to remain there.^° As heretofore 
 stated, impossibility cannot be relied upon as a discharge if it was 
 created by the party himself; but such impossibility will operate 
 as a discharge of the other party.=» The fact that the master be- 
 comes insolvent, and is obliged to cease business, does not dis- 
 charge him from his obligation- to pay the servant's wages for 
 the full term, or to pay damages for refusal to carry out the con- 
 
 2 5 People V. Insurance Co., 91 N. X. 174. 
 
 2 6 Cook V. McCabe, 53 Wis. 250, 10 N. W. 507, 40 Am. Kep. 765; Butter- 
 field V. Byron, 153 Mass. 517, 27 N. E. 667, 12 U R. A. 571, 25 Am. St. Kep. 
 654; Hindrey v. Williams, 9 Colo. 371, 12 Pac. 436. But see Brumby v. 
 Smitli', 3 Ala. 123. 
 
 2 7 Clark, Cont. 683, collecting cases. The death of the master discharges 
 the contract. Yerrington v. Greene, 7 E- I. 589, 84 Am. Dec. 578; Lacy v. 
 Getman, 119 N. Y. 109, 23 N. E. 452, 6 L. E, A. 728, 16 Am. St. Rep. 806; 
 Campbell v. Faxon, Horton & Gallagher, 73 Kan. 675, 85 Pac. 760. 5 L-. R. 
 A (N. S.) 1002 ; Farrow v. Wilson, I/. R. 4 0. P. 744. But it has been held 
 by some courts that the death of one only of two joint employers, as of a 
 partner, does not terminate the hiring. Martin v. Hunt, 1 Allen (Mass.; 
 419; Fereira v. Sayres, 5 Watts & S. (Pa.) 210, 40 Am. Dec. 496. The bet- 
 ter opinion, however, is to the contrary. Griggs v. Swift, 82 Ga. 392, 9 S. E. 
 1062, 5 li. R. A. 405, 14 Am. St. Rep. 176; Louis v. Elfelt, 89 Cal. 547, 26 Paa 
 1095 ; Tasker v. Shepherd, 6 Hurl. & N. 57.5. The death of the servant dis- 
 charges the contract. w;olfc v. Howes, 20 X. Y. 197, 75 Am. Dec. 388. 
 
 28 The authorities all agree that the incapacitatin.g sickness of the serv- 
 ant, or incapacitating personal injuries, will operate as a discharge of the 
 contract if permanent, or, if temporary, excuse nonperformance or delay In 
 performance on the part of the servant. Robinson v. Davison, L. R. 6 Exeh. 
 269; Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388; Clark v. Gilbert, 26 
 N. Y. 279, 84 .\m. Dec. 189; Spalding v. Rosa, 71 N. Y. 40, 27 Am. Rep. 7; 
 Harrington v. Iron Works Co., 119 Mass. 82; Fuller v. Brown, 11 Mete. 
 (Mass.) 440: Fenton v. Clark, 11 Vt. 557; Hubbard v. Belden, 27 Vt. 645; 
 Green v. Gilbert, 21 Wis. 395. Temporary sickness is no ground for dis- 
 missal unless the nature of the contract is such that a temporary illness 
 makes it necessary to employ another servant. See Cuckson v. Stones, 2S 
 Law J. Q. B. 25, 5 Jur. (N. S.) 337, 1 El. & El. 248; Eversley, Dom. Rel. 
 929. 
 
 2»Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77. But see Dewey v. 
 School Dlst., 43 Mlich. 480, 5 N. W. 646, 38 Am. Rep. 206, 
 
 80 Ante, p. 585. 
 
§§ 262-263) REMEDIES FOR BREACH OF CONTRACT 595 
 
 tratt.** The appointment of a receiver has, however, been held 
 to terminate the contract."" 
 
 REMEDIES FOR BREACH OF CONTRACT— DAMAGES 
 
 262. A breach of the contract of hiring by the servant gives the 
 
 master a right of action for any damages he may have sus- 
 tained. 
 
 263. Upon a breach of the contract by the master by wrongfully 
 
 discharging the servant, the servant has the following rem- 
 edies : 
 
 (a) He may bring an action on the contract of hiring, and recover 
 
 whatever damages he may have sustained ; the measure of 
 his damages being the amount already earned and unpaid, 
 and whatever he would have earned during the remainder 
 of the term, less any sums actually earned in other employ- 
 ment, or which he might have earned by the exercise of 
 reasonable diligence in seeking similar employment. 
 
 (b) Or he may treat the contract as rescinded, and recover on 
 
 the quantum meruit for services actually rendered. 
 
 (c) Either of these actions is a bar to the other. 
 
 (d) A few courts allow him to treat the contract as still in force, 
 
 and recover wages as they fall due, upon the theory of con- 
 structive service; but in most states this doctrine is re- 
 pudiated. 
 
 If the servant breaks his contract by renouncing it before the 
 time for performance has arrrived, or by abandoning the~ service 
 after a part performance, or by otherwise failing to perform it ac- 
 cording to its terms, the remedy of the master is by action of special 
 assumpsit to recover damages for the breach; or he may set up 
 such damages if sued by the servant for services rendered. 
 
 If the master renounces the contract before the time for perform- 
 ance, and therefoi'e before any services are rendered, the only rem- 
 edy of the servant, by the better opinion, is an action of special 
 assumpsit to recover damages for the breach. Some courts, as we 
 
 31 Vanuxem v. Bostwick (Pa.) 7 Atl. 598. 
 
 82 Eddy V. Co-operative Dress Ass'n, 3 N. Y. Civ. Proc. 442. And see In re 
 Sweetser Pembroke & Co., 142 Fed. 131, 73 O. C. A. 349, when the contract 
 expre,9sly provided tliat it might be terminated by the corporation In case of 
 its dissolution and the corporation was declared bankrupt.! 
 
596 MASTER AND SERVANT (Ch. 16 
 
 shall presently see, permit him to treat the contract as still in force, 
 and to recover the wages, on the theory of constructive service, 
 when they fall due under the contract.^* 
 
 If the master breaks the contract in the course of performance, 
 either by discharging the servant without cause, or by giving the 
 servant cause to leave and refuse further performance, the servant 
 has an election of remedies : • 
 
 First. He may bring special assumpsit against the master for his 
 breach of the contract ; and this remedy he may pursue whether his 
 wages are paid up to the time of his discharge or not. And he may 
 either bring this action immediately, or he may wait until the period 
 for which he was hired has expired. In such an action he will be 
 entitled to recover the wages, if any, earned up to the time of the 
 discharge, and, in addition, the actual damages he has sustained by 
 the master's breach of the contract.^* In case he has, by the exer- 
 cise of due diligence, beeA unable to secure other employment dur- 
 ing the entire term, he can recover the entire wages. He cannot 
 remain idle during the term for which he was hired, but must seek 
 for other employment. The measure of his damages, therefore, is 
 the wages he would have earned under the contract, less any 
 amount he has actually earned in t)ther employment, or which he 
 might have earned by the exercise of proper diligence in seeking 
 employment in the same line of business.^" 
 
 S3 Post, p. 598, and cases there cited. 
 
 3 4Keedy v. I.,ong, 71 Md. 385, IS Atl. 704, 5 L. R. A. 759; Sherman v. 
 €liamplain Transp. Oo., 31 Vt. 162; Texarkaua Lumber Co. v. Lennard, 47 
 Tex. Civ. App. 116, 104 S. W. 506 ; Smith v. Cashie & Chowan R. & Lumber 
 Co., 142 N. C. 26, 54 S. E. 788, 5 L. R A. (N. S.) 439. Though, according to 
 its terms, a contract of employment was terminable at any time, a refusal 
 to let the employe begin work was a breach of the contract entitling the 
 employe to at least nominal damages. C'ronemillar v. Dnluth-Superior Mill- 
 ing Co., 134 Wis._248, 114 N. W. 432. He cannot recover exemplary damages. 
 Consumers' Lignite Co. v. James (Tex. Civ. App.) 204 S. W. 719. 
 
 3 6 FitKpatrick Square Bale Ginning Co. v. McLaney, 153 Ala. 586, 44 South. 
 1023, 127 Am. St Rep. 71; C. D. Smith & Co. v. Ohler (Ky.) 104 S. W. 995; 
 I^ake Erie & W'. Ry. Co. v. Tierney, 29 Ohio Cir. Ct. R. 83 (judgment affirmed 
 75 Ohio St. 565, SO N. E. 1128) ; Kansas Union Life Ins. Co. v. Burman, 141 
 Fed. 835, 73 C. C. A. 69; Semet-Solway Co. v. Wilcox, 143 Fed. 839, 74 C. 
 C. A. 635; Peterson v. Drew, 2 Alaska, 560; Elderton v. Emmens, 6 C. B. 
 160; Goodman v. Pocoek, 15 Q. B. 576; Keedy v. Long, 71 Md. 385, 18 Atl. 
 704, 5 L. R. A. 759 ; Sherman v. Champlain Transp. Co., 31 Vt 162, 179 ; How- 
 ard v. Daly, 61 N. T. 362, 19 Am. Rep. 285 ; Willoughby v. Thomas, 24 Grat 
 (Va.) 521 ; Leatherberry v. Odell (O. C.) 7 Fed. 641 ; Fuller v. little, 61 111. 21 ; 
 Mahon v. Daly, 70 111. 653;, Dana v. Short, 81 111. 468; Litchenstein v. Brooks', 
 75 Tex. 196, 12 S. W. 975 ; Bennett v. Morton, 46 Minn. 113, 48 N. W. 678 ; 
 
§§ 262-263) REMEDIES FOR BREACH OP CONTRACT 597 
 
 Second. If the servant's wages are not paid up to the time of his 
 discharge, he may treat the contract of hiring as rescinded, and 
 maintain general assumpsit on the quantum meruit, to recover for 
 the services he has actually rendered. He recovers, in such an ac- 
 tion what the services were reasonably worth, and is not bound by 
 the rate of compensation fixed by the contract. He can only re- 
 cover in this form of action for services actually rendered. ^° 
 
 The servant must elect between these actions. He cannot main- 
 tain both. If he elects to sue upon the quantum meruit, he treats 
 the contract as rescinded, and he cannot afterwards treat it as 
 
 Allen V. Maronne, 93 Tenn. 161, 23 S. W. 113. That the servant must use 
 reasonable diligence in seeking other employment, and that the amount 
 earned, or which should have been earned, In other employment, will be 
 deducted from his claim, see Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 
 285; Leatherberry v. Odell (C. C.) 7 Fed. 641; Fuller v. Little, 61 111. 21; 
 Ohamplain v. Stamping Co., 68 Mich. 238, 36 N. W. 57; Stevens v. Crane, 
 37 Mo. App. 487; Troy Fertilizer Co. v. Logan, 96 Ala. 619, 12 South. 712. 
 He is only bound to use reasonable diligence in seeking other employment, 
 and is only required to seek employment in the same or a similar line of 
 business, in the same grade, and in the same place. Leatherberry v. Odell 
 (C. C.) 7 Fed. 641 ; Strauss v. Meertief , 64 Ala. 299, 38 Am. Rep. 8 ; Fuchs 
 V. Koemer, 107 N. Y. 529, 14 N. E. 445; Costigan v. Railroad Co., 2 Denio 
 (N. Y.) 609, 43 Am. Dec." 758 ; HinchclifCe v. Koontz, 121 Ind. 422, 23 N. E. 
 271, 16 Am. St. Rep. 403 ; Simon v. Allen, 76 Tex. 398, 1^ S. W- 296. The 
 plaintiff is not required to allege and prove that he was unable to procure 
 other employment. Beissel v. Vermillion Farmers' Elevator Co., 102 Minn. 
 229, 113 N. W. 575, 12 L. R. A. (N. S.) 403. That he might have found other 
 employment by the exercise of due diligence is a matter of defense. Graff 
 v. Blumberg, 53 Misc. Rep. 296, 108 N. Y. Supp. 184. And the burden of 
 proving that other employment could have been obtained by the exercise of 
 reasonable diligence is on the master. American China Development Co. v. 
 Boyd (C. C.) 148 Fed. 258; Milage v. Woodward, 186 N. Y. 252, 78 N. E. 
 S73; Monroe v. Proctor, 51 Misc. Rep. 632, 100 N. Y. Supp. 1021; San An- 
 tonio Light Pub. Co. v. Moore, 46 Tex. Civ. App. 259, 101 S. Wi 867; Costigan 
 V. Railroad Co., 2 Denio (N. Y.) 609, 43 Am. Dec. 758; Howard' v. Daly, 61 
 N. Y. 362, 19 Am. Rep. 285 ; Leatherberry v. Odell (C. C.) 7 Fed. 641 ; City 
 of Jacksonville v. Allen, 25 111. App. 54; Brown v. Board of Education, 29 
 111. Apr. 572; Odeneal v. Henry, 70 Miss. 172, 12 South. 154; Allen v. 
 Whitlart, 99 Mich. 492, 58 N. W. 470; Van WSnkle v. Satterfield, 58 Ark. 
 617, 25 S. W. 1113, 23 L. R. A. 853. Evidence as to what he might have 
 earned in another employment is admissible only in mitigation of damages. 
 Fisher V. Massillon Iron &. Steel Co., 209 111. App. 616, affirmed Gorham v. 
 Same, 284 111. 594, 120 N. E. 467. As to the effect of intoxication of the 
 servant after dismissal, and when he should have been seeking other em- 
 ployment, see Hinchclifte v. Koontz, 121 Ind. 422, 23 N. E. 271, 16 Am. St. 
 Rep. 403. 
 
 3« See Ryan v. Dayton, 25 Conn. 188, 65 Am. Dec. 560; Keedy v. Long, 71 
 Md. 385, 18 Atl. 704, 5 L. ~R. A. 759 ; Smith v. Cashie & Chowan R. & Lumber 
 ■Co., 142 N. C. 26, 54 S. B. 788, 5 L. R. A. (N. S.) 439; Peacock v. Coltrane, 44 
 
598 MASTER AND SERVANT (Ch. 16 
 
 binding, in order to maintain special assumpsit on it for damages 
 for its breach. And so, conversely, if he brings special assumpsit, 
 he treats the contract as binding, and he cannot afterwards treat it 
 as rescinded for the purpose of sujng on the quantum meruit. And 
 one action foi; breach of the contract is a bar to any further action.' ' 
 Third. It was at one time held in England that, where a serv- 
 ant is wrongfully discharged, he may, if he chooses, treat the con- 
 tract of hiring as continuing, notwithstanding the master's breach, 
 and if he holds himself in readiness to perform the contract on his 
 part, and is able and willing to do so, recover his wages for the 
 whole term, upon the ground of constructive service ; either by one 
 action after the expiration of the term, or by a separate action for 
 each installment of wages as it falls due by the terms of the con- 
 tract; and this doctrine has been recognized and applied by some of 
 our courts.*' In England, however, and in most of our states, the 
 doctin,e of constructive service has been repudiated; and it is held 
 that, where a servant is wrongfully discharged, the relation ceases 
 to exist, and that only one action can be maintained against the 
 master, which must be either special assumpsit for breach of the 
 contract, to recover for services rendered and damages for the 
 breach, or general assumpsit for the services rendered, and that one 
 action is a bar to any other.'" So long as the relation of master 
 
 Tex. Olv. App. 530, 99 S. WI. 107 ; Brown v. Crown Gold Milling Co., 150 Cal. 
 376, 89 Pae. 86; Rogers v. Parham, 8 Ga. 190; Sherman v. Champlain 
 Ti-ansp. Co., 31 Vt 162; Rye v. Stubbs, 1 Hill (S. C.) 384; Clark v. Man- 
 •chester, 51 N. H. 594; Hartman v. Rogers, 69 Cal. 643, 11 Pac. 581. 
 
 37 Keedy v. Long, 71 Md. 385, 18 Atl. 704, 5 L. B. A. 759; Lltchenstein v. 
 Brooks, 75 Tex. 196, 12 S. W. 975. And see Booge v. Railroad Co., 33 Mo. 
 212, 82 Am. Dec. 160; Wiseman v. Railroad Co., 1 Hilt (N. T.) 300. 
 
 ssGandell v. Pontigny, 4 Camp. 375, 1 Starkie, 198; Strauss v. Meertief, 
 64 Ala. 299. 38 Am. Rep. 8; Isaacs v. Davies, 68 Ga. 169; Smith v. Cashie 
 & ChoT^^an R. & Lumber Co., 142 N. C. 26, 54 S. E. 788, 5 L. R. A. (N. S.) 439 ; 
 Markham v. Markham, 110 X. 0. 356, 14 S. E. 963; Sharp v. JIcBride, 120 
 La. 143, 45 South. 41. . 
 
 soElderton v. Emmens, 6 C. B. 160; Goodman v. Pocock, 15 Q. B. 576; 
 James v. Allen Co., 44 Ohio St. 226, 6 N. E. 246, 58 Am. Rep. 821 ; McMUL^ 
 LAN V. DICKINSON CO., 60 Minn. 156, 62 N. W. 120, 27 L. R. A. 409, 51 Am. 
 St. Rep. 511, Oooley Gas. Persons and Domestic Relations, 314; Derosia v 
 Ferland, 83 Vt. 372, 76 Atl. 153, 28 L. R. A. (N. S.) 577, 138 Am. St. Rep. 1092; 
 Howard v. Daly, 61 N. T. 362, 19 Am. Rep. 285 ; Keedy v. Long, 71 Md. 385, 18 
 Atl. 704, 5 L. R. A. 759 ; Olmstead v. Bach, 78 Md. 132, 27 Atl. 501, 22 L. 
 R. A. 74, 44 Am. St. Rep. 273; Richardson v. Machine Works, 78 In'd. 422, 
 41 Am. Rep. 584; 2Btna Life Ins. Co. v. Nexsen, 84 Ind. 347, 43 Am. Rep! 
 91; Willoughby v. Thomas, 24 Grat. (Va.) 521; Jones v. Dunton, 7 111. App! 
 580. Thus, where a servant who was engaged for a year at a fixed salary, 
 
§ 264) REMEDIES FOE BREACH OF CONTRACT 599 
 
 and servant actually continues, the servant may sue the master for 
 each installment of wages as it becomes due.*" 
 
 SAME^IN EQUITY— SPECIFIC PERFORMANCE— IN- 
 JUNCTION 
 
 264. Ordinarily, a suit cannot be maintained in equity to enforce 
 performance of a contract of hiring, either directly, by 
 decree for specific performance, or indirectly, by enjoining 
 a threatened breach. But a promise not to serve elsewhere, 
 and other negative promises, may be enjoined, if necessary 
 to prevent irreparable injury. 
 
 A court of equity will not decree specific performance of a con- 
 tract where the matter of the contract is such that it cannot super- 
 vise or insure its execution.*^ It will not, therefore, decree spe- 
 cific performance of a contract of hiring, for it could not, from the 
 nature of the contract, insure execution of its decree.*^ Such a 
 suit would also be defeated in most cases by the principle that a 
 suit for specific performance will not lie where there is an ade- 
 quate remedy at law. .Nor, for the same reasons, will a court of 
 equity ordinarily enjoin the breach of a contract of hiring, and 
 thus negatively or indirectly enforce specific performance of it.** 
 
 payable monthly, was discharged at (he end of two months, and sued for 
 and recovered his salary up to that time, it was held that he could not after- 
 wards sue for the breach of contract by the master, and recover for wages 
 after the discharge. Keedy v. Iiong, supra. 
 
 *» Clossman v. Lacoste, 28 Eng. Law & Eq. 140; McMULLAN v. DICKIN- 
 SON CO., 60 Minn. 156,' 62 N. W. 120, 27 L. R. A. 409, 51 Am. St. Rep. 511, Cool- 
 ey Cas. Persons and Domestic Relations, 314 ; Keedy v. Long, 71 Md. 385, 18 
 Atl. 704, 5 L. R. A. 759. But see Olmstead v. Bach, 78 Md. 132, 27 Atl. 501, 
 22 L. R. A. 74, 44 Am. St. Rep. 273. 
 
 41 Clark, Cont. 701; Fetter. Eq. 267. 
 
 *2 Lumley Y. Wagner, 1 De Gex, M. & G. 616; Webb v. England, 29 Beav. 44; 
 H. W. Gossard Co. v. Crosby, 132 Iowa, 155, 109 N. W. 483, 6 L. R. A. (N. S.) 
 1115 ; Clark's Case, 1 Blackf . (Ind.) 122, 12 Am. Dec. 213 ; Marble Co. v. Rip- 
 ley, 10 WaU. 339, 19 L. Ed. 955; Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 
 498, 3 South. 449, 3 Am. St. Rep. 758 ; Wm. Rogers Manuf'g Co. v. Rogers, 58 
 Conn. 356, 20 Atl. 467, 7 L. R, A. 779, 18 Am. St. Rep. 278 ; Lindsay v. Glass, 
 119 Ind.. 301, 21 N. E. 897; Wakeham v. Barker, 82 Cal. 46, 22 Pac. 1131; 
 Campbell v. Rust, 85 Va. 653, 8 S. E. 664. Thus, a person will not be com- 
 pelled to perform his contract to sing at a theater. Lumley v. Wagner, supra. • 
 
 43 Fetter, Eq. 296; H. W. Gossard Co. v. Crosby, 132 Iowa, 155, 109 N. W. 
 483, 6 L. R. A. (N. S.) 1115 ; (containing a full discussion). Arthur v. Oakes, 
 63 Fed. 318, 11 C. O. A. 209, 25 L, R. A. 414; Wm. Rogers Manuf'g Co. v. Rog- 
 
600 MASTER AND SERVANT (Ch. 16 
 
 But, where the contract contains negative promises,, and a breach 
 thereof would result in irreparable injury, a breach of such nega- 
 tive promises may be enjoined. Thus, a contract to serve another 
 for a certain period, and not to serve any one else during, that time, 
 could not be specifically enforced by compelling the party to serve, 
 or enjoining him from aJaandoning the employment; but he could 
 be enjoined from serving any one else.** 
 
 RIGHTS, DUTIES, AND LIABILITIES INTER SE 
 
 265. The master cannot chastise his servant. 
 
 266. The master is not bound to give the servant a character. 
 
 267. The master, in the absence of a special agreement to the con- 
 
 trary, is entitled to the entire time and services of the serv- 
 ant. 
 
 268. The servant is bound to exercise reasonable care not to injure 
 
 his master's property, or property of others in his master's , 
 care. 
 
 269. A conspiracy between servants to injure the master's business 
 
 gives the master a right of action against them. 
 
 270. The master may justify a battery in defense of the servant, and 
 
 vice versa. 
 
 271. It is the duty of the master to pay the servant the wages 
 
 agreed upon, unless the servant has forfeited his right to 
 them. By the better opinion, if the servant abandons the 
 service without excuse, or is discharged for good cause, 
 he forfeits the right to wages, even for the time he has 
 served. Some courts, however, even in these cases, allow 
 a recovery on the quantmn meruit. 
 
 ers, 58 Conn. 356, 20 AU. 467, 7 L. R. A. 779, 18 Am. St. Rep. 278 ; Cort v. Las- 
 sard, 18 Or. 221, 22 Pac. 1054, 6 L. R. A. 653, 17 Am. St. Rep. 726 ; Burney v. 
 Ryle, 91 Ga. 701, 17 S. E. 986. 
 
 44 Lumley v. Wagner, 1 De Gex, M. & G. 616; H. W. Gossard Co. v. Crosby, 
 132 Iowa, 155, 109 N. W. 483, 6 h. R. A. (N. S.) 1115; Cort v. Lassard, 18 Or. 
 221, 22 Pac. 1054, 6 L. R. A. 653, 17 Am. St. Rep. 726; Daly v. Smith, 49 How. 
 Prac. (N. T.) 150; JVTcCauU v. Brabam (C. C.) 16 Fed. 37; Dufe v. Russell, 60 
 N. Y. Super. Ct. 80, 14 N. Y. Supp. 134, 16 N. Y. Supp. 958 ; Id., 133 N. Y. 678, 
 31 N. E. 622 ; Hoyt v. Fuller (Super. N. Y.) 19 N. Y. Supp. 962. In Lumley v. 
 •Wagner, supra, a professional singer was sued (or specific performance of a 
 contract to sing at complainant's theater on certain terms, and during a cer- 
 tain period to sing nowhere else. The court refused to enforce so much of 
 the contract as related to the promise to sing, but enjoined a breach of the 
 
§§ 265-271) RIGHTS, DUTIES, AND LIABILITIES INTER SE 601 
 
 It has been said that the master may give moderate corporal 
 correction to his servant, while employed in his service, for neg- 
 ligence or misconduct; but this doctrine has long ago become ob- 
 solete. If a master chastises his servant, whether the servant be 
 an adult or a minor (other than an apprentice), he is guilty of an 
 assault and battery; and he is not only liable to respond to the 
 servant in damages, bu,t is also liable to criminal prosecution.*" 
 * No master is legally bound to give his servant a character.*" If 
 the master does make to a third person, in confidence, a communi- 
 cation in the nature of a character, such communication is prima 
 facie privilege; and no action can be maintained by the servant 
 against him on account of it, if, made bona fide and without mal- 
 ice.*' 
 
 On a contract of hiring for a fixed compensation, the master, un- 
 less such a result is excluded by the terms of the agreement, is 
 entitled to the entire time and services of the servant during the 
 time for which he has engaged to work.** If, during this time, he 
 
 promise not to sing elsewhere. In H. W. Gossard Oo. v. Crosby, 132 Iowa, 155, 
 109 K W. 483, 6 L. K. A. (N. S.) 1115, the court, after a full consideration of 
 the authorities, arrived at the conclusion that, even when there is an express 
 negative covenant, injunction will not be granted save in exceptional cases, 
 where by reason of the peculiar or extraordinary character of the promised 
 service a violation of the agreement will cause injury to the other party for 
 which an action at law will afford no adequate remedy. 
 
 4S2 Kent, Com. 260; Com. v. Baird, 1 Ashm. (Pa.) 267; Cooper v. State, 8 
 Baxt. (Tenn.) 324, 35 Am. Rep. 704; Matthews v. Terry, 10 Conn. 455. 
 
 *6 Eversley, Dom. Eel. 940 (where the subject is discussed at length) ; Car- 
 rol V. Bird, 3 Bsp. 201 ; Cleveland, C, C. & St. L. K. Co. v. Jenkins, 174 111. 39S, 
 51 N. E. 811, 62 L. R. A. 922, 66 Am. St. Rea 296 ; Ne* York. 0. & St. t k. 
 Co. V. Schaffer, 65 Ohio St. 414, 62 N. E. 1036, 62 L. R. A. 931, 87 Am. St. Rep. 
 628. 
 
 " Eversley, Dom. Rel. 940 et seq. (collecting English cases) ; Gardner v. 
 Slade, 13 Q. B. 801: Tot^ood v. Spyring, 1 Cromp., M. & R. 181; Weatherston 
 V. Hawkins, 1 Term R. 110; Missouri Pac. Ry. Oo. v. Behee, 2 Tex. Civ. App. 
 107, 21- S. W. 384. If the communications are false, and made maliciously, an 
 actiion iwill lie. See Rogers v. Clifton, 3 Bos. & P. 587; Pattison v. Jones, 8 
 Bam. & 0. 578, 8 Man. & E. 101 ; Kelly v. Partington, 4 Barn. & Adol. 700 ; 
 Fountain ,v. Boodle, 3 Q. B. 5 ; McCauley v. Elrod (Ky.) 27 S. W. 867; Vallery 
 V. State, 42 Neb. 123, 60 N. W. 347. 
 
 *8 Seaburn v. Zachmann, 99 App. Div. 218, 90 N. Y. Supp. 1005 ; Stebbins v. 
 Waterhouse, 58 Conn. 370, 20 Atl. 480. See the federal statutes relating to 
 hours of service of railway trainmen. Hours of Service Act March 4, 1907 (U. 
 S. Oomp. St. §§ 8677-8680), and Adamson I.aw Sept. 3, 5, 1916 (U. S. Comp. St. 
 S§ 8680a-8680d), fixing an Bight-hour Day for computing compensation for 
 trainmen. The expression "on duty," as used in the Hours of Service Act of 
 March 4, 1907, means actually engaged in the work or charged with responsi- 
 
602 MASTER AND SERVANT (Ch. 16 
 
 works for others, the compensation earned for such work belongs to 
 the master.*" This doctrine does not prevent the.servant working 
 for others outside of the hours for which the servant is engaged.^" 
 The master, however, has no exclusive right to the inventions of 
 the servant,"^ unless there is an agreement to that efifect,^^ or the 
 servant is employed solely to exercise his inventive ability for the 
 master's benefit."" 
 
 The servant is always liable to his master for a violation of his' 
 duty whereby the master is injured. He is bound to perform the 
 business of the master with due diligence and fidelity, and with the 
 degree of skill usually possessed by persons of ordinary capacity 
 engaged in the same business or employment; and if he fails in 
 this duty, to the master's injury, he is liable to the master in dam- 
 ages."** A servant is as much bound to exercise reasonable care 
 not to injure the property of his master as he is to exercise such 
 care in relation to the property of other persons, and if he fails in 
 this duty he is liable to the master for the resulting damages."^ 
 In like manner, he is liable to the master for injury, caused by his 
 negligence, to property of third persons, intrusted to the master, 
 and for which the master is liable to such third persons; and it is 
 not necessary that the claim of the latter against the master shall 
 
 bility for such as may arise. United States v. Denver & B. G. R. Co. (D, C.) 
 197 Fed. 629. Brief layoffs for meals do not break the continuity of service 
 within the act. United States v. Chicago, M. & P. S. By. Co. (D. C.) 197 Fed. 
 624. 
 
 49 See Leach v. Bailroad Co., 86 Mo. 27, 56 Am. Bep. 408; Sumner v. Nevin, 
 4 Cal. App. 347, 87 Pac. 1105 ; Stebbins v. Waterhouse, 58 Conn. 370, 20 Atl. 
 480 ; Hoyt v. Fuller (Super. N. Y.) 19 N. Y. Supp. 962. 
 
 5 Wallace v. De Young, 98 111. 638, 88 Am. Bep. 108; Stone v. Bancroft, 139 
 Cal. 78, 70 Pac. 1017, 72 Pac. 717. But see Hughes v. Toledo, etc.. Scale Co., 
 112 Mo. App. 91, 86 S. W. 895. 
 
 51 Joliet Mfg. Co. V. Dice, 105 111. 649, afBrming Dice v. Joliet Mfg. Co., 11 
 lU. App. 109 ; Ft. Wayne, C. & L. B. Co. v. Haberkom, 15 Ind. App. 479, 44 N. 
 E. 322. 
 
 52 Portland Iron Works v. -Willett, 49 Or. 245, 89 Pac. 421, 90 Pac. 1000; 
 Hopedale Mach. Co. v. Entv?istle, 133 Mass. 443. 
 
 53 Connelly Mfg. Co. v. Wattles, 49 N. J. Eq. 92, 23 Atl. 123; Detroit Lubri- 
 cator Co. V. Lavigne Mfg. Co., 151 Mich. 650, 115 N. W. 988. 
 
 54 Smith V. Poran, 43 Conn. 244, 21 Am. Bep. 647; Brewer v. Wright, 25 Neb. 
 305, 41 N. W. 159; Child v. Detroit Mfg. Co., 72 Mich. 623, 40 N. W.'916; Al- 
 paugh V. Wood, 53 N. J. Law, 638, 23 Atl. 261 ; Mobile & M. By. Co. v. Clanton, 
 59 Ala. 392, 31 Am. Bep. 15; Woodrow v. Hawving, 105 Ala. 240, 16 South 720 • 
 Prescott V. White, 18 111. App. 322. 
 
 Mobile & M. By. Co. v. Clanton, 59 Ala. 392, 31 Am. Rep. 15; Smith v. 
 Foran, 43 Conn. 241, 21 Am. Rep. 647; Walker v. Association, 18 Q. B. 277. 
 
§§ 265-271) RIGHTS, DUTIES, AND LUBILITIES INTER SE 603 
 
 have been judicially enforced or determined before suit is brought 
 against the servant."® If a servaiit uses in his own business prop- 
 erty of his master, delivered to him for use in his master's business, 
 he is liable to the mafeter for the value of the use.°^ So, too, the 
 servant impliedly contracts not to divulge the secret processes or 
 other trade secrets of the master."' It has also been held to be a 
 violation of his duty if in his capacity as an employe he learns that 
 the master wishes to acquire certain property, and secretly pur- 
 chases the same in order to sell it to the master at an advanced 
 price."* 
 
 A conspiracy between servants to injure the master in his busi- 
 ness gives the master a right of action against them for any dam- 
 ages sustained by him. Thus, where 18 journeymen tailors, work- 
 ing for a merchant tailor, by conspiracy between them, stopped 
 work simultaneously, and returned their work to him unfinished, 
 and worthless in that condition, and he was unable to get others to 
 finish the work, it was held that he might maintain an action 
 against them for damages. °" 
 
 Master and servant have a right to defend each other, and either 
 can justify a battery in defense of the other."^ 
 
 The Right to Wages 
 
 Of course, a .servant is entitled to recover his wages if he per- 
 forms the contract of hiring. If he does not perform in full, he 
 is nevertheless entitled to recover for the services rendered, if he 
 has a legal excuse for nonperformance in full.*^ Thus, if either 
 
 58 Smith V. Foran, 43 Conn. 244, 21 Am. Rep. 647. 
 
 57 Stebbins v. Waterhouse, 58 Conn. 370, 20 Atl. 480. 
 
 68 Taylor Iron & Steel Co. v. Nichols (N. J. Ch.) 65 Atl. 695; O. & W. Thum 
 Co. V. Tloczynski, 114 Mich. 149, 72 N. W. 140, 38 L. R. A. 200, 68 Am. St. Rep. 
 469. Injunction will lie to prevent an employ^ from disclosing secret process- 
 es ; and formulas. American Stay Co. v. Delaney, 211 Mass. 229, 97 N. E. 911, 
 Ann. Cas. 1913B, 509 ; Macbeth-Evans Glass Co. v. Schnelbach, 239 Pa. 76, 86 
 Atl. 688. Injunction will lie to prevent an employe from disclosing to a new- 
 employer a list of customers furnished him vrhen he entered the service of 
 complainant. Empire Steam Laundry Co. v. Lozier, 165 Oal. 95, 130 Pac! 1180, 
 44 L. R. A. (N. S.) 1159. 
 
 B9 American Circular Looim Co. v. Wilson, 198 Mass. 182, 84 N. E. 133, 126 
 Am. St. Rep. 409. 
 
 80 Mapstrick v. Ramge, 9 Neb. 390, 2 N. W. 739, 31 Am. Rep. 415. 
 
 612 Kent, Comm. 261 ; 1 Bl. Comm. 429. 
 
 62 Clark, Cont. 683, 684; Robinson v. Davison, L. R. 6 Exch. 269; Magida v. 
 Wiesen, 114 App. Div. 866, 100 N. Y. Supp. 268. He may recover if prevented 
 by the master from performing In fuU. Blood v. Enos, 12 Vt 625, 36 Am. Dec. 
 363. 
 
604 MASTER AND SEEVANT (Gh. 16 
 
 party dies before the end of the term, the wages may be recovered 
 by or against his personal representative, as the case may be, for 
 the services actually rendered."^ So incapacitating illness /excuses 
 further performance, and past wages may be recovered.** The 
 question of what operates as an excuse is explained in another sec- 
 tion.°° 
 
 In England, and in most of our states, contracts of hiring for a 
 specified term are regarded as entire, and the servant is not allowed 
 to recover for his services unless he alleges and proves full per- 
 formance on his part; such performance being held a condition 
 precedent to any liability on the part of the master. And it is 
 therefore held that if a servant willfully abandons the service, with- 
 out cause, before the end of the term, or if he is guilty of such a 
 breach of the contract as justifies the master in discharging him, 
 he cannot recover on an entire contract, even for the services ac- 
 tually rendered prior to the abandonment or discharge."" If tlfs 
 contract is divisible, the rule is different. Other courts regard this 
 doctrine as harsh, and, upon equitable principles, allow the serv- 
 ant, even in case of willful abandonment, or dismissal for cause, 
 to recover on the quantum meruit for the services rendered. He 
 has not performed on his part, and therefore he cannot recover 
 on the contract; but the action is based on a contract implied, or 
 rather created by law, because of the benefit received by the mas- 
 
 83 Terrington v. Greene, 7 R. I. 589, 84 Am. Dee. 578. 
 
 8* Fenton v. Clark, 11 Vt. 557; ante, p. 594, and cases there cited. 
 
 SBAnte, p. 593. 
 
 66 Lilley v. Elwin, 11 Q. B. 742; Cutter v. Powell, 6 Term R. 320; Ridgway 
 V. Market Co., 8 Adol. & B. 171 ;_ Stark v. Parker, 2 Pick. (Mass.) 267, 13 Am. 
 Dec. 425 ; Olmstead v. Beale, 19 Pick. (Mass.) 528; Miller v. Goddard, 34 Me. 
 102, 56 Am. Dec. 638; Erving v. Ingram, 24 N. J. Law, 520; Mather v. Brokaw, 
 43 N. J. Law, 587 ; Curlee v. Keiger, 45 111. App. 544 ; Badgley v. Heald, 4 Gil- 
 man (111.) 64; Hansen v. Erickson, 28 111. 257; Diefenback v. Stark, 56 Wis. 
 462, 14 N. W. 621, 43 Am. Rep. 719 ; NELICHKA v. ESTERLY, 29 Minn. 146, 
 12 N. W. 457, Cooley Cas. Persons and Domestic Relations, 318 ; Kohn v. Fan- 
 del, 29 Minn. 470, 13 J\. W. 904; Helm v. Wilson, 4 Mo. 41, 28 Am. Dec. 336 
 (but see, contra, Lee v. Ashbrook, 14 Mo. 378, 55 Am. Dec. 110) ; Timberlake 
 V. Thayer, 71 Miss. 279, 14 South. 446, 24 L. R. A. 231 ; Hutchinson v. Wet- 
 more, 2 Cal. 310, 56 Am. Dec. 337; Keane v. Liebler (Sup.) 107 N. Y. Supp. 
 102; McMillan v. Vanderlip, 12 Johns. (N. T.) 165, 7 Am. Dec. 299; Jennings 
 V. Camp, 13 Johns. (N. Y.) 94, 7 Am. Dec. 367; Reab v. Moor, 19 Johns. (N. 
 Y.) 337; Lantry v. Parks, 8 Cow. (N. Y.) 63. If the servant is not guilty of 
 any willful deviation Irom the terms of the contract, but fails to fulfill them, 
 and has performed work beneficial to the master, he may recover on the 
 quantum meruit. Blood v. Enos, 12 Vt. 625, 36 Am. Dec. 363. 
 
§§ 265-271) EIGHTS, DUTIES, AND LIABILITIES INTER SE 605 
 
 ter from the services rendered/' In such an action the recovery 
 is the reasonable value of the services, and, not the contract price, 
 but it cannot exceed the contract rate of compensation; and the 
 master may, by counterclaim, set up a.ny damages sustained by him 
 by reason of the servant's breach."' 
 
 Where there is no agreement as to the amount of compensation 
 to be paid for services, the law implies an obligation to pay what 
 they are reasonably worth.*" If the rate of compensation, or a 
 mode of determining the compensation, is fixed by the agreement, 
 it must govern.'" It is competent for the parties to leave it to the 
 master — or, indeed, to the servant, either — to fix the compensation, 
 after the services are rendered, at such a sum as he may think right 
 and proper; and his determination as to the amount will be con- 
 trolling, in the absence of fraud or bad faith. '^ 
 
 While a servant cannot as a rule recover additional compensa- 
 tion for extra work performed within the scope of his employment, 
 in the absence of an express agreement,'^ yet for work outside of 
 the scope of his regular employment, performed at the request of 
 the master, he is entitled to additional compensation, though there 
 was no express agreement therefor.'' 
 
 87 Britton V. Turner, 6 N. H. 481, 26 Am. Dec. 713; Lee v. Ashbrook, 14 Mo. 
 378, 55 Am. Dec. 110; Lowe v. Sinklear, 27 Mo. 310; Coe v. Smith, 4 Ind. 79, 
 58 Am. Dec. 618. 
 
 « 8 Taylor v. Paterson, 9 La. Ann. 251; Newman v. Reagan, 63 Ga. 755; Coe 
 V. Smith, 4 Ind. 79, 58 Am. Dec. 618. 
 
 • Millar v. Cuddy, 43 Mich. 273, 5 N. W. 316, 38 Am. Eep. 181 ; El well v. 
 Eoper, 72 N. H. 585, 58 Atl. 507; Hendrickson v. Woods, 77 App. Div. 644, 78 
 N. Y. Supp. 949 ; Eyan v. Dayton, 25 Conn. 188, 65 Am. Dec. 560 ; Tucker v. 
 Preston, 60 Vt. 473, 11 Atl. 726 ; Farrell v. Dooley, 17 111. App. 66. Where the 
 master agreed to pay "the same wages as shall be paid to other employes fill- 
 ing similar-positions," and it does not appear that there were other men fill- 
 ing similar positions, the servant may recover what the services were reason- 
 ably worth. Kent Furniture Mifg. Co. v. Ransom, 46 Mich. 416, 9 N. W. 454. 
 See, also, Crusoe v. Clark, 127 Cal. 341, 59 Pae. 700. 
 
 '0 Smith V. The Joshua Levines (D. C.) 4 Fed. 846. And see Laubach v. Ce- 
 dar Rapids Supply Co., 122 Iowa, 643, 98 N. W. 511. 
 
 71 Butler V. Mill Co., 28 Minn. 205, 9 N. W. 697, 41 Am. Rep. 277; Millar v. 
 Cuddy, 43 Mich. 273, 5 N. W. 316, 38 Am. Rep. 181. To the same efCect, see 
 Alford V. Cook (Sup.) 107 N. Y. Supp. 710. The mere fact that the master, un- 
 der such an agreement, fixes the compensation at an amount considerably less 
 than the court, upon the evidence, finds that the services were reasonably 
 worth, is not of itself suflS^cient to justify an inference of fraud or bad faith. 
 Butler v. Mill Co., supra. 
 
 72 Cany v. Halleck, 9 Cal. 198; Schurr v. Savigny, 85 Mich. 144, 48 N. W. 
 547. 
 
 73 Brown v. Crown Gold MilUng Co., 150 Cal. 376, 89 Pac. 86; Dull v. Bram- 
 
606 MASTER AND SERVANT (Ch. 16 
 
 SAME— MASTER'S LIABILITY FOR INJURIES TO 
 SERVANT 
 
 272 It is the duty of the master — which he cannot delegate, and 
 for a breach of which he is liable to the servant, in the 
 case of personal injuries — ^to use ordinary care — 
 
 (a) To provide reasonably safe and suitable tools and appliances. 
 
 (b) To provide reasonably safe premises. 
 
 (c) To provide competent fellow servants, and a sufficient^ num- 
 
 ber of them. 
 
 (d) To promulgate rules, where the nature of the work requires 
 
 them. 
 
 (e) To instruct and warn young and inexperienced servants. 
 
 273. The master is liable only for failure to exercise reasonable 
 
 care in the performance of these duties. He is not an in- 
 surer. 
 
 274. On entering the service a servant impliedly contracts that he 
 
 possesses the ordinary skill and experience of those en- 
 gaged in the occupation he undertakes, that he will ex- 
 ercise ordinary care to protect himself while engaged in 
 that occupation, and that he will assume the risks of the 
 employment, including the risks arising from the negli- 
 gence of fellow servants. But to this rule there are a 
 number of exceptions. 
 
 275. In many states the general rules as to the liability of the mas- 
 
 ter for injuries to his servant have been modified by stat- 
 utes, which in most instances enlarge the liability of the 
 master. 
 
 A master is under an obligation, implied in the contract of hir- 
 ing, to use reasonable and ordinary care to provide suitable means 
 and appliances to enable the servant to do his work as safely as 
 the hazards incident to the work will jiermit.'* If he fails to 
 
 hall, 49 111. 364; Cincinuatl, I. & O. R. Co. v. Clarkson, 7 Ind. 595. See, also, 
 Alford V. Cook (Sup.) 107 N. Y. Supp. 710, holding that, under a contract to 
 pay a salesman an additional sum if his sales were satisfactory, it lay with 
 the employer alone to determine whether the sales were satisfactory. 
 
 7 4( Bailey, Mast. Liab. 2, 13; Kotera v. American Smelting & Refining Co., 
 SO Neb. 648, 114 N. W. 945 ; Carter v. McDermott, 29 App. D. C. 145, 10 L. r! 
 A. (N. S.) 1103, 10 Ann. Gas. 601; Newton v. New York Cent & H. R. R. Co 
 
§§ 272-275) MASTBu's liability for injueies to servant 607 
 
 perform this duty, and by reason of his neglect the servant is in- 
 jured, he is liable in damages. As we shall see, ordinary care, 
 and such care only, is required. A master doe^ not insure the 
 absolute safety of the tools and appliances furnished. He i's bound 
 to use ordinary care to provide appliances that are reasonably safe 
 and suitable.'" He is not bound to supply the best, safest, or 
 newest. ■'* The test is general use in the business." He must 
 
 96 App. Div. 81, 89 N. T. Supp. 23, affirmed 18,3 N. T. 556, 76 N. E. 1102; Gibson 
 V. Railroad Co., 46 Mo. 163, 2 Am. Rep. 497; Hough v. Railway Co., lOO U. S. / 
 213, 25 L. Ed. 612; Columbian Enameling & Stamping Co. v. Burke, 37 Ind. 
 App. 518, 77 N. E. 409, 117 Am. St. Rep. 337; Pagan v. Southern Ry. Co., 78 S. 
 C. 413, 59 S. E. 32, 13 Ann. Cas. 1105 ; Gomez v. Tracey, 115 La. 824, 40 South. 
 234 ; Fllke v. Railway Co., 53 N. Y. 549, 13 Am. Rep. 545 ; Cone v. Railway Co., 
 81 N. Y. 207, 37 Am. Rep. 491; Chicago & N. W. Ry. Co. v. Jackson, 55 111. 492, 
 8 Am. Rep. 661; Toledo, W. & W. Ry. Co. v. Ingraham, 77 111. 309; Ford v. 
 Railway Co., 110 Mass. 240, 14 Am. Rep. 598; Stephenson v. Duncan, 73 Wis. 
 406, 41 N. W. 337, 9 Am. St. Rep. 806. 
 
 '5 Washington & G. R. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. 
 Ed. 235 ; Monsen v. Crane, 99 Minn. 186, 108 N. W. 9*3 ; McBondld v. Call- 
 lomia Timber Co., 7 Cal. App. 375, 94 Pae. 376 ; Conroy v. Morrill & Whiton 
 Const. Co., 194 Mass. 476, 80 N. E. 489; Dunn v. Nicholson, 117 Mo. App. 374, 
 93 S. W. 869; Bauman v. Cowdin, 75 N. J. Law, 193, 66 Atl. 914 ; Armour & 
 qo. V. Russell, 144 Fed. 614, 75 C. C. A. 416, 6 L. R. A. (N. S.) 602; Chicago, 
 B. & Q. R. Co. V. Avery, 109 111. 314 ; Pennsylvania Co. v. Lynch, 90 111. 333 ; 
 Richardson v. Cooper, 88 111. 270 ; Marsh v. Chickering, 101 N. Y. 400, 5 N. E. 
 56; Lyttle v. Railway Co., 84 Mich. 289, 47 N. W. 571. In Bauman v. Cowdm, 
 75 N. J, Law, 193, 66 Atl. 914, It was said that a master Is not liable when 
 an accident happens to a servant on the first occasion when the apparatus pur- 
 chased of a reliable manufacturer is used, if the method of use is the same 
 method as would be required to make a proper test. A master is not liable if 
 the machinery was in a reasonably safe condition or if there was some defec- 
 tive part, but such defective part did not cause the Injury. Atoka Coal & Min- 
 ing Co. V. Miller, 7 Ind. T. 104, 104 S. W. 555. The employer must use reason- 
 able care to provide safe appliances and to discover defects therein. Rio Grande 
 Southern R. Co. v. Campbell (Colo.) 176 Pac. 275. The duty of the master to 
 provide safe machinery Is not affected by knowledge of the servant of the de- 
 fect under the Employers' Liability Act of 1911 (St. 1911, p. 796). La Fleur 
 V. M. A. Burns Lumber Co., 38 Cal. App. 279, 176 Pac. 58. In view of the fed- 
 eral Safety Appliance Act (U. S. Comp. St. §§ 8605-8612) and the federal Em- 
 ployers' Liability Act (U. S. Comp. St. §§ 8657-8665), the duty of a railroad 
 company to furnish safe appliances is absolute. Thayer v. Denver & R. G. R. 
 Co., 21 N. M. 330, 154 Pac. 691; Noel v. Qulncy, O. & K. O. R. Co. (Mo. App.) 
 182 S. W. 787. See Safety Appliance Act March 2, 1893. (U. S. Comp. St. §§ 
 8605-8612), as to railway appUances. 
 
 78 Bailey, Mast. Liab. 23 et seq.; Vinson v. WlUingham Cotton Mills, 2 Ga. 
 App. 53, 58 S. B. 413; Smith v. Chicago Junction Ry. Co., 127 111. App. 89; 
 Blust v. Pacific States Telephone Co., 48 Or. 34, 84 Pac. 847 ; Monsen v. Crane, 
 99 Minn. 186, 108 N. W. 933 ; Belk v. Lee Roy Myers Cp., 17 Ga. App. 684, 87 
 
 " See note 77 on following page, 
 
608 MASTER AND SEEVANT (Ch. 16 
 
 keep his appliances in repair, and provide against liability to decay 
 from age, or wear out from use;"' but this does not apply to ap- 
 ].!iances which the servant is employed to repair/* He is not liable 
 for hidden defects, which were unknown, and which could not have 
 been discovered in the exercise of ordinary care.'" 
 
 While the proper fulfillment of his obligations imposes on the 
 master the duty of inspection,*^ he is not bound to inspect simple 
 
 S. B. 1089; Guyer v. Sterling Laundry Co., 171 Cal. 761, 154 Pac. 1057; Lehigh 
 & Wilkes-Barre Coal Co. v. Hayes, 128 Pa. 294, 18 Atl. 387, 5 L. E. A. 441, 15 
 Am. St. Rep. 680. The master is not bound to furnish any particular make 
 of machinery. Imhoof v. Northwestern Lumber Co., 43 Wash. 387, 86 Pac. 650. 
 
 '''Cases cited in preceding note; SPARKS v. RIVER & HARBOR IM- 
 PROVEMENT CO., 74 N. J. Law, 818, 67 Atl. 600, Cooley Cas. Persons and 
 Domestic Relations, 320 ; Filbert v. New Tork, N. H. & H. R. Co., 95 App. Div. 
 199, 88 N. Y. Supp. 438, affirmed 184 N.. Y. 522, 76 N. B. 1095 ; Central Grana- 
 ries Co. V. Ault,- 75 Neb. 249, 106 N. W. 418, 107 N. W. 1015 ; Northern Cent. 
 Ry. Co. y. Husson, 101 Pa. 1, 47 Am. Rep. 690; The Maharajah (D. C.) 40 
 Fed. 784 ; . Vinton v.- Schwab, 32 Vt. 614. But this test is not conclusive. 
 Camenzind v. Freeland Furniture Co., 89 Or. 158, 174 Pac. 139. 
 
 7 8 Richardson v. Cooper, 88 111. 270; International Mercantile Marine Co. v. 
 Fleming, 151 Fed. 203, 80 C. 0. A. 479 ; Armour & Co. v. Russell, 144 Fed. 614, 
 75 C. C. A. 416, 6 L. R'. A. (N. S.) 602 ; Gomez v. Tracey, 115 La. 824, 40 South. 
 234 ; Columbian Enameling & Stamping Co. v. Burke, 37 Ind. App. 518, 77 N. ' 
 E. 409, 117 Am. St. Rep. 837 ; Chicago, K. & W. R. Co. v. Blevins, 46 Kan. 370, 
 26 Pac. 687 ; Carter v. McDermott, 29 App. D. C. 145, 10 L. R. A. (N. S.) 1103, 
 10 Ann. Cas. 601; Haney v. St. Regis Mining & Smelting Co. (Mo. App.) 205 S. 
 W. 93; Newton v. New York Cent. & H. R. R. Co., 96 App. Div. 81, 89 N. Y. 
 Supp. 23, affirmed 183 N. Y. 556, 76 N. E. 1102 ; Pagan v. Southern Ry. Co., 78 
 S. C. 413, 59 S. E. 32, 13 Ann. Cas. 1105 ; Indiana Car Co. v. Parker, 100 Ind. 
 193 ; Rapho v. Moore, 68 Pa. 404, 8 Am. Rep. 202. 
 
 T» Murphy v. Railway Co., 88 N. Y. 146, 42 Am. Rep. 240; Howland v. Rail- 
 vp-ay Co., 54 Wis. 226, 11 N. W. ^29; Carlson v. Railway Co., 21 Or. 450, 28 
 Pac. 497. See, also, Healy v. Buffalo, R. & P. Ry. Co., Ill App. Div. 618, 97 
 N. Y. Supp. 801, where the defect was easily discoverable and could have been 
 repaired by the servant. Where power company does not furnish gloves to its 
 linemen handling wires electrically charged, it is not liable because of defects 
 in gloves which the lineman himself supplies. Clements v. Elizabeth City 
 Electric Light & Power Co., 176 N. C. 14, 96 S. E. 652. 
 
 so Columbus, C. & I. C. Ry. Co. v. Troesch, 68 111. 545, 18 Am. Rep. 578; New 
 Ca-stje Bridge Co. v. Steele, 38 Ind. App. 194, 78 N. B. 208; Bennett v. Him- 
 melberger-Harrison Lumber Co., 116 Mo. App. 699, 94 S. W. 808 ; Chicago & N. 
 W. R. Co. V. Scheuring, 4 111. App. 533; Gutridge v. Railway Co., 105 Mo. 520, 
 16 S. W. 943 ; Hart v. Naumburg, 123 N. Y. 641, 25 N. E. 385. 
 
 81 Ferris v. Shandy (Okl.) 174 Pac. 1060; Rio Grande Southern R. Co. v. 
 Campbell (Colo.) 176 Pac. 275; Levesque v. Charlton Mills, 222 Mass. 305, 110 
 N. E. 307; Wochner v. Pennslyvania Engineering Works, 251 Pa. 188, 96 Atl. 
 471; Columbian Enameling & Stamping Co. v. Burke, 37 Ind. App. 518, 77 N. 
 B, 409^ 117 Am. St. Rep. 337; Gomez v. Tracey, 115 La. 824, 40 South. 234; 
 Missouri, K. & T. Ry. Co. v. Hagan, 42 Tex. av. App. 133, 93 S. W. 1014 ; Gal- 
 
§§ 272-275) master's liability foe injuries to servant 609 
 
 tools,*^ or to make unusual inspections and tests to discover de- 
 fects.^' The master is not bound to provide against danger from 
 an unnecessary or inappropriate use of appliances Ipy the servant." 
 It is also one of the implied duties of the master to provide a 
 suitable and reasonably safe place for the doing of the work to 
 be performed by the servant, and to keep the premises in a reason- 
 ably safe condition.'? Thus he may be liable for leaving danger- 
 
 veston, H & S. A. Ry. Co. v. Parish (Tex. Civ. App.) 93 S. W. 682. A servant 
 is not obliged to pass judgment on his master's method of transacting his 'busi- 
 ness, but may assume that reasonable care will be used in fnmishing appli- 
 ances necessary for its operation. Carter v. McDermott, 29 App. D. C. 145, 10 
 li. E. A. (N. S.) 1103, 10 Ann. Cas. 601. 
 
 saKoschman v. Ash, 98 Minn. 312, 108 N. W. 514, 116 Am. St. Rep. 373; ' 
 Olson V. Great Northern Ry. Co., 141 Minn. 73, 169 N. W. 482 ; Turkey Foot 
 Lumber Co. v. Wilson, 182 Ky. 42, 206 S. W. 14 ; Meyer v. Ladewig, 130 Wis. 
 566, 110 N. W. 419, 13 L. R. A. (N. S.) 684. But the rule that a master is 
 not liablj for injuries resulting froni defects in very simple tools has no ap- 
 plication where the master has actual knowledge of the defect and the em- 
 ploye has not. Stork v. Charles Stolper Cooperage! Co., 127 Wis. 318, 106 
 N. W. 841, 7 Ann. Cas. 339. 
 
 83 Brossman v. Drake Standard Mach. Works, 232 111. 412, 83 N. E. 936. He 
 is chargeable with knowledge of defects which a proper inspection would have 
 disclosed. Rio Grande Southern R. Co. v. Campbell (Colo.) 176 Pac. 275. And 
 see Kimberlin v. Southwestern Bell Telephone Co. (Mo. App.) 206 S. W. 430. 
 
 « 4 Chicago & A. R. Co. v. Mahoney, 4 111. App. 262; Chicago, B. & Q;. R. 
 Co. V. Abend, 7 111. App. 130 ; Jayne v. Sebewaing Coal Co., 108 Mich. 242, 65 
 N. W. 971. See, also, Denver & R. G. R. Co. v. Sporleder, 39 Colo. 142, 89 
 Pac. 55, holding that, where the servant discarded the tools furnished him 
 by the master, not because they were unsafe, but because they were not handy, 
 and did not request the master to furnish other tools, but procured tools 
 which seemed to him to be more convenient by which he was subsequently 
 injured, he was not entitled to claim that the master was negligent in failing 
 to furnish him with safe tools. 
 
 85 Bailey, Mast. Liab. 2, 34; Pagan v. Southern Ry. Co., 78 S. C. 413, 59 
 S. E. 32, 13 Ann. Cas. 1105 ; Armour & Co. v. Russell, 144 Fed. 614, 75 C. C. A. 
 416, 6 L. R. A. (N. S.) 602; Gay v. Hocking Coal Co., 184 Iowa, 949, 169 N. 
 W. 360; Starkweather v. Dunlap, 103 Kan. 425, 173 Pac. 1122; Kotera v. 
 American Smelting & Refining Co., 80 Neb. 648, 114 N. W. 945 ; Coombs v. 
 Cordage Co., 102 Mass. 572, 3 Am. Rep. 506 ; Bessex v. Railway Co., 45 Wis. 
 477; Swoboda v. Ward, 40 Mich. 423; Smith v. Car .Works, 60 Mich.. 501, 27 
 N. W. 662, 1 Am. St. Rep. 542 ; Van Dusen v. Letellier, 78 Mich. 502, 44 N. 
 W. 572; Haskell & Barker Car Co. v. Prezezdziankowski, 170 Ind. 1, 83 
 N. B. 626, 14 !>. R. A. (N. S.) 972, 127 Am. St. Rep. 352 ; St. Louis, I. M. 
 & S. Ry. Co. V. Andrews, 79 Ark. 437, 90 S. W. 183 ; Williams v. Sleepy Hollow 
 Min. Co., 37 Colo. 62, 86' Pac. 337, 7 L. R. A. (N. S.) 1170, 11 Ann. Cas. Ill ; 
 Rigsby V. Oil Well Supply Co., 115 Mo. App. 297, 91 S. W. 460; Foreman 
 V. Eagle Rice Mill Co., 117 La. 227, 41 South. 555. The master must exercise 
 reasonable care. The Erie Lighter 108 (D. C.) 250 Fed. 490 ; Turner v. Buchs- 
 baum, 207 111. App. 323 ; Coral Ridge Clay Products Co. v. CoUins, 181 Ky. 
 TIFP.P.& D.Rel.(3d Ed.)— 39 
 
610 MASTER AND SERVANT (Ch. 16 
 
 ous machinery, such as cogwheels, knives, saws, etc., so exposed 
 that it may cause injury, when it ought to be covered or protect- 
 ed,*" or where, unknown to the servant, he allows stairways to re- 
 main in a dangerous condition.'^ But the rule requiring th6 master 
 to furnish a safe place to work does not apply when the servant is 
 
 818, 205 S. W. 958 ; Camenzind v. Freeland Furniture Co., 89 Or. 158, 174 Pac. 
 139. He must furnish lights if necessary. Long v. Foley, 82 W. Va. 502, 96 
 S. E. 794. A higher degree of care in providing a safe place in which to work 
 is imposed on an employer whose employes are underground, with scant 
 means of escape in case of danger, than where the employes are not subject 
 to unseen dangers, or are in a position to escape readily. Williams v. Sleepy 
 Hollow Min. Co., 37 Colo. 62, 86 Pac. 337, 7 L. K. A. (N. S.) 1170, 11 Ann. Cas. 
 111. The duty to furnish a safe place to work is a continuing one. Clegg v. 
 Seaboard Steel Casting Co., 34 Pa. Super. Ct. 63; Gillespie v. Grand Trunk 
 Ry. Co., 150 Mich. 303, 113 N. W. 1116. But see Howard v. Beldenville Lum- 
 ber Co., 129 Wis. 98, 108 N. W. 48, where it is held that, while a master is 
 absolutely required to furnish a servant with a safe place to work, he is 
 required to exercise only ordinary care to keep the place safe, an(^ if it be- 
 comes unsafe and the servant is injured before the master has knowledge of 
 the existence of the danger or a reasonable opportunity to obtain such knowl- 
 edge and remedy the defect, he is not liable. A telephone company is not 
 bound to furnish a lineman a reasonably safe place to work, as against 
 dangers inherent in the work of repair ; but it is liable if the danger arises 
 incident to the place where the work is done, as when it is made, dangerous by 
 adjacent electric power wires. Kimberlin v. Southwestern Bell Telephone Co. 
 (Mo. App.) 206 S. W'. 430. 
 
 seNadau v. Lumber Co., 76 Wis. 128, 43 N. W. 1135, 20 Am. St. Kep. 29; 
 Chopin v. Combined Locks Paper Co., 134 Wis. 35, 114 N. W. 95; Flynn v. 
 Prince, Colliers & Marston Co., lOH Mass. 224, 84 N. E. 321, 17 L. R. A. (N. 
 S.) 568; Jones v. R. J. Reynolds Tobacco Co., 141 N. C. 202, 53 S. E. 849; 
 Westman v. Wind River Lumber Co., 50 Or. 137, 91 Pac. 478 ; RofE v. Summit 
 Lumber Co., 119 La. 571, 44 South, 302 ; Wolff v. Foote Bros. Gear Mach. Co., 
 207 111. App. 311; Landrum v. Loose-Wiles Biscuit Co. (Mo. App.) 204 S. W. 
 930 ; Camenzind v. Freeland Furniture Co., 89 Or. 158, 174 Pac. 139 ; Guyer 
 V. Sterling Laundry Co., 171 Cal. 761, 154 Pac. 1057 ; Maurer v. Rogers, 250 
 Pa. 447, 95 Atl. 593. The employer is not bound to guard all dangerous places, 
 but only such places as he may reasonably anticipate will cause Injury to 
 servants. National Enameling & Stamping Co. v. Padgett, 251 Fed. 30, 163 
 C. C. A. 280. The covering of dangerous machinery is provided for by stat- 
 ute in most states. It has been held in Indiana that a failure to comply with 
 the statute Is negligence per se. United States Cement Co. v. Cooper (Ind. 
 App.) 82 N. E. 981. In Iowa it has been held that the statute does not im- 
 pose any greater duty on the master than would have existed without it. Sut- 
 ton V. Des Moines Bakery Co., 135 Iowa, 3Q0, 112 N. W. 836. Violation of 
 the terms of the Employers' Liability Act (Laws 1911, Or., p. 16), relating to 
 guarding machinery is negligence per se. Camenzind v. Freeland Furniture 
 Co., 89 Or. 158, 174 Pac. 139. 
 
 8 7 Sweet V. Coal Co., 78 Wis. 127, 47 N. W. 182, 9 L. R. A. 861; Conrad 
 V. Charles A. Stevens & Bros., 205 111. App. 494. 
 
§§ 272-275) master's liability for injuries to servant 61X 
 
 engaged in actually creating the place,'' nor to servants whose duty- 
 it is to make dangerous places safe,'" nor when the work in itself 
 constantly changes the character for safety of the place where the 
 servant is employed."" 
 
 It is also the implied duty of the master to provide other serv- 
 ants sufificient in number, and reasonably skilled and competent for 
 the performance of the service, so that the servant will not be ex- 
 posed to unnecessary risk from unskillful or incompetent fellow 
 servants, or from a lack of a sufficient number of them."^ If he 
 knowingly employs or retains a careless person or drunkard, for 
 instance, he may be liable if injury results to a fellow servant. If 
 there is no negligence, there is no liability for, injuries caused by an 
 incompetent servant."^ 
 
 88 Bertolami v. United Engineering & Contracting Co., 120 App. Div. 192, 
 105 N. Y. Supp. 90 ; Calumet Fuel Co. v. Rossi (Colo.) 173 Pac. 943. 
 
 8»KeUyvme Coal Co. v. Bruzas, 223 111. 595, 79 N. B. 309; Norman v. 
 Southern Ry. Co., 119 Tenn. 401, 104 S. W. 1088; Houston's Adm'x v. Sea- 
 Iward Air Line Ry., 123 Va. 290, 96 S. E. 270 ; Bird v. Utica Gold Min. Co., 
 2 Cal. App. 674, 84 Pac. 256. 
 
 80 Village of Montgomery v. Robertson, 229 111. 466, 82 N. E. 396; Norman 
 V. Southern By. Co., 119 Tenn. 401, 104 S. W. 1088; Falla v. Pine Moun- 
 tain Granite Co., 22 Ga. App. 651, 97 S. B. 114 ; Kancevich v. Cudahy Packing 
 Co., 184 Iowa, 799, 169 N. W. 186; Reid v. Jledley's Adm'r, llB Va. 462, 87 
 S. jE. 616; Bird v. Utica Gold Min. Co., 2 Cal. App. 674, 84 Pac. 256. Where 
 a servant is engaged in the business of wrecking, a building, his master is 
 not obligated to furnish him with a safe place to work. William Grace Co. 
 V. Kane,, 129 lU. App. 247. 
 
 91 Bailey, Mast. Liab. 3, 46 ; Pennsylvania R. Co. v. Hartell, 157 Fed. 667, 
 85 C. C. A. 335; Indiana Union Traction Co. v. Pring, 41 Ind. App. 247, 83 
 N. E. 733 ; Laning v. Railroad Co., 49 N. T. 521, 10 Am. Rep. 417 ; Booth v. 
 Railroad Co., 73 N. Y. 38, 29 Am. Rep. 97 ; Baulec v. Railway Co., 59 N. Y. 
 356, 17 Am. Rep. 325 ; Wabash Ry. Co. v. McDaniels, 107 U. S. 454^ 2 Sup. 
 Ct. 932, 27 L. Ed. 605 ; Horton v. Seaboard Air Line Ry., 145 N. C. 132, 58 
 S. B. 993 ; Carter v. McDermott, 29 App. D. C. 145, 10 L. R. A. (N. S.) 1103, 
 10 Ann. Cas. 601 ; Hamann v. Milwaukee Bridge Co., 127 Wis. 550, 106 N. W. 
 1081, 7 Ann. Cas. 458; Markinovich v. Northern Pac. Ry. Co., 55 Mont. 139, 
 174 Pac. 183; Lusk v. Phelps (Okl.) 175 Pac. 756; James v. Winifred Coal 
 Co., 184 Iowa, 619, 169 N. W. 121 ; Chicago & N. W. B. Co. v. Moranda, 108 
 lU. 576; Moss v. Railroad, 49 Mo. 167, 8 Am. Rep. 126; Gilman v. Railway 
 Corp., 10 Allen (Mass.) 233, 87 Am. Dec. 635; Harper v. Railway Co., 47 
 Mo. 567, 4 Am. Rep. 353 ; Michigan Cent. R. Co. v. Dolan, 32 Mich. 513 ; Hilts 
 V. RaUway Co., 55 Mich. 440, 21 N. W. 878 ; Michigan Cent. R. Co. v. Gilbert, 
 46 Mich. 179, 9 N. W. 243. A master, in selecting employes, must exercise rea- 
 sonable care, considering the nature of the employment, and, if that involves 
 special knowledge, only men of special knowledge should be engaged. Wood- 
 ward Iron Co. V. Curl, 153 Ala. 215, 44 South. 969. 
 
 92 Columbus, C. & I. C. Ry. Co. v. Troesch, 68 111. 545, 18 Am. Rep. 578; 
 Stone-Webster Engineering Corporation v. Collins, l£i9 Fed. 581, 118 C. C. A. 
 
612 MASTER AND SERVANT (Ch. 16 
 
 • While it is generally sufficient if the master adopts the usual and 
 customary methods of work/' it is not his duty to adopt the most 
 approved methods ; "* and negligence will not lie imputed to him, 
 though he has not adopted methods used by others in the same 
 business. °° If, however, the master adopts a dangerous method of 
 work, he should take correspondingly appropriate precautions to 
 guard against the increased danger.^* So it is the duty of a mas- 
 ter, where the nature of his business requires it, as in the case of 
 railroad companies, to prpmulgate rules for the protection of em- 
 ployes."^ 
 
 It is the master's duty to inform the servant of latent dangers, 
 or dangers arising from extraneous causes, known to him, where 
 the servant has no knowledge of them, and knowledge cannot be 
 
 55; Santiago v. John E. Walsh Stevedore Co., 152 App. Div. 697, 137 N. T. 
 Supp. 611 ; Woodward Iron Co. v. Curl, 153 Ala. 215, 44 South. 969. The fact 
 that the employe did not understand English does hot show negligence on the 
 part of the master in employing him. Date v. New York Glucose Co., 114 
 App. Div; 789, 100 N. T. Supp. 171, affirmed 190 N..Y. 510, 83 N. B. 1124. 
 
 83 Larson v. St. Paul, M. & M. Ry. Co., 43 Minn. 423, 45 N. W. 722; Allen v. 
 Burlington, C. R. & N. Ry. Co., 64 Iowa, 94, 19 N. W. 870. 
 
 94 O'Neil V. Karr, 110 App. Div. 571, 97 N. Y. Supp. 148. 
 
 05 Pearsall v. New York Cent. & H. R. R. Co., 189 iN. Y. 474, 82 N. E. 752. 
 
 8 8 Smith V. Rock Isiand, A. & L. R. Co., 119 La. 537, 44 South. 290. 
 
 97 Bailey, Mast. Liab. 71; Slater v. Jewett, 85 N. Y. 62, 39 Am. Rep. 627; 
 Abel V. Canal Co., 103 N. Y. 581, 9 N. E. 325, 57 Am. Rep. 773 ; Illinois Cent. 
 R. Co. V. Whittemore, 43 111. 420, 92 Am. Dec. 138 ; Chicago, B. & Q. R. Co. 
 V. McLallen, 84 111. 109; Lewis v. Seifert, 116 Pa. 628, 11 Atl. 514, 2 Am. 
 St. Kep. 631; Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S. B. 839, 10 
 L. R. A. (N. S.) 772 ; Ryan v. Delaware & Hudson Co., 114 App: Div. 268, 99 
 N. Y. Supp. 794, affirmed 188 N. Y. 559, 80 N. B. 1119 ; Morrison v. San Pedro, 
 L. A. & S. L. R. Co., 32 Utah, 85, 88 Pac. 998 ; Illinois Cent. R. Co. v. Pane- 
 biango, 129 111. App. 1, affirmed 227 111. 170, 81 N. B. 53 ; St. Louis & S. F. R. 
 Co. V. Ames (Tex. Civ. App.) 94 S. W. 1112. An employer is required to make 
 rules to guard against only such accidents as may reasonably be foreseen. 
 Dzkowski V. Reynoldsville Carting Co., 216 N. Y. 173, 110 N. E. 442, reversing 
 155 App. Div. 943, 140 N. Y. Supp. 1117. Failure to make a rule will not con- 
 stitute negligence when no occasion had ever arisen to 'show the necessity 
 therefor prior to the injury complained of. St. Louis, K. G. & O. R. Co v 
 Conway, 156 Fed. 234, 86 C. 0. A. 1. To bind the servant the rule must be 
 properly published or brought to his attention. Anderson v. Great Northern 
 Ry. Co., 102 Minn. 355, 113 N. W. 913. When the duties to be performed 
 are simple and the appliances easily understood, the promulgation of rules 
 is not necessary. Blust v. Pacific' States Telephone Co., 48 Or: 34, 84 Pac. 
 847. Though the master makes an express rule prohibiting certain acts by his 
 servants, if they constantly disregard the rule with his knowledge and ac- 
 quiescence, it is a waiver of the rule by the master. Powhatan Lime Co v 
 Whetzel's Adm'x, 118 Va. 161, 86 S. B. 898. " ' 
 
§§ 272-275) mastbe's liability for injuries to servant 61.'? 
 
 imputed to him,'' And he must inform the servant of obvious 
 dangers, where the servant cannot be presumed to appreciate or 
 understand them. This is peculiarly applicable to servants of ten- 
 der years."' It applies also, however, to inexperienced persons of 
 mature years.'^ It is not enough to inform the servant gener- 
 ally that the service is dangerous, but the particular perils and 
 dangers must be pointed out.^ There is no duty to give informa- 
 tion as to dangers which are known or obvious, and which he has 
 
 » 8 Bailey, Mast laab. 109 et seq. ; Coombs v. Cordage Co., 102 Mass. 572, 
 3 Am. Eep. 506 ; Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160 ; Markle- 
 wltz V. Olds Motor Works, 152 Mich. 113, 115 N. W. 999 ; Swiercz v. Illinois 
 Steel Co., 231 111. 456, 88 N. E. 168 ; Hardy v, Chicago, R. I. & P. Ry. Co., 
 139 Iowa, 314, 115 N. W. 8, 19 L. R. A. (N. S.) 997 ; Southern Cotton Oil Co. 
 V. Skipper, 125 Ga. 368, 54 S. B. 110; Edington v. St Louis & S. F. R. Co., 204 
 Mo. 61, 102 S. W. 491 ; Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 
 58 S. E. 249; Kemp v. McNeill Cooperage Co. (Del. Super.) 104 Atl. 639; 
 Murphy v. Old Colony St Ry. Co., 280 Mass. 338, 120 M. E. 361; Casey-Hedges 
 Co. V. Oliphant, 228 Fed. 636, 143, C. C. A. 158. If the master fails to warn 
 the servant of a danger known to the master, he is also liable for any in- 
 jury to the servant from an unknown danger coimected with the same appli- 
 ance or material. Collins v. Pecos & N. T. R. Co. (Tex. Com. App.) 212 S. 
 W. 477. But see Pinkley v. Chicago & E. I. R. Co., 246 111. 870, 92 N. E. 896, 
 35 L. R. A. (N. S.) 679. 
 
 8 9 Rolling Mill Co. v. Corrigan, 46 Ohio St 288, 20 N. B. 466, 15 Am. St 
 Rep. 596 ; Tagg v. McGeorge, 155 Pa. 368, 26 Atl. 671, 35 Am. St. Rep. 889 ; 
 Dowling V. Allen, 74 Mo. 13, 41 Am. Rep. 298 ; Ford v. Anderson, 139 Pa. 263, 
 21 Atl. '18; Steiler v. Hart, 65 Mich. 644, 32 N. W. 875; Chopin v. Paper 
 Co., 83 Wis. 192, 53 N. W. 452 ; Burrows v. Ozark White Lime Co., 82 Ark. 
 843, 101 S. W. 744 ; Beck v. Standard Cotton Mills, 1 Ga. App. 278, 57 S. E. 
 998; Long v. Folwell Bros. & Co., 228 Pa. 314, 77 Atl. 557; Chambers v. 
 Woodbury Mfg. Co. of Baltimore County, 106 Md. 496, 68 Atl. 290, 14 L. R. A. 
 (N. S.) 883 ; Woodstock Iron Works v. Kline, 149 Ala. 391, 43 South. 362. 
 But where an infant employ^ who had reached the age of discretion gave as- 
 surances that he understood the duties of his position, the employer was 
 not obliged to give him any special instructions. King v. Woodstock Iron 
 Co., 143 Ala. 682, 42 South. 27. 
 
 1 Fox v. Color Works, 84 Mich. 676, 48 N. W. 203 ; . Metayer v. Grant, 222 
 Mass. 254, 110 N'. B. 310 ; Chopin v. Paper Co., 83 Wis. 192,, 53 N. W. 452 ; 
 Parkhurst v. Johnson, 50 Mich. 70, 15 N. W. 107, 45 Am. Rep. 28; Pennsyl- 
 vania B. Co. V. Kartell, 157 Fed. 667, 85 C. O. A. 385; Coughlan v. Phila- 
 delphia, B. & W. R. Co., 6 Pennewill (Del.) 242, 67 Atl. 148 ; American Brake 
 Shoe & Foundry Co. v. Toluszis, 125 111. App. 622 ; Sias v. Consolidated Light- 
 ing Co., 79 Vt. 224, 64 Ath 1104; Vohs v. Shorthill & Co., 130 Iowa, 538, 107 
 N. W. 417 ; Wikstrom v. Preston Mill Co., 48 Wash. 164, 98 Pac. 218 ; Swiercz 
 V. Illinois Steel Co., 231 111. 456, 83 N. E. 168. 
 
 2 Bailey,' Mast. Liab. 112 ; Bradburn v. Wabash R. Co., 134 Mich. 575, 96 
 N. W. 929; Addicks v. Christoph, 62 N. J. Law, 786, 43 Atl. 196, 72 Am.' St 
 Rep. 687. 
 
614 MASTER AND SERVANT (Ch. 16 
 
 a right to presume the servant understands.* The master cannot 
 be held liable, however, for failure to warn the servant of every 
 transitory risk, when the only thing the servant does not know is 
 the precise time when the danger will supervene.* 
 
 The master is not an insurer of his servant's safety ; ° but in the 
 performance of the above duties he is bound only to use ordinary, 
 reasonable care." The question arises, what is ordinary care? It 
 was said in a late case, by the Supreme Court of the United States : 
 "There is no fixed standard in the law by which a court is enabled 
 to arbitrarily say in every case what conduct shall constitute ordi- 
 nary care under any and all circumstances, The terms 'ordinary 
 care,' 'reasonable prudence,' and such like terms, as applied to the 
 conduct and affairs of men, have a relative significance, and can- 
 not be arbitrarily defined. What may be deemed care in one case 
 may under different surroundings and circumstances be gross neg- 
 ligence. The policy of the law has relegated the determination of 
 such questions to the jury, under proper instructions from the 
 court. It is their province to note the special circumstances and 
 
 3 Kancevich v. Cudahy Packing Co., 184 Iowa, 799, 169 N. W. 186 ; E. 1. 
 Du Pont De Nemours & Co. v. Hipp, 123 Va. 280, 96 S. E. 280; Marshall v. 
 Chicago, E. I. & P. Ey. Co., 131 Minn. 392, 155 N. W. 208 ; National Drainage 
 Co. V. Bell, 121 Ark. 633, 180 S. W. 984. 
 
 * Bailey, Mast. Liah. 112, 118; Smith v. Car Works, 60 Mich. 506, 27 N. 
 W. 662, 1 Am. St. Eep. 542; Pittsburgh, C. & St. L. Ey. Co. v. Adams, 105 
 Ind. 152, 5 N. E. 187 ; Crowley v. Mills, 148 Mass. 228, 19 N. E. 344 ; Cross v. 
 Boston & M. E. Co., 223 Mass. 144, 111 N. E. 676 ; Fones v. Phillips, 39 Ark. 
 17, 43 Am. Eep. 264 ; Boyd v. Taylor, 195 Mass. 272, 81 N. E. 277 ; Eisenberg 
 V. Eraim, 215 Pa. 570, 64 Atl. 793; White v. Owosso Sugar Co., 149 Mich. 
 473, 112 N. W. 1125; Hardy v. Chicago, E. I. & P. Ey. Co., 139 Iowa, 314, 
 115 N. W. 8, 19 L. R. A. (N. S.) 997 ; Magone v. Portland Mfg. Co., 51 Or. 21, 
 93 Pac. 450; Norman v. Southern Ey. Co., 119 Tenn. 401, 104 S. W. 1088. 
 
 5 Southern Ey. Co. v. Carr, 153 Fed. 106, 82 C. C. A. 240 ; Cudahy Packing 
 Co. V. Wesolowski, 75 Neb. 786, 106 N. .W. 1007; Meyers v. Ideal Steam 
 Laundry, 60 Wash. 134, 110 Pac. 803 ; Guest v. Edison Illuminating Co., 150 
 Mich. 438, 114 N. W. 226; Grace v. Globe Stove & Eange Co., 40 Ind. App. 
 326, 82 N. E. 99; Zeis v. St. lA)uis Brewing Ass'n, 205 Mo. 638, 104 S. W. 
 99; Vilter Mfg. Co. v. Kent, 47 Tex. Civ. App. 462, 105 S. W. 525. 
 
 « Bailey, Mast. Liab. 8 et seq. ; Chicago, B. & Q. E. Co. v. Avery, 109 111. 
 314; Eichardson v. Cooper, 88 111. 270; Devlin v. Smith, 89 N. Y. 470, 42 
 Am. Eep. 311; McDonnell v. Oceanic Steam Nav. Co., 143 Fed. 480, 74 C. C. 
 A. 500; American Bridge Co. v. Seeds, 144 Fed. 605, 75 0. O. A. 407, 11 ti. 
 E. A. (N. S.) 1041; Coughlan v. Philadelphia, B. & W. R. Co., 6 Pennewill 
 (Del.) 242, 67 Atl. 148 ; Swiercz v. Illinois Steel Co., 231 111. 456. 83 N. E. 168 : 
 Brusseau v. Lower Brick Co., 133 Iowa, 245, 110 N. W. 577; Kremer v" 
 Eagle Mfg. Co., 120 Mo. App. 247, 96 S. W. 726 ; Blonski v. American Enam- 
 eled Brick & Tile Co., 72 N. J. Law, 409, 60 Atl. 1101. 
 
§§ 272-275) master's liability for injuries to servant 615 
 
 surroundirtgs of each particular case, and then say whether the 
 conduct of the parties in that case was such as should be expected 
 of reasonably prudent men under a similar state of affairs." ^ "The 
 rule," said the New York court, "is simple, practical, and easy of 
 application. The question is, what would a majority of men of 
 common intelligence have done under like circumstances? Oi'di- 
 nary care, skill, and diligence is such a degree of care, skill, and 
 diligence as men of ordinary prudence, under similar circumstanc- 
 es, usually employ." * The degree of bare must be proportionate 
 to the dangers of the employment," in so far as those dangers are 
 known to the master.^" 
 
 While the general rule applies even when the servant is a mi- 
 nor,^^ yet the age, intelligence, experience, and capacity of the serv- 
 ant must be taken into consideration in determining whether the 
 master has exercised due care.^" 
 
 The master's duty to furnish suitable tools and appliances, and to 
 keep them in repair, to provide and maintain a reasonably safe place 
 for work, to promulgate reasonable rules, where they are required 
 by the nature of the business and to inform servants of hidden 
 dangers, and instruct young or inexperienced servants, is personal, 
 and he cannot delegate them. He may delegate the performance 
 
 ' Grand Trunk Ry. Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. 679, 36 L. Ed. 485. 
 
 8 Ernst V, Railroad Co., 35 N. Y. 9, 90 Am. Dec. 761 ; Grace v. Globe Stove 
 & Range Co., 40 Ind. App. 326, 82 N. E. 99; Atoka Coal & Mining Co. v. 
 Miller, 7 Ind. T. 104, 104 S. W. 555. And see Marsh v. Chickering, 101 N. Y. 
 400, 5 N. E. 56; Read v. Morse, 34 Wis. 318; Michigan Cent. R. Co. v. Cole- 
 man, 28 Mich. 448 ; Holly v. Gaslight Co., 8 Gray (Mass.) 131, 69 Am. Dec. 283 ; 
 Cayzer v. Taylor, 10 Gray (Mass.) 280, 69 Am. Dec. 317 ; Vinton v. Schwab, 32 
 Vt. 612. 
 
 9 Bowring v. Wilmington Malleable Iron Co., 5 Pennewill (Del.) 594, 66 Atl. 
 369. 
 
 i» Charron v. Union Carbide Co., 151 Mich. 687, 115 N. W. 718. 
 
 11 Decatur Oar Wheel Co. v. Terry, 148 Ala. 674, 41 South. 839. Under the 
 statutes of some of the states, regulating the employment of child labor, the 
 employment of a child under the age prescribed is negligence per se. See 
 Perry v. Tozer, 90 Minn. 431, 97 N. W. 137, 101 Am. St. Rep. 416 ; Telinko v. 
 Pittsburgh Coal Co., 68 Pa. Super. Ct. 143 ; Waterman Lumber Co. v. Beatty 
 (Tex. Civ. App.) 204 S. W. 448; Norman v. Virgirlla-Pocahontas Coal Co., 68 
 W. Va. 405, 69 S. E. 857, 31 L. R. A. (N. S.) 504 ; Piatt v. Southern Photo 
 Material Co., 4 Ga. App. 159, 60 S. E. 1068. 
 
 12 Daniels v. Johnston, 39 Colo. 177, 89 Pac. 811; Bare v. Crane Creek 
 Coal & Coke Co., 61 W. Va. 28. 55 S. B. 907. 8 L. R. A. (N. S.) 284. 123 Am. 
 St. Rep. 966 ; Chambers v. Woodbury Mfg. Co., 106 Md. 498, 68 Atl. 290, 14 L. 
 R. A. (N. S.) 383; Beck v. Standard Cotton Mills, 1 Ga. App. 278, 57 S. E. 
 998. 
 
GIG MASTER AND SERVANT (Ch. 16 
 
 of them, but his responsibility remains." There is considerable 
 conflict between the courts in the application of this doctrine.^* 
 
 Assumption of Risk by Servant 
 
 It is said that, when a person enters into the service of another, 
 he impliedly contracts that he possesses the ordinary skill and ex- 
 perience of those engaged in the occupation which he undertakes, 
 that lie will exercise ordinary care to protect himself while en- 
 gaged in th^t occupation, and that he will assume the risks of his 
 employment.^' Mr. Jaggard, in his work on Torts, thus states the 
 general rules relating to the assumption of the risks of his employ- 
 ment by a servant.^" As he points out, the risks which the serv- 
 ant assumes may arise (a) from circumstances exclusive of the risk 
 of fellow servants, and may be either (1) the ordinary risks of the 
 employment; (2) the extraordinary risks of the employment; or (b) 
 from the negligence of fellow servants. 
 
 15 Bailey, Mast. I/lab. 128. Selecting tools and appliances. Morton v. De- 
 troit, B. C. & A. K. Co., 81 Mich. 423, 46 N. W. Ill ; Moore v. Dublin Cotton 
 Mills, 127 Ga. 609, 56 S. E. 839, 10 L, E. A. (N. S.) 772; Russell v. Borden's 
 Condensed Milk Co. (Utah) 174 Pac. 638; Phillips v. Corbin & Fannin, 166 
 Ky. 638, 179 S. W. 586; Klunk v. Blue Pearl Granite Co., 170 N. C. 70, 86 
 S. E. 800 ; Mississippi Cent. B. Co. v. Hardy, 88 Miss. 732, 41- South. 505 ; 
 Kane v. Babcock & Wilcox Co., 75 N. J. Law, 698, 67 Atl. 1014; Huber v. 
 Whale Creek Iron Works, 125 App. Div. 184, 109 N. Y. Supp. 177 ; Anderson 
 V. Milliken Bros., 123 App. Div. 614, 108 N. T. Supp. 61 ; Jemnienski v. Lob- 
 dell Car Wheel Co., 5 Pennewill (Del.) 385, 63 Atl. 935. But the operation of 
 appliances can be delegated. Tilley v. Rockingham County Light & Power 
 Co., 74 N. H. 316, 67 Atl. 946. Inspection of tools and appliances. Martin v. 
 Wabash R. Co.,' 142 Fed. 650, 73 C. C. A. 646, 6 Ann. Cas. 582 ; Northern Pac. 
 R. Go. V. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Newton v. 
 New York Cent. & H. R. R. Co., 96 App. Div. 81, 89 N. Y. Supp. 23, affirmed 
 183 N. Y. 556, 76 N. E. 1102. Place of work. Combs v. Kountree Const. Co., 
 205 Mo. 367, 104 S. W. 77 ; McGrath v. Fogel (Mo. App.) 182 S. W. 813 ; Ben- 
 ton V. Finkbine Lumber Co., 118 Miss. 558, 79 South. 346; Jemnienski v. 
 Lobdell Car Wheel Co., 5 Pennewill (Del.) 385, 63 Atl. 935 ; Smith v. Dayton 
 Coal & Iron Co., 115 Tenn. 543, 92 S. W. 62, 4 L. R. A. (N. S.)'1180; Antioch 
 Coal Co. V. Rockey, 169 Ind. 247, 82 N. E. 76. Employment of other servants. 
 Lanlng v. New York Cent. R. Co., 49 N. Y. 521, 10 Am. Rep. 417. Promulga- 
 tion of rules. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S. B. 839, 10 
 L. R. A. (N. S.) 772; Gaska v. American Car & Foundry Co., 127 Mo. App. 
 169, 105 S. W. 3. Warning and instructing. Moore v. Dublin Cotton Mills, 
 127 Ga. 609, 56 S. E. 839, 10 L. R. A. (N. S.) 772; Murphy v. Old Colony St. 
 Ry. Co., 230 Mass. 333:, 120 N. B. 361; Schminkey v. T. M. Sinclair & Co., 
 137 Iowa, 130, 114 N. W. 612. 
 
 14 Bailey, Mast. Llab. 128-141, where the doctrine is discjissed at length. 
 See post, p. 626. 
 10 2 Jag. Torts, 1013 et seq. ; Bailey, Mast. Liab. 142 et seq. 
 
 16 See 2 Jag. Torts, 1014 et seg. 
 
§§ 272-275) master's liability for injuries to servant 617 
 
 Same — Ordinary Risks 
 
 "Excluding the negligence of fellow servants, a servant assumes 
 the ordinary risks of his employment, with the instrumentalities, 
 in the place, and under the rules of work for which he is engaged, 
 which are reasonably necessary and incidental to it, and which are 
 apparent to ordinary observation: .provided (a) he knew and ap- 
 preciated, or should have known and appreciated, the risks and 
 dangers, in the prudent exercise of his senses and common sense, 
 regard being had to his age, capacity, and experience ; and provided 
 (b) the master has exercised reasonable care to prevent them." " 
 If a piece of machinery is obviously dangerous, ordinarily, one who 
 undertakes to work at it assumes the risk of injuries therefrom.^* 
 
 17 See 2 Jag. Torts, 1014 et seq. ; Borden v., Daisy Roller Mill Co., 98 Wis. 
 407, 74 N. W. 91, 67 Am. St. Kep. 816 ; Davidson v. Cornell, 132 N. T. 228, 
 30 N. E. 573; Houston's Adm'x v. Sekboard Air Line Ey., 123 Va. 290, 96 S. 
 E. 270; Falla v. Pine Mountain Granite Co., 22 Ga. App. 651, 97 S. I). 114; 
 Whalen v. Michigan Gent. R. Co., 114 Mich. 512, 72 N. W. 323; Illinois 
 Steel Co. V. Saylor, 129 111. App. 73, affirmed 226 111. 283, 80 N. B. 783 ; Dep- 
 ver & R. 6. R. Co. v. Warring, 37 Colo. 122, 86 Pac. 305; Missouri, K. & 
 T. Ry. Co. V. Hudson (Old.) 175 Pac. 743; Southern Cotton Oil Co. v. Skip- 
 per, 125 Ga. 368, 54 S. B. 110; Rigshy v. Oil Well Supply Co., 115 Mo. App. 
 297, 91 S. W. 460. Negligence of the master is not one of the risks assumed 
 by the servant. Chicago, M. & St. P. Ry. Co. v. Riley, 145 Fed. 137, 76 C. C. A. 
 107, 7 Ann. Cas. 327 ; Jensen v. Kyer, 101 Me. 106, 63 Atl. 389 ; Superior Coal 
 & Mining Co. v. Kaiser, 229 111. 29, 82 N. E. 239, 120 Am. St. Rep. 233. Neither 
 does the servant assume the risk of a violation of an express statutory db- 
 ligation imposed on the master for the protection of employes. Murphy v. 
 Grand Rapids Veneer Works, 142 Mich. 677, 106 N. W. 211, Cooley Cas. 
 Persons and Domestic Relations, 329 ; Chicago & A. Ry. Co. v. Walters, 120 
 lU. App. 152, affirmed 217 111. 87, 75 N. B. 441. While the rule as to as- 
 sumption of risk applies to minors (Decatur Car Wlieel Co. v. Terry, 148 Ala. 
 674. 41 South. 8.S9), his age, intelligence, and capacity are to he considerq^ 
 (Moss V. Mosley, 148 Ala. 168. 41 South. 1012; Magone v. Portland Mfg. 
 Co., 51 Or. 21, 93 Pac. 450), and he will be held to have assumed only such 
 risks as he could understand and appreciate (Laverty v. Hambrick, 61 W. Va. 
 687, 57 S. E. 240: Keckvvich Organ Co. v. Malone, 106 S. W. 809, 32 Ky. 
 Law Rop. D96). Tlie federal Employers' Liability Act (U. S. Comp. St. §§ 
 8657-8665) does not abolish, the cojumon-law rule as to the assumption of 
 the ordinary risks of employment. King v. Norfolk & S. R. Co., 176 N. C. 301, 
 97 S. B. 29, certiorari denied Norfolk & S. R. Co. v. King, 249 U. S. 599, 39 
 Sup. Ct. 25T, 63 L. Ed. 795 
 
 !*■ Anderson v. Lumber Co., 47 Minn. 128. 49 N. W. 664; Crowley v. Pacific 
 Mills, 148 Mass. 228, 19 N. E. 344 ; Hickey v. Taaffe, 105 N. Y. 26, 12 N. B. 
 286 ; Prentiss v. Munufae'turing Co., 63 Mich. 478, .30 N. W. 109 ; Chicago, B. 
 & Q. R. Co. V. Merckes, 36 111. App. 195 ; United States Rolling Stock Co. v. 
 Cha:dwick, 35 111. App. 474; O'Keefe v. Thorn (Pa.) 16 Atl. 737; Townsend 
 V. Langles (C. C.) 41 Fed. 919 ; McCormiek Harvesting Mach. Co. v. Zakzew- 
 ski, 220 111. 522, 77 N. E. 147, 4 L. R. A. (N. S.) 848, reversing 121 111. App. 
 
618 MASTER AND SERVANT (Ch. 16 
 
 And, generally, if he works with machinery or tools which he 
 knows, or should reasonably know, to be defective, and therefore 
 dangerous, he assumes the risk.^° The rule is the 'same where a 
 servant works in a place which is obviously dangerous, or which he 
 knows to be dangerous.^" 
 
 Same — Extraordinany Risks 
 
 "The servant cannot recover from his employer for damages con- 
 sequent upon extraordinary risks which he has knowingly assum- 
 ed." ^^ A servant does not assume extraordinary risks unless he 
 
 26; Moran v. Mulligan, 110 App. Dlv. 208, 97 N. Y. Supp. 7; Eigsby v. Oil 
 Well Supply Co, 115 Mo. App. 297, 91 S. W. 460. EfCect of statutes providing 
 for guarding machinery to modify the rule as to assumption of risk, see 
 Inland Steel Co. v. Kachwinsld, 151 Fed. 219, 80 C. O. A. 571; Southern Pac. 
 Co. V. Allen, 48 Tex. Civ. App. 66, 106 S. W. 441 ; Johnson v. Far West Lumber 
 Co., 47 Wash. 492, 92 Pac. 274 ; Rector v. Bryant Lumber & Shingle MiU Co., 
 41 Wash. 556,. 84 Pac. 7. 
 
 19 Michael v. Stanley, 75 Md. 464, 23 Atl. 1094 ; Bradley v. Vandalia R. 
 Co., 207 111. App. 592; Loving v. Atlantic Southern R. Co., 184 Iowa, 435, 168 
 'N. W. 910 ; Rietman v. Stolte, 120 Ind. 314, 22 N. B. 304 ; Way v. Railway 
 Co., 40 Iowa, 341; Anderson v. Railroad Co., 39 Minn. 523, 41 N. W. 104; 
 Shaw V. Sheldon, 103 N. Y. 667, 9 N. E. 183; American Smelting & Re- 
 fining Co. V. McGee, 157 Fed. 69, 84 C. C. A. 573 ; Kath v. East St. Louis' & S. 
 Ry. Co., 232 111. 126, 83 N. E. 533, 15 L. R. A. (N. S.) 1109 ; Banks v. Scho- 
 field's Sons Co., 126 Ga. 667, 55 S. B. 939; United States Wind Engine & Pump 
 Co. v. Butcher, 223 111. 638, 79 N. B. 304, 114 Am. St. Rep. 336, afBrming 126 
 111. App. 302. 
 
 2 2 Jag. Torts, 1017; Bailey, Mast. Liab. 142 et seq. ; McGrath v. Rail- 
 way Co., 60 Fed. 555, 9 O. C. A. 133; Ragon v. Railway Co., 97 Mich. 265, 
 56 N. W. 612, 37 Am. St. Rep. .336 ; Gibson v. Railway Co., 63 N. Y. 449, 20 
 Am. Rep. 552; Peely v. Cordage Co., 161 Mass. 426, 37 N. E. 368; Coal Creek 
 Min. Co. V. Davis, 90 Tenn. 711, 18 S. W. 387; Norfolk & W. Ry. Cd. v. Gess- 
 wine, 144 Fed. 56, 75 C. C. A. 214; Welch v. Carlucci Stone Co., 215 Pa. 34, 
 64 Atl. 392, 7 Ann. Cas. 292 ; Knorpp v. Wagner, 195 Mo. 637, 93 S. W. 961; 
 Schillinger Bros. Co. v. Smith, 225 111. 74, 80 N. E. 65; Rigsby v. Oil Well 
 Supply Co., 115 Mo. App. 297, 91 S. W. 460. Blasting in quarry. Falla v. 
 Pine Mountain Granite Co., 22 Ga. App. 651, 97 S. B. 114. Injury to lum- 
 berman by dislodged logs. D. E. Hewitt Lumber Co. v. Cisco, 181 Ky. 612, 
 205 S. W. 677. While the employe is b'ound tcf take notice of obvious de- 
 fects in the place where he is working, he is not required to make an exam- 
 ination for hidden defects^ Superior Coal & Mining Co. v. Kaiser, 229 IH. 
 29, 82 N. E. 239, 120 Am. St. Rep. 233. But even when the servant is en- 
 gaged in making safe a known dangerous place he does not assume the risk 
 of the master's negligence. Jacobson v. Hobart Iron Co., 103 Minn. 319 114 
 N. W. 951. 
 
 212 Jag. Torts, 1019, 1020, and cases there cited. Under the Employers' 
 Liability Act, state and federal, there is no assumption, of extraordinary 
 risks. See post, p. 634. 
 
§§ 272-275) master's liability for injuries to servant 619 
 
 has actual or constructive knowledge of the danger.^^ But if he 
 has such knowledge, and voluntarily undertakes the work, the risk 
 is assumed."' 
 
 Same — Exceptions to the Rtde 
 
 The principles under which a servant is held to assume the risks 
 of the employment do not apply in the following cases : "* (a) 
 Where, though he may know of the defect or danger, he does not 
 necessarily, and should not reasonably, know of or appreciate the 
 consequent risk."" (b) Where, without proper notice of increased 
 risk, he is put to a service outside of, and more dangerous than, 
 the employment for which he was engaged. ^° (c) Where the mas- 
 
 2 2 Richlands Iron Co. v. ElMns, 90 Va. 249, 17 S. E. 890; Schminkey v. 
 T. M. Sinclair & Co., 137 Iowa, 130, 114 N. W. 612 ; Place v. Grand Trunk E. 
 Co., so" Vt. 196, 67 Atl. 545. 
 
 23GofE V. Railway Co., 86 Wis. 237, 56 N. W. 465; McDuffee's Adm'x v. 
 Boston & M. It. E., 81 Vt. 52, 69 Atl. 124, 130 Am. St. Eep. 1019 ; Sullivan v. 
 Railroad Co., 161 Mass. 125, 36( N. E. 751 ; Kelley v. Railway Co., S5 Minn. 490, 
 29 N. W. 173 ; Texas & P. Ey. Co. v. Rogers, 57 Fed. 378, 6 C. C. A.. 403 ; 
 Wheeler v. Berry, 95 Mich. 250, 54 N. W. 876 ; Smith v. Railroad Co., 42 Minn. 
 87, 43 N. W. 968. 
 
 2* The following statoments are taken in substance from 2 Jag. Torts, 1021. 
 
 2 Coombs V. Cordage Co., 102 Mass. 572, 3 Am. Rep. 506; CHOCTAW, O. 
 & G. E. CO. V. JONES, 77 Ark. 367, 92 S. W. 244, 4 L. E. A. (N. S.) 837, 7 Ann. 
 Cas. 430, Cooley Cas. Persons and Domestic Eelations, 323; Mellor v. Man- 
 ufacturing Co., 150 Mass. 362, 23 N. E. 100, 5 I^. R. A. 792; Steen v. Eailroad 
 Co., 37 Minn. 310, 34 N. W. 113; Davidson v. Cornell, 132 N. Y. 228, 30 N. 
 E. 573. 
 
 28 Consolidated Coal Co. of St. Louis v. Haenni^ 48 111. App. 115, affirmed 
 146 111. 614, 35 N. E. 162 ; Union Pac. E. Co. v. Fort, 17 Wall. 553, 21 L. Ed. 
 7;S9; American Brake Shoe & Foundry Co. v. Hank, 129 111. App. 188; Oolitic 
 Stone Co. v. Eidge (Ind. App.) 80 N. E. 441; Jacksonville Electric Co. v. 
 Sloan, 52 Pla. 257, 42 South. 516. But "if a servant of full age and ordinary 
 intelligence, upon being required by his master to perform other duties more 
 dangerous and complicated than those embraced in his original hiring, un- 
 dertakes such duties knowing their dangerous character, although unwilling- 
 ly, and from fear of losing his employment, and he is injured, he cannot 
 maintain an action for the injury." Leary v. Eailroad Co., 139 Mass. 580, 2 
 N. E. 115, 52 Am. Rep. 733. He assumes the risk if he voluntarily engages 
 in a dangerous work outside the scop^ of his employment. National Fire 
 Proofing Co. v. Andrews, 158 Fed. 294, 85 C. C. A. 526; Pittsburgh, C. & St. 
 L. Ey. Co. V. Adams, 105 Ind. 151, 5 N. E. 187 ; Prentiss v. Kent Furniture 
 Mfg. Co., 63 Mich. 478, 30 N. W. 109. So, too, if he pursues a dangerous 
 method when a safe one is provided. Suttle v. Choctaw, O. & 6. R. Co., 14i 
 Fed. 668, 75 C. C. A. 470; Perry v. Michigan Alkali Co., 150 Mich. 537, 114 
 N. W. 315. EJven the specific command of his superior to pursue a danger- 
 ous method will not wholly excuse him. Chicaso Great Western By. Co. v. 
 Crotty, 141 Fed. 913, 73 C. C. A. 147, 4 U R. A. (N. S.) 832. But It may be 
 taken into consideration and weight as one of the attendant circumstances. 
 
620 MASTER AND SERVANT ' (Ch. 16 
 
 ter has promised to remove the peril,^'^ unless the danger is so im- 
 mediate and imminent that an ordinarily prudent man would not 
 continue in the service.^' (d) Even in the latter case, the risk 
 will not be assumed if the duty to continue in the dangerous service 
 is required or justified by some emergency approved by law.^' (e) 
 Where the servant does not voluntarily expose himself to the 
 peril.^" To these it may be added that the servant does not as- 
 
 Jensen v. Kyer, 101 Me. 106, 63 Atl. 389. If the superior assured him there 
 was no danger, the exception will apply. American Brake Shoe & Foundry 
 Co. V. Jankus, 121 111. App. 26T; Bush v. West Yellow Pine Co., 2 Ga. App. 
 295, 58 S. E. 529. A servant cannot be held to have assumed the risk at- 
 tendant upon working in a certain place to Which he was ordered to go by 
 his foreman, as the direction itself was an assurance on the part of the 
 employer, that the place was reasonably safe. Olson v. Seldovia Salmon 
 Co., 88 Wash. 225, 152 Pac. 1033. 
 
 27 Hough V. Railway Co., 100 U. S. 213, 25 L. Ed. 612 ; Chicago Drop Forge 
 & Foundry Co. v. Van Dam, 149 111. 337, 36 N. E. 1024; Greene v. Railway Co., 
 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785. There must be a clear prom- 
 ise to repair. A complaint and an acknowledgment of the defect are not 
 enough. Breig v. Railway Co., 98 Mich. 222, 57 N. W. 118; Chesapeake, O. & S. 
 W. R. Co. v. McDowell, 24 S. W. 607, 16 Ky. Law Rep. 1 ; Wilson v. Railroad 
 Co., 37 Minn. 326, 38 J. W. 908, 5 Am. St. Rep. 851 ; Mahan v. Glee, 87 Mich. 
 161, 49 N. W. 556; Viou v. Brooks-Scanlon Lumber Co., 99 Minn. 97, 108 N. W. 
 891, 9 Ann. Cas. 318 ; Monarch Mining & Development Co. v. De Voe, 36 Colo. 
 270, 85 Pac. 633. But see Kistner v. American Steel Foundries, 233 111. 35, 
 84 N. B. 44, when it was held that the rule which exempts an employ^ from 
 assuming the risk of injury because of defective machinery, whei^e a promise 
 to repair is made, applies only where particular skill and experience are 
 necessary to appreciate the defect and the danger, or where he can have but 
 little knowledge of the machinery, and does not apply where he is engaged 
 In ordinary labor or the tools used are of simple construction with which he is 
 as familiar as the master. The exemption of the servant continues only for a 
 reasonable time, however. Utah Consol. Min. Co. v. Paxton, 150 Fed. 114, 
 80 C. C. A. 68; Louisville Bolt & Iron Co. v. Hart, 122 Ky. 731, 92 S. W. 
 951 ; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S. W. 535. And 
 If he continues in the employment after a breach of the employer's promise 
 to repair he reassumes the risk. Andrecsik v. New Jersey Tube Co., 73 N. J. 
 Law, 664, 63 Atl. 719, 4 L. R. A. (N. S.) 913, 9 Ann. Cas. 1006. 
 
 2 8 Greene v. Railway Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785; 
 Russell V. TiUotson, 140 Mass. 201, 4 N. E. 231; Crosby v. Cuba R. Co. (C. 
 0.) 158 Fed. 144; Utah Consol. Minn. Co. v. Paxton, 150 Fed. 114, 80 C. C. 
 A. 68 ; Leeson v. Sawmill Phoenix, 41 Wash. 423, 83 Pac. 891. 
 
 29 2 Jag. Torts, 1027; Lalor v. Railway Co., 52 111. 401, 4 Am. Rep. 616; 
 Moore v. Railway Co., 85 Mo. 588; Strong v. Railway Co., 94 Iowa, 380, 62 
 N. W. 799. 
 
 8" 2 Jag. Torts, 1028. As where a seaman obeys the orders of his superior 
 officer, being required by statute to do so, Eldridge v. Steamship Co., 134 N. 
 T. 187, 32 N. E. 66; or where a convict works in a dangerous place, under 
 control and orders of a guard, Chattahoochee Brick Co. v. Braswell, 92 Ga. 
 631, 18 S. B. 1015 ; or where a servant, by the wrong of the master, is placed 
 
§§ 272-275) master's liability fob injuries to servant 621 
 
 sume the risk, where the negligence charged and proved is the dis- 
 regard of some duty imposed by statute."^ 
 
 Same — Negligence of Fellow Sevants 
 
 Among the .ordinary risks of the service which are assumed by a 
 servant, as between himself and his master, is the risk of negligence 
 upon the part of a fellow servant.^^ The leading case in this coun- 
 try is Farwell v. Boston & Worcester Railroad Corp.,^' decided in 
 the Supreme Court of Massachusetts in 1842, in which it was held 
 that a master is not liable to his servant for an injury due to the 
 negligence of a fellow servant engaged in the , same general em- 
 ployment, where he has used due diligence in the selection of such 
 fellow servant, and has furnished to his employe suitable means for 
 carrying on the business in which they are engaged.^* 
 
 in a position of imminent peril, and necessarily adopts a dangerous means of 
 escaping therefrom, Louisville & N. E. Co. v. Shirell's Adm'x, 18 S. W. 944, 
 13 Ky. Law Kep. 902. , 
 
 31 Steele v. Atlantic Coast Line E. Co., 103 S. C. 102, 87 S. B. 639 ; Dobra 
 V. L«high Valley Coal Co., 250 Pa. 313, 95 Atl. 465 ; Boone v. Lohr, 172 lowk, 
 440, 154 N. W. 591; Inland Steel Co. v. King, 184 Ind. 294, 110 N. E. 62; 
 Devine y. Chicago & C. E. R. Co., 168 111. App. 450 ; Wallin v. Arcadia & B. E. 
 Ey. Co., 172 Mich. 466, 138 N. W. 270; Wright v. Tazoo & M. V. R. Co. 
 (D. C.) 197 Fed. 94. 
 
 32 Westinghouse, Church, Kerr & Co. v. Oallaghan, 155 Fed. 397, 83 C. C. 
 A. 669, 19 L. Jt, A. (N. S.) 361; King v. Ford, 121 App. Div. 404, 106 N. Y. 
 Supp. 50; Haskell & Barker Car Co. v. Prezezdziankowski, 170 Ind. 1, 83 
 N. E. 626, 14 L. R. A. (N. S.) 972, 127 Am. St. Rep. 352; Pagan v. South- 
 ern Ry., 78 S. C. 413, 59 S. B. 32; Grandin v. Southern Pac. Co., 30 Utah, 360, 
 85 Pac. 357. He does not assume the risk arising from the carelessness of an 
 incompetent servant of v^hose incapability he is ignorant. Baldwin v. Ameri- 
 can Writing Paper Co., 196 Mass. 402, 82 N. B. 1. Nor of negligence of 
 such nature that it could not have been anticipated. Vindicator Consol. Gold 
 Min. Co. V. Pirsoorook, 36 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108. Under 
 statutes in some states the risk of negligence of a fellow servant is not. as- 
 sumed. Phinney v. Illinois Cent. R. Co., 122 Iowa, 488, 98 N. W. 358 ; Rhodes 
 V. Des Moines, I. F. & N. Ry. Co., 139 Iowa, 327, 115 N. W, 503; Malcom 
 T. Fuller, 152 Mass. 160, 25 N. E. 83 ; Graves v. Union Oil Co., 36 Cal. App. 
 766, 173 Pac. 618; Lusk v. Phelps (Okl.) 175 Pac. 756. Under the federal 
 Employers' Liability Act a railroad employg does not assume the risk of 
 injury from th^ negligence of a fellow servant. Portland Terminal Co. v. 
 Jarvis, 227 Fed. 8, 141 C. C. A. 562. See, also, Baltimore & O. R. Co. v. Bran- 
 son, 242 U. S. 623, 37 Sup. Ct. 244, 61 L. Ed. 534, reversing 128 Md. 678, 98 
 Atl. 225 ; Anest v. Columbia & P. S. R. Co., 89 Wash. 609, 154 Pac. 1100. 
 
 33 4 Mete. 49, 38 Am. Dec. 339. 
 
 3* See, generally, Johnson v. Boston & M. R. E., 78 Vt. 344, .62 Atl. 1021, 
 4 L. R. A. (N. S.) 856 ; Lapre v. Woronco St. Ry. Co., 196 Mass. 363, 82 N. 
 E. 9 ; Beleal v. Northern Pac. Ry. Co., 15 N. D. 318, 108 N. W. 33, 11 Ann. 
 Cas. 921; Fallon v. Mertz, 110 App. Div. 755, 97 N. Y. Supp. 417; LouisviUe 
 
622 MASTER AND SERVANT (Ch. 16 
 
 When we^ seek for a rule which will determine when the rela- 
 tionship of fellow servants exists, so as to exempt the master from 
 liability, we meet with a hopeless conflict in the decisions. It is 
 impossible to state any rule that will apply in all the states, or even 
 in any considerable number of them. There is no qiiestion in the 
 law of master and servant upon which there is greater conflict apd 
 confusion in the cases. Not even are the decisions of the same 
 court always consistent. 
 
 In order that the rule may apply, it is necessary that the serv- 
 ants shall have a common master.^^ It is not enough for the em- 
 ployment to be the same, if the masters are different.^' If a mas- 
 
 & N. B. Co. V. Wyatt's Adm'r, 93 S. W. 601, 29 Ky. Law Bep. .437 ; Chenall 
 V. Palmer Brick Co., 125 Ga. 671, 54 S. E. 663; McDonald v. California Tim- 
 ber Co., 7 Cal. App. 375, 94 Pac. 376 ; Ne"D0 Coal Co. v. Barnett, 167 Ky. 170, 
 180 S. "W. 70 ; Gallant v. Great Northern Paper Co., 114 Me. 208, 95 Atl. 
 889 ; Devonish v. Imperial Investing Corp. (Sup.) 155 N. T. Supp. 787 ; Cur- 
 tis Shumway v. WiUiams (Va.) 86 S. E. 848J Atoka Coal & Mining Co. v. Mil- 
 ler, 7 Ind. T. 104, 104 S. W. 555 ; McMahon v. IBangs, 5 Pennewill (Del.) 178, 
 
 62 Atl. 1098. If, however, the injury is due to the concurrent negligence- 
 of the master and a fellow servant, the master is not relieved from liability. 
 Haskell & Barker Car Co. V; Prezezdziankowski, 170 Ind. 1, 83 N. E. 626, 
 14 D. R. A. (N. S.) 972, 127 Am. St Rep. 352; Trickey v. Clark, 50 Or. 
 516, 93 Pac. 457; Gordon v. Chicago, R. I. & P. Ry. Co., 129 Iowa, 747, 106 
 N. "W. 177; Moore v. St. Louis Transit Co., 193 Mo. 411, 91 S. W. 1060; Root 
 V. Kansas City Southern Ry. Co., 195 Mo. 348, 92 S. "W. 621, 6 L. R. A. (N. 
 S.) 212; Conine v. Olympia Logging Co., 42 Wash. 50, 84 Pac. 407; Howard 
 V. Beldenville Lumber Co., 129 Wis. 98, 108 N. W. 48 ; Ryan v. Delaware & 
 Hudson Co., 114 App. Dly. 268, 99 N. Y. Supp. 794. This exception applies, 
 also when the negligence of the master is that 'of a vice principal. Roebling 
 Const. Co. V. Thompson, 229 111. 42, 82 N. E. 196 ; Chicago & E. I. R. Co. v. 
 Kimmel, 221 111. 547, 77 N. E. 936. 
 
 3 5 Westinghouse, Church, Kerr & Co. v. Callaghan, 155 Fed. 397, 83 C. C. 
 A. 669, 19 L, B. A. (N. S.) 361 ; Missouri, K. & T. Ry. Co. v. Hendricks, 49 
 Tex. Civ. App. 314, 108 S. W. 745; Fisher v. Minegeaux, 73 N. J. Law, 424,^ 
 
 63 Atl. 902. When the injured servant at the time of the injury occupied 
 the position of a mere licensee in a vehicle driven by another servant of 
 the same master, the relation of fellow servant did not exist. Pigeon v. 
 Lane, 80 Conn. 237, 67 Atl. 886, 11 Ann. Cas. 371. 
 
 SS2 Jag. Torts, 1033, 1034; Sullivan v. Railroad Co., 112 N. Y. 643, 20 N. 
 E. 569, 8 Am. St Rep. 793 ; " Powers v. Maine Central R, R., 114 Me. 198, 95 
 Atl. 879; Ellinghouse v. Ajax Live-Stock Co., 51 Mont. 275, 152 Pac. 481, 
 L. R. A. 1916D, 836 ; Kelly v. Tyra, 103 Minn. 176, 114 N. W. 750, 115 N. w! 
 636, 17 L. a. A. (N. S.) 334; Droge V. John N. Robins Co., 123 App. Div. 537, 
 108 N. Y. Supp. 457 ; Johnson v. Spear, 76 Mich. 130, 42 N. W. 1092, 15 Am. St 
 Rep. 298; Kelly v. Johnson, 128 Mass. 530, 35 Am. Rep. 398; Phillips v. Rail- 
 way Co., 64 Wis. 475, 25 N. W. 544. The rule, for Instance, does not apply to 
 servants of different masters working on the same building. Morgan v. Smith,. 
 159 Mass. 570, 35 N. E. 101; McDonough v. Pelham Hod Elevating Co., Ill 
 
§§ 272-275) master's liability foe injueibs to seevant 623 
 
 ter lends or hires his servant to another for a particular employ- 
 ment, he becomes, as to that employment, a servant of the person 
 to whom he is lent or hired, and a fellow servant of the servants of 
 such person.*^ 
 
 A person who, without any employment, voluntarily undertakes 
 to perform services for another, or to assist the servants of an- 
 other in the service of the master, either at the request or without 
 the request of such servants, who have no authority to employ. 
 other servants, stands in the relation of a servant, for the time 
 being, and is to be regarded as assuming all the risks incident to 
 the business, including the risk of injuries from the negligence of 
 fellow ^servants.^* 
 
 "The English courts determine the relationship of fellow serv- 
 ants by the test of common employment. * * * The American 
 cases incline to adopt, as the test of whether the plaintiff and an- 
 other servant are fellow servants of the same master, the doc- 
 trine of vice principal. A vice principal, as distinguished from a 
 fellow servant, is one to whom the master has delegated some 
 absolute duty owed by the master to his servants. For the neg- 
 ligence of 'such vice principal — at least, so long as he is engaged 
 in the performance of such duty — the master is responsible to other 
 
 App. Div. 585, 98 N. Y. Supp. 90; Bnrrill v. Eddy, 160 Mass. 19S, 35 N. E. 483. 
 So, servants of different railroad companies, operating connecting lines, are 
 not within the rule. Sullivan v. Eailroad Co., 112 N. Y. 643, 20 N. O. 569, 8 
 Am. St. Kep. 793; Jennings v. Philadelphia, B. & W. Uy. Co., 29 App. D. C. 219, 
 10 Ann. Gas. 761 ; 2 Jag. Torts, 1085, and cases there cited. So, also, the serv- 
 ants of a man are not the fellow servants of the servants of an independent con- 
 tractor employed by him on a piece of work. Coughtry v. Woolen Co., 56 
 ^. Y. 124, 15 Am. Eep. 387; Lake Superior Iron Co. v. Brickson, 39 Mich. 
 492, 33 Am. Rep. 423; Goodfellow v. Railroad Co., 106 Mass. 461; 2 Jag. 
 Torts, 1036, and cases cited. 
 
 37 Hasty V. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267; Cregan 
 V. Marston, 126 N. Y. 573, 27 N. E. 952, 22 Am. St. Rep. 854 ; Illinois Cent. 
 K. Co. V. Cox, 21 111. 20, 71 Am. Dec. 298. 
 
 38 There are some cases against this doctrine, or apparently so, It is sup- 
 ported, however, by the great weight of authority. Street Ry. Co. v. Bolton, 
 43 Ohio St. 224, 1 N. B. 333, 54 Am. Rep. 803; Jackson v. Southern Ry., 73 
 S. C. 557, 54 S. B. 231; Mayton v. Railway Co., 63 Tex. 77, 51 Am. Rep. 637; 
 New Orleans, J. & G. N. R. Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356; 
 Flower V. Railroad Co., 69 Pa. 210, 8 Am. Eep. 251 ; Osborne v. Railroad Co., 
 *8 Me. 49, 28 Am. Rep. 16. This doctrine applies to volunteers only. It does 
 not apply to passengers or shippers, or their servants, assisting tne employes 
 ■of a carrier to remove impediments to travel, or to expedite delivery of goods. 
 TVright V. London & N. W. li: Co., 1 Q. B. Div, 252 ; Street Ry. Co. v. Bolton, 
 
.624 MASTER AND SERVANT (Ch. 16 
 
 servants." '° It is the well established rule that the duty which a 
 master owes his servant to furnish safe premises and appliances, 
 and competent fellow servants, and to promulgate proper rules, 
 is a personal duty, of which he cannot relieve himself by delegating 
 it to an agent or employe.*" If he intrusts this duty to a servant, 
 he makes him, to that extent, a vice principal, and not a fellow 
 servant, of the other servants.*^ If the servant intrusted with such 
 duties is negligent in the performance of them, and injury there- 
 by results to another servant, the negligence is that of the master, 
 and he is liable.*^ Thus far the courts in this country agree. But 
 
 43 Ohio St. 224, 1 N. E. 333, 54 Am. Rep. 803; Eason v. Railway Co., 65 
 Tex. 977, ,57 Am. Rep. 606. But see Potter v. Faulkner, 1 /Best & S. 800. 
 
 39 2 Jag. Torts, 1036, 1037. And see Bailey, Mast. Liab. 226-393, where 
 the question is considered at length and the doctrine in each state set forth. 
 
 4 Parry Mfg. Co. v. Baton, 41 Ind. App. 81, 83 N. E. 510; Harper v. lola 
 Portland Cement Co., 76 Kan. 612, 93 Pac. 179, 93 Pac. 343 ; Kiley v. Rut- 
 land R. Co., 80 Vt. 536j 68 Atl. 713, 13 Ann. Cas. 269 ; Koemer v. St. Louis 
 Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292; National Fire 
 Proofing Co. v. Andrews, 158 Fed. 294, 85 C. C. A. 526; Gussart v. Green- 
 leaf Stone Co., 134 Wis. 418, 114 N. W. 799; Kane v. Babcock & Wilcox 
 Co., 75 N. J. Law, 698, 67 Atl. 1014; Schminkey v. T. M. Sinclair & Co., 137 
 Iowa, 130, 114 N. W. 612; Hatch v. Pike Mfg. Co., 73 N. H. 521, 63 Atl. 306; 
 Missouri, K. & T. Ry. Co. v. Wise (Tex. Civ. App.) 108 S. W. 465; El Paso 
 & S. W. Ry. Co. V. Smith, 50 Tex. Civ. App. 10, 108 S.W. 988. See, also, 
 ante, p. 615. . , 
 
 41 Harper v. Tola Portland Cement Co., 76 Kan. 612, 93 Pac. 179, 93 Pac. 
 343; Bailey v. Swallow, 98 Minn. 104, 107 N. W. 727; Koemer v. St. Louis 
 Car Co., 209 Mo. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292 ; Sandusky Port- 
 land Cement Co. v. Rice, 40 Ind. App. 726, 82 N. B. 1007; Donk Bros. Coal 
 & Coke Co. v. Thil, 128 111. App. 249, affirmed 228 111. 233, 81 'N. B. 857; 
 Illinois St^el Co. v. Ziemkowskl, 220 111. 324, 77 N. B. 190, 4 L. R. A. (N. 
 S.) 1161; Cleveland, C, C. & St. L. Ry. Co. v. Austin, 127 111. App. 281; 
 Lammi v. Milford Pink Granite Quarries, 196 Mass. 336, 82 N. B. 26; El 
 Paso c& S. W. Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 988; Mis- 
 souri, K. & T. R. Co. V. Wise (Tex. Civ. App.) 106 S. W. 465; Clegg v. Sea- 
 board Steel Casting Co.", 34 Pa. Super. Ct. 63. 
 
 42 Donahue v. C. H. Buck & Co., 197 Mass. 550, 83 N. E. 1090, 18 L. R. 
 
 A. (N, S.) 476; Lammi v. Milford Pink Granite Quarries, 196 Mass. 336, 
 82 N. E. 26; Byrne V. Learnard, 191 Mass. 269, 77 N. E. 316; Sampson v. 
 Holbrook, 192 Mass. 421, 78 N. B. 127; Parry Mfg. Co. v. Eaton, 41 Ind! 
 App. 81, 83 H. E. &10; Sandusky Portland Cement Co. v. Rice, 40 Ind. App. 
 726, 82 N. E. 1007; Harper v. Ida Portland Cement Co., 76 Kan. 612, 93 
 Pac. 179, 93 Pac. 343 ; Southern R. Co. v. Rutledge, 4 Ga. App. 80,, 60 S. 
 
 B. 1011; Ongaro v. Twohy, 49 Wash. 93, 94 Pac. 916; Stecher Cooperage 
 Works V. Steadman, 78 Ark. 381, 94 S. W. 41; Archer-Foster Const. Co. v. 
 Vaughn, 79 Ark. 20, 94 S. W. 717. But the master is not responsible for 
 an error in judgment or even negligence on the part of the servant in carry- 
 ing out details which the master could delegate. Vogel v. American Bridge 
 
 / 
 
§§ 272-275) master's liability foe injuries to servant 625 
 
 when we go a step further we meet with a conflict in the decisions 
 of the various courts. 
 
 In New York this doctrine is made the test of the relation of 
 fellow servant, and the rank or grade of the negligent servant is 
 immaterial. It is said in a leading New York case : "The liability 
 of the master does not depend upon the grade or rank of the em- 
 ploye whose negligence causes the injury. A superintendent of a 
 factory, although having power to employ men, or represent the 
 master in other respects, is, in the management of the machinery, 
 a fellow servant of the other operatives. On the same principle, 
 however low the grade or rank of the employe, the master is lia- 
 ble for injuries caused by him to another servant, if they result 
 from the omission of some duty of the master, which he has con- 
 fided to such inferior employe. * * * The liability of the mas- 
 ter is thus made to depend upon the character of the act in the per- 
 formance of which the injury arises, without regard to the rank of 
 the employe performing it. If it is one pertaining to the duty the 
 master owes to his servants, he is responsible to them for the man- 
 ner of its performance. The converse of the proposition neces- 
 sarily follows. If the act is one which pertains only to the duty of 
 an operative, the employe performing it is a mere servant, and the' 
 master, although liable to strangers, is not liable to a fellow serv- 
 ant, for its improper performance." *' 
 
 Co., 180 K. Y. 373, T3 N. E. 1, 70 L. E. A. 725; Agresta v. Stevenson, 112 
 App. Div. 367, 98 N. Y. Supp. 594. 
 
 *" Crispin v. Babbitt, 81 N. Y. 516, 37 Am. Rep. 521. And see MeCosker v. 
 Railroad Co., 84 N. Y. 77; Slater v. Jewett, 85 N. Y. 74, 39 Am. Rep. 627; 
 Brick V. Railroad Co., 98 N. Y. 211 ; Finnigan v. New York Contracting Co., 
 122 App. Div. 712, 107 N. Y. Supp. 855 ; Gallagher v. Neveman, 190 N. Y. 444, 
 83 N. B. 480, 16 L. R. A. (N. S.) 146 ; Droge v. John N. Robins Co., 123 App. 
 Div. 537, 108 N. Y. Supp. 457 ; QUINLAN v. LACKAWANNA STEEL CO., 191 
 N. Y. 329, 84 N. E. 73, Cooley Cas. Persons and Domestic Relations, 336 ; Ozo- 
 gar v. Pierce, Butler & Pierce Mfg. Co., 55 Misc. Rep. 579, 105 N. Y. Supp. 1087 ; 
 Castner Electrolytic Alkali Co. v. Davies, 154 Fed. 938, 83 C. O. A. 510. See, 
 also, Chicago, I. & L. Ry. Co. v. Barker, 169 Ind. 670, 83 N. E. 369, 17 L. 
 R. A. (N. S.) 542, 14 Ann. Cas. 375; Tilley v. Rockingham County Light &r 
 Power Co., 74 N. H. 316, 67 Atl. 946 ; Pagan v. Southern Ry., 78 S. C. 413, 
 59 S. E. 32, 13 Ann. Cas. 1105; Rigsby v. Oil Well Supply Co., 115 Mo. App. 
 297, 91 S. W. 460 ; Doerr v. Daily News Pub. Co., 97 Minn. 248, 106 N. W. 
 1044 ; Chesson v. Walker, 146 N. C. 511, 60 S. B. 422. In Missouri, K. & T. 
 Ry. Co. V. Wise (Tex. Civ. App.) 106 S. W. 465, it was held that employes 
 charged with the duty of keeping a place to work and machinery in a 
 safe condition, and of inspecting the same, are vice principals of the em- 
 ployer, regardless of their rank. See, also, New England Telephone & Tele- 
 
 TIFF.P.& D.Rel.(3d Ed.)— 40 
 
t 
 
 C26 MASTER AND SERVANT (Ch. 16 
 
 This doctrine is recognized, with some variations, in most states. 
 All the courts agree to so much of the doctrine as holds that a 
 master who intrusts a personal duty to a servant makes that serv- 
 ant, pro hac vice, a vice principal, and that he is liable to the other 
 servants for his negligence in the performance of those duties.** 
 
 graph Co. v. Butler, 156 Fed. 321, 84 C. C. A. ?17; Williamson Iron Co. v. 
 McQueen, 144 Ala. 265, 40 South. 306; Koerner v. St. Louis Car Co., 209 
 Mo. 141, lOT S. W. 481, 17 L. R. A. (N. S.) 292. Whether employes are 
 fellow servants does not depend on the rank or grade of the negligent serv- 
 ant, but on the nature and character of the act in the performance of which 
 the injury occurred. McKillop v. Superior Shipbuilding Co., 143 Wis. 454, 
 127 N. W. 1053. But see Cody v. Longyear, 103 Minn. 116, 114 N. W. 735, 
 where it was held that if a vice principal orders a workman into a place of 
 <lai)ger, and then, without warning, starts machinery by an act which would 
 have been performed by him in the capacity of a fellow sen^ant, he will be 
 held to have acted as a vice principal in starting the machine, as well as 
 in the previous act which placed the employ^ in a dangerous situation. 
 
 <4 See the dictum in Baltimore & O. K. Co. v. Baugh, 149 U. S. 368, 13 
 Sup. Ct. 914, 37 L. Ed. 772. See. also, Pre.ssley v. Incorporated Tovm of 
 Salliblaw. 54 GUI. 747, 154 Pac. 6(30, and the cases cited hereafter in this 
 note. Employes intrusted with furnishing safe premises and machinery and 
 appliances are not fellow servants with those who use them, so as to 
 exempt the master from liability for their negligence; but in respect to 
 tJiiS) duty they stand in the place of the master, and are vice principals. 
 Lewis V. Seifert, 116 Pa. 628, 11 Atl. 514, 2 Am. St. Rep. 631 ; Clegg v. Sea- 
 board Steel Casting Co., 34 Pa. Super. Ct. 63; Thurber Brick Co. v. Matth- 
 ews (Tex. Civ. App.) 180 S. W. 1189; Bailey v. Swallow, 98 Minn. 104, 
 107 N. W. 727; Bensing v. Steinway, 101 N. Y. 547, 5 N. E. 449; Shanny 
 V. Androscoggin Mills, 66 Me. 420, 426; MeElligott v. Randolph, 61 Conn. 
 157, 22 Atl. 1094, 29 Am. St. Rep. 181 ; Brown v. Gilchrist, 80 Mich. 56, 45 
 N. W. 82, 20 Am. St. Rep. 496; Cadden v. American Steel-Barge Co., 88 
 Wis. 409, 60 N. W. 800; Lawless v. Railroad Co., 136 Mass. 1; Houston v. 
 Brush, 66 Vt. 331, 29 Atl. 380; Chicago, B. & Q. R. Co. v. Avery, 109 lU. 
 315 ; Nixon v. Lead Co., 102 Oal. 458, 36 Pac. 803 ; Krueger v. Railway Co., 
 Ill Ind. 51, 11 N. E. 957. Most courts apply the same rule to employes 
 intrusted with repairs of premises or appliances. Fuller v. Jewett, 80 N. Y. 
 46, 36 Am. Rep. 575 ; Corcoran v. Holbrook, 59 N. T. 517, 17 Am. Rep. 869 ; 
 Shanny v. Androscoggin Mills, supra ; Roux v. Lumber Co., 94 Mich. 607, 54 
 N. W. 492; Cincinnati, H. & D. R. Co. v. McMuJlen, 117 Ind. 439, 20 N. E. 
 287, 10 Am. St. Rep. 67 ; Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 
 Sup. Ct. 590, 29 L. Ed. 755; Lewis v. Railroad Co., 59 Mo. 495, 21 Am. Rep. 
 385 ; Tierney v. Railway Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35 ; 
 Cah'o V. Railroad Co., 23 S. C. ^26, 55 Am. Rep. 28; Davis v. Railroad Co., 
 55 Vt. 84, 45 Am. Rep. 590; Moon's Adm'r v. Railroad Co., 78 Va. 745, 49 
 Am. Rep. 401. The Massachusetts court holds that employes intrusted with 
 ordinary repairsi are fellow servants of the employes who use the premises 
 or appliances. Johnson v. Towboat Co., 135 Mass. 211, 46 Am. Rep. 458; 
 McGee v. Cordage Co., 139 Mass. 445, 1 N. E. 745; Moynlhan v. Hills Co.' 
 146 Mass. 586, 16 N. E. 574, 4 Am. St. R«p. 348; Mellen v. Thomas Wilson 
 Sons & Co., 159 Mass. 88, 34 N. E. 96. But even in Massachusetts the 
 master Is required to use reasonable care and supervision to see that repairs 
 
§§ 272-275) master's liabilitx foe injuries to servant 627 
 
 Most courts also hold that if the duty which the master delegates 
 to a servant is not one of his own personal duties, but a duty which 
 
 are made when needed by those to whom he intrusts the duty. Bogers v. 
 Manufacturing Co., 144 Mass. 204, 11 N. E. 77, 59 Am. Rep. 68; Babcock v. 
 Railway Co., 150 Mass. 470, 23 N. E. 325. As to concurrent negligence of 
 master and fellow servant, see Union Cotton Mills v. Harris, 144 Ga. 716, 87 
 ». E. 1029; Budde v. United States Incandescent Lamp Co., 193 Mo. App. 
 154, 181 S. W. 1034. An emploj-6 to whom the master Intrusts the duty of 
 determining where the other employes are to work is a vice principal, and 
 not tlieir fellow servant in the performance of this duty, and the master 
 is liable to the otlier servants for the negligence of suph servant in not 
 keeping the premises In a safe condition. Cole Bros. v. "Wood, 11 Ind. App. 
 37, 36 N. E. 1074. So, also, it is held in some states, perhaps in most, that 
 the duty of Inspection, like that of repair, is one which the masteri cannot 
 s delegate so as to be exempt from liability for the negligence of the employe 
 to whom he Intrusts it; and that an inspector of premises, machinery, and 
 appliances is not a fellow sei-vant with those who use them. Northern Pac. 
 R. Co. V. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Cincinnati, H. 
 & D. R. Co. V. McMuUen, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67; 
 Kiley v. Rutland R. Co., 80 A''t. 536, 68 Atl. 713, 13 Ann. Cas. 269; Fay v. 
 Railway Co., 30 Minn. 231, 15 N. W. 241; Tierney v. Railway Co., 33 Minn. 
 311, 23 N. W. 229, 53 Am. Rep. 35; Macy v. Railroad Co., 35 Minn. 200, 28 
 N. W. 249. Thus in Cincinnati Traction Co. v. I'lerman, 4 Ohio ApP- 8. it 
 was held that an inspector for a street railway cortipany is not the fellow 
 servant of a motorman. In other states it is held that a master performs 
 his duty when he furnishes a competent inspector, and that the negligence 
 of the inspector causing injury to another employg is the negligence of a 
 fellow servant. Mackin v. Boston & A. R. R., 135 Mass. 201, 46 Am. Rep. 
 456 ; Smith v. Potter, 46 Mich. 258, 9 N. Wl 273, 41 Am. Rep. 161 ; Dewey 
 v. Detroit, G. H. & M. Ry. Co., 97 Mich. 329. 52 N.' W. 942, 56 N. W. 756, 16 
 L. R. A. 342, 22 L. R. A. 292, 37 Am. St. Rep. 348. But even when the 
 master employs an Inspector, if the servants are to test the machinery be- 
 fore using, that does not make the servant an inspector, so as to render the 
 master liable as for the act of a vice principal, when the servant has been 
 negligent. Fogarty v. Southern Pac. Co., 151 Oal., 785, 91 Pac. 650. An 
 employ? intrusted with tlie duty of employing competent servants, and a 
 sufficient number of them, is, as to such duty, a vice principal, and not a 
 felldw servant of the other empIoySs. l.aning v. Railroad Co., 49 N. T. 521, 
 10 Am. Rep. 417; Flike v. Railroad Co., 53 N. T. 549, 13 Am. Rep. 545; Core 
 V. Railroad Co., 38 W. Va. 456, 18 S. B. 596 ; Cheeney v. Steamship Co., 92 
 Oa. 726, 19 S. E. 33, 44 Am. St. Rep. 113 ; dictum in Quincy Min. Co. v. Kitts, 
 42 Mich. 34, 3 N. W. 240. Thus, where an engineer, having authority, places 
 an inexperienced and incompetent fireman in charge of an engine, the com- 
 pany is liable for unavoidable injuries that result to other employes by such 
 fireman's unskillful manageiiient of the engine, for the reason that it is a 
 breach of the duty Ihe company owes to its employes to exercise ordinary 
 care in i)roviding and retaining competent servants. Core v. Railroad Co., 
 38 W. Va. 456, 18 S. E. 596. The duty to promulgate necessary and proper 
 rules, as to promulgate time-tables of a railroad, is the master's duty; and, 
 if he delesates it to a ser\ant, the latter is a vice principal in respect to such 
 duty. Slater v. Jewett, 85 N. Y. 61, 39 Am. Rep. 627; Lewis v. Seifert, 116 
 
G28 MASTER AND SERVANT (Ch. 16 
 
 may be so delegated, he is not to be held liable to his other serv- 
 ants for that servant's negligence in performing it; for as to such 
 a duty the servant is to be regarded as their fellow servant, what- 
 ever may have been his relative grade or rank.*' The difficulty, 
 
 ta. 628, 11 Atl. 514, 2 Am. St. Rep. 631. In the latter case the employe was 
 a train dispatcher, vested with authority to, change the schedule time, and 
 make new time-tables; and he was held a vice principal as to train hands. 
 And in a late New York case it was held that the train dispatcher of a divi- 
 sion, who, in directing the movements of two trains, which arc being run 
 entirely on special orders, makes a mistake, whereby the trains collide, is a 
 vice principal as to the employes on the trains. Hankins v. Railroad Co., 142 
 N. Y. 416, 37 N. E. 466, 25 L. R. A. 396, 40 Am. St. Rep. 616. And see to the 
 same effect, Uttle Rock & M. R. Co. v. Barry, 58 Ark. 198, 23 S. W. 1097, 25 
 L. E. A. 386 ; Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502, 7 L. R. A. 
 500 ; ikrrigan v. Railroad Co., 52 Conn. 285, 52 Am. Rep. 590. Contra, Nor- 
 folk & W'. R. Co. v. Hoover, 79 Md. 253, 29 Atl. 994, 25 L. R. A. 710, 47 Am. 
 St. Rep. 392; Robertson v. Railroad Co., 78 Ind. 77, 41 Am. Rep. 552. So, 
 too, it has been held in Choctaw, O. & G. R. Co. v. Doughty, 77 Ark. 1, 91 
 S. W. 768, that a train dispatcher, who governs the movement of trains 
 and Issues running orders, and the conductor, under whose direction the 
 train is actually run, are not fellow servants of a fireman on the train. 
 
 •15 A railroad company njay delegate the duty of running its trains, and, 
 under the doctrine above stated, it will not be liable to a brakeman or fireman, 
 or to any other employ? riding or working on a train, for the negligence 
 of the conductor or engineer. They are all fellow servants. Slater v. 
 Jewett, S5 N. Y. 61, 89 Am. Rep. 627 ; ' Russell <v. RallroaTi Co., 17 N. Y; 134 ; 
 Hayes v. Railroad Corj)., 3 Cush. (Mass.) 270; Capper v. Railroad Co., 103 
 Ind. 305, 2 N. E. 749 ; Thayer v. Railroad Co., 22 Ind. 26, 85 Am. Dec. 409 ; 
 Evansville & R; R. Co. v. Henderson, 134 Ind. 636, 33 N. E. 1021 ; Ellington v. 
 Lumber Co., 93 Ga. 53, 19 S. B. 21 ; Howland v. Railway Co., 54 Wis. 226, 11 N. 
 W. 529; Smith v. Potter, 46 Mich. 258, 9 N. W. 273, 41 Am. Rep. 161; 
 (Nashville, C. & St. L. R. Co. v. Wheless, 10 l.ea (Tenn.) 741, 43 Am. Rep. 
 317. And see Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 
 914, 37 L. Ed. 772. But compare this case with Chicago, M. & St. P. Ey. 
 Co. V. Ross, 112 U. S. 377, 5 Sup. Ct. 184, 28i L. Ed. 787. And see Atlantic 
 Coast Mne R. Cn. v. Beazley, 54 Fla. 311, 45 South. 761, holding that a con- 
 ductor is vice principal in his relation to a brakeman on the same train, 
 to the same effect, see Southern Indiana Ry. Co. v. Baker, 37 Ind. App. 405, 
 77 N. E. 64; AVilson v. Southern Ry., 73 S. C. 481, 53 S. E. 968. See, also, 
 Nashville C. & St. L. Ey. v. Kallock, 140 Tenn. 391, 204 S. W. 1157, holding 
 that a boiler maker and his assistant are fellow sei-vants. See, however, the 
 following case's in which the employes were held fellow servants: Mate 
 and common sailor upon a merchant vessel, Benson v. Goodwin, 147 Mass. 
 237, 17 N. E. 517 ; foreman or other superior employs and laborer imder him, 
 Duffy V. Upton, 113 Mass. 544; Moody v. Manufacturing Co., 159 Mass. 70, 
 34 N. E. 185, as Am. St. Rep. 396 ; Gonsior v. Railway Co., 36 Minn. 385, 31 
 N. W. 515; Olson v. Railway Co., 38 Minn. 1 117, 35 N. W. 866; Brown v. 
 Railroad Co., 27 Minn. 162, 6 N. W. 484, 38 Am. Rep. 285; Morovick v. In- 
 land Steel Co., 131 Minn. 53, 154 N. W. 735 ; Reld v. Medley's Adm'r, 118 
 Va. 402, 87 S. E. 616 ; Hanna v. Granger, 18 R. I. 507, 28 Ati. 659 ; Di Mkr- 
 
|§ 272-275) master's liability fok injuries to servant 629 
 
 as is shown by the illustrations given in the note, is in determining, 
 in the application of this doctrine, whether the duty in the perform- 
 ance of which the servant was negligent was or was not one which 
 the mast,er could delegate. 
 
 If the master intrusts the entire conduct and control of his busi- 
 ness, or a part of it, to an employe, the latter stands in the master's 
 place, and is not 'to be regarded as a fellow servant of the other em- 
 ployes. "Whenever the business conducted by the person selected 
 by the master is such that the person selected is invested with full 
 control (subject to no one's supervision, except the master's) over 
 the action of the employes engaged in carrying on a particular 
 branch of the master's business, and, acting upon his own discre- 
 tion, according to general instructipns laid down for his g'uidance, 
 it is his province to direct, and the duty of the employes to obey, 
 then he stands in the place of the master, and is not a fellow servant 
 with those whom he controls." *° Such an employe, it has been 
 said, is not a servant at all, but an agent. 
 
 In a few states the New York doctrine is not recognized, but, on 
 the contrary, the rank or grade of the negligent servant, and hot 
 merely the scope of his dutie's and nature' of the act or omission, 
 
 •cho V. Iron Foundry, 18 R. I. 514, 27 Atl. 328, 28 Atl. 661 ; Lawler v. Rail- 
 road Co., 62 Me. 463, 16 Am. Kep. 492; Stutz v. Armour, 84 Wis. 623, 54 
 N. W. 1000; Hoth v. Peters, 55 Wis. 40§, 13 K. W. 219; Johnson v. \yater 
 Co., 77 Wis. 51, 45 N. W. 807; Pescliel v. Railway Co., 62 Wis. 338, 21 N. 
 W. 269; Dube v. City of Lewiston, 83 Me. 211, 22 Atl. 112; Oullen v. Nor- 
 ton, 126 N. Y. 1, 26 N. E. 905; Keystone Bridge Co. v. Newberry, 96 Pa. 
 240, 42 Am. Rep. 543; Peterson v. Mining Co., 50 Iowa, 674, 32 Am. Rep. 
 143; Doerr v. Daily News Pub. Co., 97 Minn. 248, 106 N. W. 1044 ; American 
 Bridge Co. v. Seeds, 144 Fed. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041 ; 
 Westinghouse, Church, Kerr & Co. v. Callaghan, 155 Fed. 397, 83 C. C. A. 
 660, 19 I* R. A. (N. S.) .361. That a negligent servant is a foreman does 
 not change tlie fellow servant rule, unless he is at the time representing the 
 master. Gallant v. Great Northern Paper Co., 114 Me. 208, 95 Atl. 889. 
 
 *6 Hunn V. Railroad Co., 78 Mich. 513, 44 N. W. 502, 7 L. R. A. 500. And 
 see Corcoran v. Holbrook, 59 N. Y. 517, 17 Am. Rep. 369; Sheehan v. Rail- 
 road Co., 91 N. Y. 3.32; Pantzar v. Mining Co., 99 N. Y. 868, Z N. E. 24; 
 Taylor v. Railway Co., 121 Ind; 124, 22 N. B. 876, 6 L. R. A. 584, 16 Am. St. 
 Rep. 372; Mitchell v. Robinson, SO Ind. 281, 41 Am. Rep. 812; Lewis \. 
 Seifert, 116 Pa. 628, 11 Atl. 514, 2 Am., St. Rep. 631; MuUan v. Steamship 
 Co., 78 Pa, 25, 21 Am. Rep. 2 ; Chicago Anderson Pressed-Brick Co. v. Sobko- 
 wiak, 148 111. 573, 36 N. E. 572 ; Brothers v. Cartter, 52 Mo. 373, 14 Am. Rep. 
 424; Dobbin v. Railroad Co., 81 N. C. 446, 31 Am. Rep; 512; Hamann v. 
 Milwaukee Bridge Co., 127 Wis. 550, 106 N. W. 1081, -7 Ann. Cas. 458; Penn- 
 sylvania R. Co. V. Kartell, 157 Fed. 667, 89 C. C. A. 335; Henrietta Coal Co. 
 V. Martin, 221 111. 460, 77 N. E. 902, affirming 122 111. App. 354; Moore v. 
 King Mfg. Co., 124 Ga. 576, 53 S. E. 107, 
 
630 MASTBK AND SERVANT (Ch. IS- 
 
 is considered, in determining his character. It is held in these 
 states that if one servant is placed in control of the others, as a 
 foreman, for instance, he does not occupy the relation of their 
 fellow servant. "No service is common," said the Ohio Court in 
 applying this doctrine, "that does not admit a common participa- 
 tion, and no servants are fellow sealants when one is placed in con- 
 trol over the other."*' The Supreme Court of the United States- 
 
 •17 Cleveland, C. & O. R. Co. v. Keai-y, 3 Ohio St. 201. The leading case 
 holding this doctrine is Little Miami R. Co. v. Stevens, 20 Ohio, 415. Berea 
 Stone Cq. v. Kraft, 31 Ohio St. 291, 27 Am. Rep. 510; Louisville & N. R. 
 Co. V. Collins, 2 Duv. (Ky.) 114, 87 Am. Dec. 486; Newport News & M. Val. 
 Co. V. Dentzel's Adm'r, 91 Ky. 42, 14 S. W. 958; JVTiUer v. Railwajr Co., 
 109 Mo; 350, 19 S. W. 58, 32 Am. St. Rep. 673; Illinois Cent. K. Co. v.. 
 Spence, 93 Tenn. 173, 33 S. W. 211, 42 Am. St. Rep. 907; Moon's Adm'r 
 V. Railroad Co., 78 Va. 745,' 49 Am. Rep. 401 ; Chicago, St P., M. & O. Ry. 
 Co. V. Lundstrom, 16 Neb. 254, 20 N. Wl 198, 49 Am. Rep. 718. And see Miad- 
 den's Adm'r v. Railway Co., 28 W. Va. 610, 57 Am. Rep. 695. Thus, accord- 
 ing to this doctrine, it is held that a foreman in charge of hands engaged in 
 a particular piece of work is not their fellow servant in respect to such 
 work. Lake Shore & M. S. Ry. Co. v. Lavalley, 36 Ohio St. 221; Miller v. 
 Railway Co., 109 Mo. 350, 19 S. W. 58, 32 Am. St. Rep. 673 ; Chicago, St. P., 
 M. & O. Ry. Co. v. Lundstrom, 16 Neb. 254, 20 N. W. 198, 49 Am. Rep. 718. And 
 it is held that a conductor having control of a train is not a fellow servant of 
 the brakeman, fireman, or engineer. Lake Shore & M. S. Ry. Co. v. Spangler, 
 44 Ohio St. 471, 8 N. B. 467, 58 Am. Rep. 833; little Miami R. Co. v. 
 Stevens, 20 Ohio, 415; Cleveland, C. & O. R. Co. v. Keary, 3 Ohio St. 201; 
 Haney v. Railway Co., 38 W. Va. 570, 18 S. E. 748; Newport News & M. 
 Val. Co. v. Dentzel's Adm'r, 91 Ky. 42, 14 S. W. 958 ; Moon's Adm'r v. Rail- 
 road Co., 78 Va. 745. 49 Am. Rep. 401 ; Miller v. Railway Co., 109 Mo. 350, 
 19 S. W. 58, 32 Am. St Rep. 67.'? ; Illinois Cent. R. Co, v. Spence, 93 Tenn. 
 173, 23 S. W. 211, 42 Am. St Rep. 907 ; Atlantic Coast Line R. Co. v. Beazley, 
 54 Fla. 311, 45 South. 761. An engineer isi vice principal, and not fellow 
 sei-vant, of his fireman. Pagan v. Southern Ry., 78 S. O. 418, 59 S. B. 32, 13 
 Ann. Cfis. 1105. The fact that the foreman or superintendent sometimes acts 
 in the capac-ity of a colaborer does not affect his status as a vice principal. 
 Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 111. 573, 36 N. E. 572 ; 
 Chicago & E. I. R. Co. v. Kimmel, 221 111. 547, 77 N. E, 936 ; MARQUETTE 
 CEMENT MFG. CO. v. WILLIAMS, 230 111. 26, 82 N. E. 424 ; Cooley Cas. Per- 
 sons and Domestic Relations, 335 ; Hollweg v. Bell Telephone Co., 195 Mo. 149,^ 
 93 S. W. 262. But see Whiters v. Mlallory S. S. Co., 23 Ga. App. 47, 97 S.- B. 
 453, holding that, when a vice principal enters upon duties relating solely 
 to the work of a servant, he becomes a fellow servant. On the otlier hand,, 
 where the master places a ser^'ant under the command of another servant 
 of the same grade, such other servant is a vice principal. American Car & 
 Foundry Co. v. Adams, 178 Ind. 607, 97 N. E. 993. So where a general fore- 
 man told a servant to do what another servant should tell him to do, and 
 then told such other servant to tell plaintifC what to do, such servant be- 
 came a vice principal. Bradshaw v. Standard Oil Co., 199 Mo. App. 688, 
 204 S. W. 831. And see Day v. Chicago, M. & St P. Ry. Co., 284 111. 534, 120- 
 N. E. 480. afllrming 208 111. App. 351. 
 
§§ 272-275) master's liability foe injuries to servant 631 
 
 seems to have laid down this doctrine, in the Ross Case, decided in 
 1884, and its decision was so construed by the other courts ; ** but 
 in the Baugh Case, decided in 1893, the contrary doctrine was rec- 
 ognized and affirmed.*" 
 
 In England, and in most of the states in this country, servants 
 of the same master, engaged in carrying forward the same common 
 enterprise, are regarded as fellow servants, within the meaning of 
 the general rule, although they may be in different and widely- 
 separated departments. The rule "is not confined to the case of 
 two servants working in company, or having opportunity to con- 
 trol or influence the conduct of each other, but extends to every case 
 in which the two, deriving their authority and their compensation 
 from the same source, are engaged in the same business, though 
 in different departments of duty." ^^ In Illinois, and several of the 
 
 *8 Chicago, M. & St. P. Ey. Co. v. Ross, 112 U. S. 3T7, 5 Sup. Ct. 184, 28 
 I/. Ed. 787. In this case, approving the Ohio and Kentucky decisions, it was 
 held that the conductor and engineer of a railroad train were not fellow 
 servants. Mr. Justice Field delivered the opinion in this case. Mr. Justice 
 Bradley, Mr. Justice Matthews, Mr. Justice Gray, and Mr. Justice Blatchford 
 dissented. 
 
 49 Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct 914, 37 L. 
 Ed. 772. In this case it was held, 'purporting to distinguish the Boss Case, 
 supra, that the engineer and iireman of a train were fellow servants, though 
 the rules of the company declared that the engineer, under the circumstances 
 should also be regarded as a ©inductor. Mr. Justice Brewer delivered the 
 opinion in this case. Jlr. Chief Justice Fuller and Mr. Justice Field dis- 
 sented. 
 
 ""Holden v. Fitchburg R. ,Co., 129 Mass. 268, 37 Am. Rep. 343; Farwell 
 v. Boston & W. R. Corp., 4 Mete. (Mass.) 49, 38 Am. Dec. 339; Adams v.' 
 Iron Cliffs Go., 78 Mich. 288, 44 N. W. 270, 18 Am. St. Rep. 441; Falla v. 
 Pine Mountain Granite Co., 22 Ga. App. 651, 97 S. E. 114; Lawler v. An- 
 droscoggin R. Co., 62 -Me. 463, 16 Am. Rep. 492 ; Doughty v. Penobscot Log 
 Driving Co., 76 Me. 145 ; Rose v. Boston & A. R. Co., 58 N. Y. 217 ; Jenkins 
 V. Richmond & D. R. Co., 39 S. C. 507, 18 S. E. 182, 39 Am St. Rep. 750; 
 Neal V. Northern. Pac. R. Co., 57 Minn. 365, 59 N. W. 312; Westinghouse, 
 Church, .Kerr & Co. v. Callaghan, 155 Fed. 397, 83 C. C. A. 669, 19 L,. R. A. 
 (N. S.) 361 ; Vilter Mfg. Co. v. Otte, 157 Fed. 230, 84 O. C. A. 673 ; Johnson 
 V. Boston & M. R. R., 78 Vt. .344, 62 Atl. 1021, 4 L. R. A. (N. S.) 856 ; Southern 
 Ry. Co. V. Smith, 107 Va. 553, 59 S. E. 372; "Wabash R. Co. v. Hassett, 170 
 Ind. 370, 83 N. B. 705; Chicago, I. & L. Ry. Go. v. Barker, 169 Ind. 670, 83 
 N. E. 369, 17 L. R. A. (N. S.) 542, 14 Ann. Cas. 375; Church v. Winchester 
 Repeating Arms Co., 78 Conn. 720, 63 Atl. 510; Kenefick-Hammond Co. v. 
 Rohr, 77 Ark. 290, 91 S. AV^ 179 ; Missouri, K. & T. Ry. Co. v. Hendricks, 49 
 Tex. Civ. App.. 314, 108 S. W. 745. Accordingly it has been held that the 
 following employes are fellow servants: Locomotive engineer or conductor 
 and switchman, Farwell v. Boston & W. R. Corp., 4 Mete. (Mass.) 49, 38 Am. . 
 Dec. 339; engineer and brakeman, Southern Ry. Co. v. Elliott, 170 Ind. 273, 
 82 N. E. 1051 ; engineer and fireman, Healy v. Buffalo, R. & P. Ry. Co., Ill 
 
G32 MASTER AND SERVANT (Ch. 16 
 
 Other states, the rule is different; and servants employed by the 
 same master, and in the same general enterprise, are not regarded 
 as being fellow servants, within the rule exempting the master, 
 unless their duties are such as to bring them into personal asso- 
 ciation, or unless they are actually co-operating at the time of the 
 injury. If they are in entirely separate and .distinct departments, 
 the courts of tliese states apply the doctrine of respondeat superior, 
 and hold the master liable."^ 
 
 App. Div. 618, 97 N. T. Supp. 801 ; engineer and locomotive cleaner, Sage v. 
 Baltimore & O. R. Co., 219 Pa. 129, 67 Atl. 985; workmen In repair shop 
 of railroad, who are being caFried on a train, and a flagman or switchman, 
 Oilman v. Railroad Corp., 10 Allen (Mass.) 233, 87 Am. Dec. 635; laborers 
 ou railroad tracks or bridges and engineers or conductors of train, whether 
 the former are injured while being carried on the train, or while at wovk on 
 the road or bridge, Seaver v. Railroad Co., 14 Gray (Mass.) 466; Dick v. 
 Railroad Co., 38 Ohio St. 389 ; Russell v. Railroad Co., 17 N. Y. 134 ; Evans- 
 ville & R. R. Co. v. Henderson, 134 Ind. 636, 33 N. E. 1021 ; Sehaible v. Rail- 
 way Co.-, 97 Mich. 318, 56 N. Wi 565, 21 L. R. A. 660 ; founder in a blast 
 furnace, having charge of the inside work of the furnace, and the engineer 
 of a locomotive used by the same company in moving cars on its premises, 
 Adams v. Iron Cliffs Co., 78 Mich. 288, 44 N. iW. 270, 18 Am. St. Rep. 441; 
 brakeman and car inspector, .the latter being injured by the negligence of 
 the former, Potter v. New York, etc., R. Co., 136 N. Y. 77, 32 N. E. 603. As to 
 the rule where the inspector is negligent, see ante, p. 62 1, note "39. Brake- 
 man and men who make up trains, Thyng v. Railroad Co., 156 Mass. 16, 
 30 N. E. 169, 32 Am. St. Rep. 425. Brakeman and switching crew, Sonsmith 
 v. Pere Marquette R. Co., 173 Mich. 57, 138 N. W. 347. Injured employ^ 
 and blacksmith who dressed defective tools. Wochner v. Pennsylvania En- 
 gineering Works, 251 Pa. 188, 96 Atl. 471. Engineer in charge of engine 
 operating tram cars and employe engaged in inspecting and keeping tram- 
 way in repair are fellow servants. Larson v. Kieburtz, 71 Wash. 231, 128 
 Pac. 216. 
 
 Bi Chicago & N. W. R. Co. v. Moranda, 93 111. 302, 34 Am. Rep. 168 (collect- 
 ing fibe Illinois cases, and reviewing the doctrine) ; Union Pac. Ry. Co. v. 
 Erickson, 41 Neb. 1, 59 N. W. 347, 29 L. R. A. 137; Peoria, D. & B. Ry. Co. v. 
 Rice, 144 111. 227, 33 N. E. 951; Louisville, E. & St. L. Consol. R. Co. v. Haw- 
 thorn, 147 111. 226, 35 N. B. 534 ; Bertelsen v. Rock Island Plow Co., 164 111. 
 App. 459; Irwin v. F. P. Gould & Son, 99 Neb. 283, 156 N. W. 503; S'chlereth 
 V. Railway Co., 115 Mo. 87, 21 S. W. 1110; Card v. Eddy (Mo.) 24 S. W. 746; 
 Moon's Adm'r v. Railroad Co., 78 Va. 745, 49 Am. Rep. 401 ; Madden's Adm'r 
 V. Railway Co., 28 W. Va. 610, 57 Am. Rep. 695 ; St. Louis & S. P. Ry. Co. v. 
 Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176 ; Kane v. Erie R. Co.. 142 
 Fed. 682, 73 C.vC. A. 672; Lanning v. Chicago Great Western Rv. Co., 196 Mo. 
 647, 94 S. W. 491 ; LOUISVILLE & N. R. CO. v. BROWN, 127 Ky. 732, 108 S. 
 W. 795, 32 Ky. Law Rep. 552, IS L. R. A. (N. S.) 1135, Cooley Cas. Persons and 
 Domestic Relations, 331 ; Illinois Cent. R. Co. v. Tandy, 107 S. W. 715, 32 Ky. 
 . Law Rep. 962 ; St. Louis, I. M. & S. Ry. Co. v. Dupree, 84 Ark. 377, 105 S. W. 
 878, 120 Am. St. Rep. 74 ; Texas & P. Ry. Co. v. Nichols, 41 Tex. Civ. App. 119, 
 92 S. W. 411 ; Houston & T. C. li. Co. v. Turner, 99 Tex. 547, 91 S. W. 562. Mo- 
 
|§ 272-275) master's liability for injuries to servant ' 633 
 
 Employers' Liability Acts 
 
 Statutes known as "Employers' Liability Acts," defining the lia- 
 bility of the master for injuries to a servant, have been enacted by 
 Congress and by the Legislatures of a number of states."*^ In some 
 instances these statutes are merely declaratory of the common 
 law,^' but in others they establish rules differing in many respects 
 from the rules laid down by the courts in the absence of statute.^* 
 
 torman is not fellow servant of one repairing trolley wires. Mansfield Ry. 
 Light & Power Co. v. Barr, 2 Ohio App. 367. Fallers ui a logging camp are 
 not fellow servants of members of the crew hauling logs from the woods, 
 where they are left by the fallers. Cunningham v. Adna Mill. Co., 71 Wash. 
 Ill, 127 Pac. 850. Assistant millwrights, sent by employer's head millwright 
 to repair a belt furnishing power to the machine where plaintiff is working, 
 are not his fellow servants. Courtois v. King Paper Co., 172 Mich. 305, 137 N. 
 W. 699. In some of these cases the 'theory is definitely stated that only those 
 are fellow servants who are directly co-operating with each other and who 
 are in habitual association, so that they may observe and influence each oth- 
 er's conduct and exercise a mutual influence on each other promotive of proper 
 caution. Chicago & N. "W. R. Co. v. Morabda, 93 111. 302, 34 Am. Rep. 168; 
 Lyons v. Ryerson, 242 111. 409, 90 N. E. 288; Kaminsky v. Chicago Rys. Co., 
 286 111. 271, 121 N. B. 596, aflBrming 208 111. App. 304 ; Gathman v. City of Chi- 
 cago, 127 111. App. 150 ; Illinois Terminal R. Co. v. Chapin, 128 111. App. 170, 
 aflirmed Chaplin v. Illinois Terminal R. Co., 227 111. 166, 81 N. B. 15 ; Illinois 
 Steel Co. V. Ziemkowski, 220 111. 324, 77 N. E. 190, 4 L. R. A. (N. S.) 1161 ; Koer- 
 ner v. St. Louis Car Co., 209 Ma. 141, 107 S. W. 481, 17 L. R. A. (N. S.) 292. 
 Whether servants of a common master are fellow servants, within the mean- 
 ing of the law, is usually a question of fact ; but if the facts are not in dis- 
 Ipute, and reasonable men would agree as to the conclusions to be drawn from 
 the admitted facts, the question whether the relation of fellow servant exists 
 in a given case becomes a question' of law. Kamlsky v. Chicago Rys. Co., 286 
 111. 596, 121 N. E. 596, affirming 208 111. Appi 304. In Linqulst v. Hodges, 248 
 111. 491, 94 N. B.. 94, a cement worker was Injured by the negligence of a brick- 
 layer working in the same building. It w.as held that the first branch of the 
 rule — that "they must he directly co-operating with each other," etc. — was not 
 applicable, and the employSs could not be held to be fellow servants as a mat- 
 ter of law under that branch of the rule. It was also held that whether they 
 were fellow servants under the second branch of the rule — :that their usual 
 duties brought "them into habitual association, so that they may exercise a 
 mutual influence on each other promotive of proper caution" — was a question 
 of fact for the jury. 
 
 52 U. S. Comp. St. § 86517 et seq. ; Rev. Laws Mass. 1902, c. 106 ; Laws N. 
 T. 1902, p. 1748, c. 600; Civ. Code Ala. 1907, § 3910; Burns' Ann. St. Ind. 1901, 
 §§ 7083-7087 ; Act Pa. June 10, 1907 (P. L. 52.3) ; Mills' Ann. St. Rev. Supp. 
 Colo. 1891-1905, §§ 1511a, 1511f (Laws 1901, p. 161, c. 67). 
 
 6s Cleveland, C, C. & St. L. Ry. Co. v. Scott, 29 Ind. App. 519, 64 N. E. 896. 
 And see Hess v. Adamant Mfg. Co., 66 Minn. 79, 68 N. W. 774, construing Gen. 
 Laws Minn. 1895, p. 390, c. 173 ; Congrave v. Southern Pac. R. Co., 88 Cal. 360, 
 26 Pac. 175, construing Civ. Code Cal. 1906, § 1970. 
 
 0* Columbus & W. Ry. Co. v. Bradford, 86 Ala. 574, g South. 90. The Em- 
 
634 MASTER AND SBKVANT (Ch. 16 
 
 In Massachusetts, a superintendent was regarded as the fellow 
 servant of employes under him ; but the employer's liability act °-^ 
 makes the master liable for injuries due to the negligence of a su- 
 perintendent.°° So, too, in some instances the master is made lia- 
 ble for the negligence of a superior employe or agent.°' As a gen- 
 eral rule, under the various Employers' Liability Acts, federal and 
 state, the servant does not assume the risk 'due to the negligence 
 of the employer, extraordinary risks or the risk of negligence of 
 a fellow servant."' The federal statute relates only to common 
 carriers engaged in interstate commerce, and in many states the 
 statutes relate only to railroad companies and their employes."" 
 
 ployers' Liability Act takes the place of common-law liability when applicable. 
 Sumey v. Craig Mountain Lumber Co., 27 Idaho, 721, 152 Pac. 181. But in 
 many states the act does not abolish the common-law remedy. Kleps v. Bris- 
 tol Mfg. Co., 189 N. T. 516, 81 N. E. 765, 12 L. R. A. (N. S.) 103S ; St. Louis & 
 S. F. R. Co. V. LitUe, 75 Kan. 716, 90 Pac. 447. The federal Employers' Lia- 
 bility Act (U. S. Comp. St. §§ 86B7-8665), in so far as it relates to intrastate 
 carriers, supersedes the common law and state legislation. Michigan O. R. 
 Co. V. Vreeland, 227 U. S. 59, 33 Sup. Ct. 193, 57 L. Ed. 417, Ann. Cas. 19140, 
 176; Rowlands v. Chicago & N. W. R. Co., 149 Wis. 51, 135 N. W. 156, Ann. 
 Cas. 1916E, 714. 
 
 5B Laws 1887,' p. 899, c. 270; Rev. Laws 1902, c 106. 
 
 s8 See Malcolm v. Fuller, 152 Mass. 160, 25 N. E. 83 ; Davis v. Railroad Co., 
 159 Mass. 532, 34 N.E. 1070; O'Brien v. Rideout, 161 Mass. 170, 36 N. E. 792. 
 
 s7 Evans v. Railway Co., 70 Miss. 527, 12 South. 581. 
 
 5 8 Sells V. Grand Trunk Ry., 206 111. App. 45; Kustuvin v. Chicago & A. R. 
 Co., 209 111. App. 55, affirmed 287 111. 306, 122 N. E. 512 ; Northern Alabama Ry. 
 Co. V. Harper, 201 Ala. 679, 79 South. 251 ; Graves v. Union Oil Co., 36 CaL 
 App. 766, 173 Pac. 618; Wood v. Danas, 230 Mass. 587, 120 N. E. 159 ; Dickin- 
 son V. Cranberry (Okl.) 174 Pac. 776. The federal Employers' Liability Act 
 (tr. S. Comp. St. §§ 8657-8665) does not abolish the common-law rule as to the 
 assumption of ordinary risks of employment. King v. Norfolk S. R. Co., 176 
 N. C. 301, 97 S. E. 29, certiorari denied Norfolk & S. R. Co. v. King, 249 U. 
 S. 599, 39 Sup. Ot. 257, 63 L. Ed. 795. Under the federal act there must be 
 negligence to warrant a recovery. Louisville & N. R. Co. v. Kemp, 140 Ga. 
 657, 79 S. E. 558; Neil v. Idaho & W. N. R. Co., 22 Idaho, 74, 125 Pac. 331. 
 A violation of the Employers' Liability Act is negligence per se. Camenzind 
 V. Freeland Furniture Co., 89 Or. 158, 174 Pac. 139. 
 
 ■i^ See, for example. Rev. St. Mo. 1899, § 2878 (Ann. St. 1906, p. 1655)- Bates' 
 Ann. St. Ohio, § 3365—22; Code Iowa 1897, § 2071; Rev. Laws Minn' 1905 § 
 2042 ; Laws N. Y. 1906, p. 1682, c. 657; Const. Okl. art. 9, § 36. See, also, Phil- 
 adelphia & Reading Coal & Iron Co. v. Oravage, 229 Fed. 383, 143 CO. A. 
 '503 (construing the Pennsylvania act) ; Basham v. Chicago & G W Ry Co ' 
 178 Iowa, 998, 154 N. W. 1019, 157 N. W. 192; Hunter v. Ingram-Day Lumber 
 Co., 110 Miss. 744, 70 South. 901; Lusk v. Phelps (Okl.) 175 Pac. 756. As to 
 the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), see Balti- 
 more & O. R. Co. V. Branson, 242 U. S. 623, 37 Sup. Ct. 244, 61 L. Ed. .534 re- 
 versing 128 Md. 678, 98 Atl. 225; Anest v. Columbia & P. S. R. Co., 89 Wash 
 
§§ 272-275) master's liability for injuries to servant 635 
 
 Whenever the question has been directly presented, the constitu- 
 tionality of these statutes has been upheld."" 
 
 Workmen's Compensation Acts 
 
 •In a large number of states statutes, known as Workmen's Com- 
 pensation Acts, have Ijeen passed, which materially afifect the lia- 
 bility of masters for injuries to their employes, arising out of or in 
 the course of their employment.*^ The common-law theory of al- 
 lowing recovery for the servant's %ijury only when the master is 
 negligent is superseded by these acts, under which compensation 
 for injury or death does not rest on the master's negligence, and 
 is not defeated by the servant's contributory negligence, if it does 
 not amount to actual misconduct."^ It is npt important who is at 
 fault, or whether any one is, as the right to compensation is not 
 based on the theory of tort.^^ 
 
 The Workmen's Compensation Acts are based on the broad 
 economic theory that compensation for injury to or death of the 
 workman is properly chargeable as part of the cost of industrial 
 
 €09, 154 Pac. 1100. The Fellow Servant Act (Pub. Laws 1909, No. 104) applies 
 to employes of street railroads. Arends v. Grand Rapids Ry. Co., 172 Mich. 
 448, 138 N. W. 195. 
 
 60 Colorado Mill & Elevator Co. v. Mitchell, 26 Colo. 284, 58 Pac. 28; In- 
 dianapolis Union K^, Co. v. Houlihan, 157 Ind. 494, 60 N. B. 943, 54 L. R. A. 
 787 ; Powell v. Sherwood, 162 Mo. 605, 63 S. W. 485; Bucklew v. Central Iowa 
 •r. Co.. 64 Iowa, 603, 21 N. "W. 103 ; Erie R. Co. v. Kane, 155 Fed. 118, 83 O. C. 
 A. 564; Schradin v. New York Cent. & H. R. R. Co. (Sup.) 103 N. Y. Supp. 428. 
 Federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) : Mondou v. 
 New York, N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. 
 R. A. (N. S.) 44 ; Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 32 
 Sup. Ct. 589, 56 L. Ed. 911. 
 
 61 The first Compensation Act enacted in the United States Was the New 
 York law of 1910 (Laws 1910, c 674). Laws are now in force in over 30 states 
 and territories. In Europe similar legislation took place at a much earlier 
 •date. The first legislation of this character was the German Compensation Act 
 of 1884. Austria followed in 1887, Norway in 1894, Finland in 1895, and 
 Great Britain in 1897. Workmen's Compensation Acts are now in force in 
 over 25 jurisdictions outside of the United States. 
 
 62 Phil Hollenbeck Co. v. HoUenbach, 181 Ky. 262, 204 S. W. 152 ; American 
 Ice Co. V. Fitzhugh, 128 Md. 382, 97 Atl. 999, Ann. Cas. 1917D, 33. 
 
 63 State V. District Court of Hennepin County, 139 Minn. 205, 166 N. W. 185, 
 3 A. L. R. 1347 ; Doey v. Clarence P. Howland Co., 224 N. Y. 30, 120 N. B. 53, 
 aflBrming 182 App. Div. 152, 169 N. Y. Supp. ,645. In the latter case it is said 
 that awards under the act are not made on the theory that a tort has been 
 committed, but on the theory that the statute empowering the commission to 
 make an award is read Into and becomes a part of the contract of employ- 
 ment. 
 
036 MASTER AND SEEVANT ' (Ch. 16 
 
 activity and production.'* They have been passed in response to 
 a widespread public opinion that the common-law action to re- 
 cover damages for injuries suffered by employes from accidents 
 while in the performance of their duties under pr,esent industrial 
 conditions is in most cases an imperfect and inadequate remedial 
 instrumentality."" They are the outgrowtfi of the social and eco- 
 nomic theory "that the industry which has always borne the burden 
 of depreciation and destruction of the necessary machinery shall 
 also bear the burden of repairing the efficiency of the human ma- 
 chines, without which the industry itself could not exist." '" Their 
 general purpose is to transfer l^he burdens resulting from industrial 
 accidents from the individual to the industry, to be finally distrib- 
 uted on society as a whole, by compelling the industry, through 
 the employer, to contribute to the s^ipport of the dependents of 
 the injured person."^ The statutes should be liberally construed to 
 effect their purpose."' 
 
 These statutes have generally been held to be a proper exercise of 
 the police power,"* and is not open to objection on constitutional 
 grounds."" 
 
 8* Wangler Boiler & Sheet Metal Works Co. v. Industrial Commission, 287 
 111. 118, 122 N. E. 366 ; Grand Trunk R. Oo. v. Knapp, 233 Fed. 950, 147 C. C. 
 A. 624. 
 
 6 Sayles v. Foley, 38 B. I. 484, 96 Atl. 340. 
 
 6 6 Lewis & Clark County v. Industrial Accident Board of Montana, 52 Mont. 
 6, 155 Pac. 268, L. K. A. 1916B, 628. 
 
 6 7 Scott's Case, 117 Me. 436, 104 Atl. 794. 
 
 6 8 Scott's Case, 117 Me. 436, 104 Atl. 794; Lahoma Oil Co. v. Stal,e Indus- 
 trial Commission (Okl.) 175 Pac. 836; Karoly v. Industrial Commission (Colo.) 
 176 Pac. 284 ; Pater v. Superior Steel Co., 263 Pa. 244, 106 Ati. 202 ; Taglinette 
 V. Sydney Worsted Co. (R. I.) 105 Atl. 641; Rish v. Iowa Portland Cement 
 Co. (Iowa) 170 N. W. 532; Holt Lumber Co. v. Industrial Commission, 168 
 Wis. 381, 170 N. W. 366 ; United States Fidelity & Guaranty Co. v. Wickline, 
 103 Neb. 21, 170 N. W. 193, 6 A. L. R. 1267. 
 
 6 9 Sayles v. Foley, 38 R. I. 484, 96 Atl. 340; Hunter v. Colfax Consol. Coal 
 Co.i 175 Iowa, 245, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. 
 Cas. 1917E, 803 ; Evanhoff v. State Industrial Ace. Commission, 78 Or. 503, 154 
 Pac. 106 ; MatthiesSen & Hegeler Zinc Co. v. Industrial Board, 284 111. 378, 120 
 N. E. 249. 
 
 70 New York Cent. R. Co. v. White, 243 U. S, 188, 37 Sup. Ct. 247, 61 L. Ed. 
 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629 (New York act) ; Hawkins v. 
 Bleakly, 243 U. S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 639 
 (Iowa act) ; Mountain Timber Co. v. State of Washington, 243 U. S. 219, 37 
 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642 (Washington act) ; Deibekis 
 V. Link-Belt Co., 261 111. 454, 104 N. E. 211, Ann. Cas. 1915A, 41; Shade v. Ash 
 Grove Lime & Portland Cement Co., 93 Kan. 257, 144 Pae 249; State ex rel. 
 Yople V. Creamer, 85 Ohio St. 349, 97 N. E. 602, 39 L. R. A. (N, S.) 694; State 
 
§§ 272-275) master's liability for injuries to servant 637 
 
 Some of the statutes are compulsory in form, containing pro- 
 visions by which the employer and employe may be compelled to 
 submit to the terms of the statute.''^ But in a majority of the 
 states the statutes are optional in form, containing provisions under 
 which the employer and the employe may elect to com^ in under 
 the statute.''^ Under some statutes the employer or employe must 
 affirmatively reject the privilege of the act or he will be subject 
 thereto automatically.'* Contracts waiving or limiting the right 
 to compensation under the act and releases from liability are in- 
 valid.'* 
 
 ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. E. A. 
 (N. S.) 466; Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 
 Pac. 554 ; Sayles v. Foley, 38 R. I. 484, 96 Atl. 340 ; Western Indemnity Co. v. 
 Pillshury, 170 Cal. 686, 151 Pac. 398; Borgnis v. Falk Co., 147 Wis. 327, 133 N. 
 W. 209, 37 L. R. A. (N. S.) 489; Mathison v. Minneapolis Street R. Co., 126 
 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412 ; Miller & Lux, Inc., v. Industrial 
 Accident Commission, 179 Cal. 764, 178 Pac. 960; Day v. Louisiana Central 
 Lumber Co., 144 La. 820, 81 South. 328 ; State v. Postal Telegraph & Cable Co., 
 101 Wash. 630, 172 Pac. 902 ; Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648, 
 Ann. Cas. 1918B, 604; Friedman Mfg. Co. v. Industrial Commission (111.) 120 
 Iv. E. 4fi0: Duart v. Simmons, 231 Mass. 313, 121 N. E. 10; Zancanelli v. Cen- 
 tral Coal & Coke Co., 25 Wyo. 511, 173 Pac. 981; Middleton v. Texas Power & 
 Light Co., 249 U. S. 152, 39 Sup. Ct. 227, 63 L. Ed. 527 (Texas statute) ; Watts 
 V. Ohio Valley Electric Ry. Co., 78 W. Va. 144, 88 S. B. 659. 
 
 71 The statutes are compulsory in form either as to all occupations or as to 
 some of them in the following states : Arizona, California, Hawaii, Maryland, 
 New York, North Dakota, Ohio, Oklahoma, Utah, Washington, and Wyoming. 
 As to the Arizona act, see Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 
 382, 139 Pac. 4tt5 ; California act, see Western Indemnity Co. v. Pillsbury, 170 
 Cal. 686, 151 Pac. 398; Ohio act, see State v. Industrial Commission, 92 Ohio 
 St. 434, 111 N. E. 299, L. R. A. 1916D, 944, Ann. Cas. 1917D, 1162 ; Utah act, 
 see Industrial Commission v. Daly Mining Co. (Utah) 172 Pac. 301. 
 
 72 The statute is optional in form in Alaska, Colorado, Connecticut, Illinois, 
 Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michi- 
 gan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, 
 Oregon, Pennsylvania, Rhode Island, Texas, Vermont, West Virginia, and 
 Wisconsin. See, also, Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; 
 Mackin V. Detrolt-Timkln Axle Co., 187 Mich. 8, 153 N. W. 49 ; Scott v. Payne 
 Bros., 85 N. J. Law, 446, 89 Atl. 927. An employer not included in any of the 
 classes enumerated in the act may by operating under the act free himself 
 from cofnmon-law liabilities. Wangler Boiler &' Sheet Metal Works Co. v. In- 
 dustrial Commission, 287 111. 118, 122 N. E. 366. 
 
 '3 Rogers V. Illinois Central R. Co., 210 111. App. 577; Young v. Duncan, 218 
 Mass. 346, 106 N. E. 1 ; Harris v. Hobart Iron Co., 127 iMinn. 399, 149 N. W. 
 662; Dietz v. Big Muddy Coal & Iron Co., 263 111. 480, 105 N. B. 289 ; Gorrell 
 v. Bottelle,' 93 Kan. 370, 144 Pac. 244. 
 
 74 In re Cox, 225 Mass. 220, 114 N. E. 281; Chicago Rys, Co. v. Industrial 
 Board, 276 111. 112, 114 N. B. 534 ; West Jersey Trust Co. v. Philadelphia & R. 
 R. Co., 87 N. J. Law, 102,-95 Atl. 753. 
 
638 MASTER AND SERVANT (Gh. 16 
 
 Same — Abrogation of Common-Lam Defenses 
 
 Though in most states the statutes are optional in form and 
 ostensibly permit the employer to elect whether he will avail him- 
 self of their provisions or not, an element of coercion is introduced 
 into them by provisions declaring in efifect that, if the employer 
 does not elect to come in under the act or if he rejects it, the de- 
 fenses of contributory negligence, assumption of risk, and negli- 
 gence of fellow servant shall not be available to the employer.'^'- 
 The constitutionality of these provisions has been upheld in nu- 
 merous cases.'^* 
 
 Same — Persons to Whom the Acts are Applicable 
 
 As injuries to employes of common carriers engaged in interstate 
 commerce are covered by the federal Employers' L,iability Act,'^ 
 persons thus employed do not come within the protection of the 
 Workmen's Compensation Acts.'* These acts do not as a rule ap- 
 
 75 Sadowski v. Thomas Furnace Co., 157 Wis. 443, 146 N. W. 770; Pope v. 
 -Heywood Bros. & Wakefield Co., 221 Mass. 143, 108 N. E. 1058; Watts v. Ohio 
 Valley Electric Co., 78 W. Va. 144,, 88 S. E. 659 ; National Enameling & Stamp- 
 ing Co. V. Padgett, 251 Fed. 30, 163 C. O. A. 280 ; Spiehs v. InsuU, 207 111. App. 
 256; Bell v. Toluca Coal Co., 272 111. 576, 112 N. E. 311; Bay State .St. Ry. Co. 
 V. Bust, 253 Fed. 43, 165 C. C. A. 641 (Rhode Island) ; Gay v. Hocking Coal 
 Co., 184 Iowa, 949, 169 N. W. 360; La Point v. Monadnock Paper Mill, 79 N. 
 H. 61, 104 Atl. 251 ; Mitchell v. Swanwood Coal Co., 182 Iowa, 1001, 166 N. W. 
 391; Schlehuber v. American Express Co., 230 Mass. 347, 119 N. E. 828. 
 Though the employer who rejects the act is precluded from pleading contribu- 
 tory negligence, yet he is exonerated as to the proportional part of the dam- 
 ages corresponding to the amount of negligence of the employs. Day v. Chi- 
 cago, M. & St. P. Ry. Co., 208 111. App. 351, affirmed 284 111. 534, 120 N. E. 480. 
 
 7 e Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. 
 Cas. 1917D, 637 ; Watts v. Ohio Valley Electric Co., 78 W. Va. 144, 88 S. E. 
 659; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71, L. R. 
 A. 1916D, 412; Hunter v. Colfax Consolidated Coal Co., 175 Iowa, 2451, 154 N. 
 W. 1037, 157 N. W. 145; Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; 
 Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489. The 
 Legislature has power to modify or abolish entirely, by the Workmen's Com- 
 pensation Act, the rules of law relating to contributory negligence, assump- 
 tion of risk, and negligence of fellow servants. Strom v. Postal Telegraph- 
 Cable Co., 271 111. 544, 111 N. E. 555 ; Mathison v. Minneapolis Street R. Co., 
 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412. 
 
 77 Ante, p. 633. 
 
 7 8 Erie R. Co. v. Winfleld, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. 
 Cas. 1918B, 662 ; Southern Pacific Co. v. Pillsbury, 170 Cal. 782, 151 Pac. 277, 
 L. B. A. 1916E, 916; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Connelly v. 
 Michigan Cent. R. Co., 207 111. App. 25 ; Thornton v. Grand Trunk-Milwaukee 
 Car Ferry Co., 202 Mich. 609, 168 N. W. 410 ; Flynn v. New York S. & W. R. 
 Co., 91 N. J. Law, 693, 103 Atl. 1052 aflarmlng 90 N. J. Law, 450, 101 Atl. 1034; 
 
§§ 272-275) master's liability for injuries to servant 639 
 
 ply to farm laborers,'* nor to minors employed in contravention of 
 the laws relating to child labor. ^° So, too, the acts provide that 
 they shall not apply to persons whose employment is merely of a 
 "casual" nature.*^ 
 
 Same — Injury must Arise Out of and in the Course of the Employment 
 Under the provisions of the various Workmen's Compensation 
 Acts, compensation is paya.ble only for injuries "arising out of and 
 in the course of the employment." '^ The terms "arising out of" 
 and "in the course of" are not synonymous.*^ The words "aris- 
 ing out of" the employment relate to the cause or source of the in- 
 jury, while the words "in the course of" the employment have refer- 
 ence to the time, place, and circumstances of the injury.** The 
 terms are in the conjunctive and recovery can be had only when 
 
 Spokane & I. E. Ry. Co. v. Wilson, 104 Wash. 171, 176 Pac. 34; Matney v. 
 Bush, 102 Kan. 293, 169 Pac. 1150. 
 
 7 9>MuIlen V. Little, 186 App. Dlv. 1^9, 173 K Y. Supp. 578 ; Miller & Lux, 
 Incl, V. Industrial Accident Commission, 179 Cal, 764, 178 Pac. 960; State v. 
 District Court of Watonwan County, 140 Minn. 398, 168 N. W. 130, L. R. A. 
 1918F, 198 ; KeUey v. Haylock, 163 Wis. 326, 157 N. W. 1094, L. R. A. 1916E, 
 626. 
 
 80 Gutmann v. Anderson, 142 Minn. 141, 171 N. W. 303; Taglinette v. Sydney 
 Worsted Co. (R..I.) 105, Atl. 641. Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 
 151, 156 N. W. 971, Ann. Cas. 1918B, 675; Hetzel v. Wasson Piston-Ring Co., 
 89 N. J. Law, 201, 98 AU. 306, L. R. A. 1917D, 75 ; Zurasky v. Handy Cap Co., 
 210 111. App. 254 ; Secklich v. Harris-Emery Co., 184 Iowa, 1025, 169 N. W. 325, 
 327 ; Kruczkowski v. Polonia Publishing Co., 203 Mich. 211, 168 N. W. 932 ; 
 Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N. B. 229 ; Waterman Lum- 
 ber Co. V. Beatty (Tex. Civ. App.) 204 S. W. 448. 
 
 81 See Gaynor's Case, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363 (hold- 
 ing that a waiter employed by a caterer to serve at a particular banquet is 
 not within the act). A carpenter employed to make slight repairs on a build- 
 ing is a "casual" employg. La Grande Laundry Co. v. Pillsbury, 173 Cal. 777, 
 161 Pac. 988. A workman employed to repair a tractor is a casual employe. 
 Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Fac. 1031. 
 
 8 2 See the various statutes. And see Bryant v. Flssell, 84 N. .T. Law, 72, 
 86 Atl. 458 ; Pierce v. Boyer-Van Kuran Lumber Co., 99 Neb. 321, 156 N. W. 
 509 ; Cennell vr Oscar Daniels Co., 203 Mich. 781, 168 N. W. 1009 ; Hoenig v. 
 Industrial Commission, 159 Wis. 646, 150 N. W. 996, L, R. A. 1916A, 339. But 
 see Stertz v. Industrial Ins. Commission, 91 Wash. 588, 158 Pac. 256, Ann. Cas. 
 1918B, 354. 
 
 83 Phil Hollenbach Co. v. HoUenbach, 181 Ky. 262, 204 S. W. 152; Walther 
 v. American Paper Co., 89 N. J. Law, 732, 98 Atl. 264 ; State ex rel. Duluth 
 Brewing Malting Co. v. District Court of St. Louis County, 129 Minn. 176, 151 
 N. W. 912. 
 
 8 4 Walther v. American Paper Co., 89 N. J. Law, 732, 98 Atl. 264; Phil Hal- 
 lenbach Co. v. Hallenbach, 181 Ky. 262, 204 S. W. 152. 
 
640 MASTER AND SERVANT (Ch. 16 
 
 the injury arises "out of" and at the same time "in the course of" 
 the employment.'" 
 
 An injury "arising out of and in course of the employment" must 
 result from a risk reasonably incidental to employment, within the 
 period of employment, at a place where the employe may reason- 
 ably be, and while he is reasonably fulfilling the duties of his em- 
 ployment, or doing something incidental to it.'* While it is true 
 that, in order to be compensable, it is not essential that the injury 
 should occur while the employe is on the premises of the employ- 
 er,'^ yet as a general rule the acts do not cover injuries received 
 while the employe is on his way to work or injuries received after 
 he has actually quit work and has left the premises on his way 
 home." But if, while on his way to or from work, he is engaged in 
 
 85 HuUey v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 
 1203, reversing 87 N. J. Law, 103, 93 Atl. 79. State ex rel. Duluth Brewing 
 & Malting Co. v. JDistrict Court of St. Louis County, 129 Minn. 176, 151 N. W. 
 912. 
 
 86 N. K. Fairbank Co. v. Industrial Commission, 285 111. 11, 120 N. E. 457; 
 Pace V. Appanoose County, 184 Iowa, 498, 168 N. W. 916; King v. State Ins. 
 Fund (Sup.) 171 N. Y, Supp. 1032 ; Bryant v. Fissell, 84 N. J. Law, 72. 86 Atl. 
 458. Injuries arising out of employment includes injuries to servants whose 
 services are being performed about the premises of the employer and at places 
 where the employer's business requires their presence, and subjects them to 
 dangers incident to the business. Great Lakes Dredge & Dock Co. v. Totzke 
 (Ind. App.) 121 N. a 675. The employe is in course of employment, though 
 perfiorming some labor different from that in which he is usually employed. 
 Hartz V. Hartford Faience Co., 90 Conn. 589, 97 Atl. 1020. It is not' esseniial 
 that the employe shall be actually at work at the time the injury was received. 
 Scott V. Payne Bros., 85 N. J. La*, 446, 89 Atl. 927. Thus, where the em- 
 ploys was injured while seeking shelter from a storm, he could recover. 
 Moore v. Lehigh Valley R. Co., 169 App. DIv. 177, 154 N. T. Supp. 620 ; State 
 ex rel. People's Coal & Ice Co. v. District Court of Ramsey County, 129 Minn. 
 502, 153 N. W. 119, L. R. A. 19ieA, 344. So, where a workman, in lighting a 
 cigarette or pipe during working, hours, accidentally set fire to inflammable 
 material about his person, the injury arose out of and in the course of his em- 
 ployment. Whiting-Mead Commercial Co. v. Industrial Accident Commission, 
 178 Cal. 505, 173 Pae. 1105, 5 A. L. B. 1518; Dzikowska v. Superior Steel Co., 
 259 Pa. 578, 103 Atl. 351, L. R. A. 1918F, 888. Where an employer did not pro- 
 vide proper toilet facilities for employes in. the building where they were at 
 work, but they were compelled to jro to another building of the employer 
 across the street, an injury received while crossing the' street arose out of an4 
 in the course of the employment. Zabriskie v. Erie Railroad Co., 86 N. J. Law, 
 266, 92 Atl. 385, L. R. A. 1916A, 315. 
 
 87 Hills V. Blair, 182 Mich. 20, 148 N. W. 243. 
 
 8 8 Erickson v. St. Paul City Ry., 141 Minn. 166, 169 N. W. 532; Pace v. Ap- 
 patioose County, 184 Iowa, 498, 168 N. W. 916; N. K, Fairbank Co. v. Indus- 
 trial Commission, 285 111. 11, 120 N. E. 457; Mclnery v. Buffalo & S. B. Corp;, 
 
§§ 272-275) master's liability for injuries to servant 641 
 
 some enterprise incidental to his work for the employer, an injury- 
 received is covered by the act." So~ too, if he is being transported 
 to or from work on the invitation of, or in accordance with cus- 
 tom established by the employer, an injury received arises out of 
 and in the course of the employment."" Of course, if the employe is 
 traveling under the orders or at the request of the employer, ah 
 injury received while so traveling arises out of and in the course of 
 the employment.*^ 
 
 Same — Willful Misconduct 
 
 The Compensation Acts provide that no compensation is recov- 
 erable for injuries due to the willful misconduct of the employe. 
 The term "willful misconduct" does not necessarily include negli- 
 gence, though gross.®^ Even the violation of rules and orders is 
 not always willful misconduct, which will bar compensation, 
 
 225 N. Y. 130, 121 N. E. 806, reversing 185 App. Div. 899, 170 N. X. Supp. 1096; 
 De Constantin v. Public Service Commission, 75 W. Va. 32, S3 S. B. 88, D. R. 
 A. 1916A, 329 ; Fumlciello's Case, 219 Mass. 488, 107' N. B. 349 ; Guastelo v. 
 iMichigan Central R. Co., 194 Mich. 382, 160 N. W. 484, L. R. A. 1917D, 69; 
 Hills V. Blair, 182 Mich. 20, 148 N. W. 243. Leaving the premises to procure 
 or eat lunch does not necessarily bar a recovery. SusscUne's Case, 218 Mass. 
 1, 105 N. E. 433, L. R. A. 1916A, 318. But compare Hills v. Blair, 182 Mich. 
 20, 148 N. W. 243. 
 
 8-9 Scully V. Industrial Commission, 284 III. 567, 120 N. E. 492 ; Bachman v. 
 Waterman (Ind. App.) 121 N. E. 8. 
 
 90 Littler v. Geo. A. Fuller Co., 223 N. Y. 369, 119 N. E. 554, reversing 182 
 App. Div. 907, 168 N. Y. Supp. 1116. Where an employs, while riding in a 
 conveyance of his employer from the place of business to the place where work 
 was to be done, Jeft the vehicle to enter a store to purchase tobacco for his 
 own use, and was struck by a passing automobile, the injury did not arise 
 out of or in course of his employment. In re Batts (Ind. App.) 118 N. b: 551. 
 An employs, proceeding from shop to place where he is to work under instruc- 
 tions from his employer, is. within the act. City of Milwaukee v. Altholf, 156 
 Wis. 68, 145 N. W. 238, L. R. A. 1916A, 327. A plumber, injured while driving 
 his employer's horse and wagon from the job to the shop, may recover. In 
 re Sanderson, 224 Mass. 558, 113 N. E. 355. 
 
 91 Industrial Commission of Colorado v. .iEtna Life Ins. Co. (Colo.) 174 Pac. 
 589, 3 L. R. A. 1336 ; State v. District Court of Hennepin County, 141 Minn. 61, 
 169 N. W. 274 ; Messer v. Manufacturers' Light & Heat Co., 268 Pa. 5, 106 Atl. 
 85 ; In re Raynes (Ind. App.) 118 N. B. 387. And see Foley v. Home Rubber 
 Co., 89 N. J. Law, 474, 99 Atl. 624, where the employs was on the Lusitania 
 when it was sunk by a German submarine. Where an engineer, while on his 
 vacation, visited a pumping station in another town at the request of his em- 
 ployer, for the purpose of observing the methods of operating such pumping 
 station, any injury received while on such journey was covered. Messer v. 
 Manufacturers' Light & Heat Co., 263 Pa. 5, 106 Atl. 85. 
 
 92 Burns' Case, 218 Mass. 8, 105 N. E. 601. Ann. Cas. 19ieA, 787; Nickerson's 
 Case, 218 Mass. 158, 105 N. B. 604, Ann. Cas. 1916A, 790 ; North Pacific S. S. ' 
 
 TMT.P.& D.Rel.(3d Ed.)— 41 ' 
 
642 MASTER AND SERVANT ' (Ch. 16 
 
 though generally speaking, the violation of rules and orders espe- 
 cially designed to secure the safety of the employe will be so re- 
 garded."' And so, too, the violation of a statute has been held to be 
 willful misconduct."* Intoxication may or may not be willful mis- 
 conduct, according to circumstances."' 
 
 RIGHTS OF MASTER AS AGAINST THIRD PERSONS 
 
 276. The master may recover from third persons for any damage 
 he may have suffered by reason of their wrongfvd inter- 
 ference with his relationship to the servant, either by en- 
 ticing the servant away, abducting or harboring him, by 
 inflicting personal injuries upon him, or falsely imprison- 
 ing him, or otherwise depriving the master, in whole or in 
 part, of his services. 
 
 Whenever a servant is knowingly enticed °° from his master's 
 service, the master may maintain an action of trespass on the case 
 per quod servitium amisit against the enticer; and such an action 
 will also lie at common law against one who harbors a servant, 
 knowing that he has wrongfully left his master. A master may 
 also maintain an action against one who willfully, as by an assault 
 
 Co. V. Industrial Accident Commission, 174 Cal. 500, 163 Pac. 910 ; Gignac V. 
 Studebaker Corp., 186 Mich. 574, 152 N. W. 1037. 
 
 9 3 Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35; Nicker- 
 son's Case, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790; Peru Basket 
 Co. V. Kunlz (Ind. App.) 122 N. E. 349. 
 
 9 4 Fidelity & Deposit Co. v. Industrial Commission, 171 Cal. 728, 154 Pac. 
 834, L. R. A. 1916D, 903. 
 
 96 Intoxication, which does not incapacitate the employe from following his 
 occupation, does not defeat recovery of compensation, though it may be a con- 
 tributing cause of the injury. Hahnemann Hospital v. Industrial Board, 282 
 m. .S16, 118 N. E. 767. And see Nekoosa-Edwards Paper Co. v. Industrial 
 Commission, 154 Wis. 105, 141 N. W. 1013, L., R. A. 1916A, 348, Ann. Cas. 
 1915B, 995. On the other hand, if the employe is intoxicated to such an ex- 
 tent that he cannot follow his work, an injury then received is not in the 
 course of the employment. Lefens v. Industrial Commission, 286 111. 32, 121 
 l<r. E. 182. 
 
 00 "It is a material and necessary allegation that the defendant knew, at 
 the time of enticing, employing, or harboring, that the party enticed away, 
 employed, or harbored was the servant of the plaintiff, or that he afterwards 
 had notice thereof, and continued to employ or harbor the servant after Buch 
 notice. And such knowledge or notice must be proved in order to support 
 the action." Butterfield v. Ashley, 6 Oush. (Mass.) 249. And see Caughey 
 v. Smith, 47 N. Y. 244. 
 
§ 276) EIGHTS OF MASTER AGAINST THIRD PEESON / 643 
 
 and battery, or false imprisonment, or negligently, inflicts personal 
 injury upon his servant, resulting in loss of service to the master, 
 or by any other wrong causes such loss of service."^ 
 
 It has been said that this doctrine was confined, at common law, 
 to menial or domestic servants and apprentices; and under this 
 view it has been held that, as laborers employed by a man to work 
 his crops for a share therein are not menial servant^, the master 
 cannot maintain an action for loss of service against one who in- 
 jures such an employe."* The weight of authority, however, is 
 against this view. The Massachusetts court, referring to the mas- 
 ter's right of action for enticing away his servant, said: "It has 
 sometimes been supposed that this doctrine sprang from the Eng- 
 lish statute of laborers, and was confined to menial service. But 
 we are satisfied that it is founded upon the legal right derived from 
 
 »7 1 Jag. Torts, 448. Enticing away servant, Keane v. Boycott, 2 H. Bl. 
 511 ; I/umley v. Gye, 2 El. & Bl. 216 ; Blxby v. Dunlap, 56 N. H. 456, 22 Am. 
 Rep. 475, and note therein at pages 485-490 ; Salter v. Howard, 43 Ga. 601 ; 
 Walker v. CYonin, 107 Mass. 555; Scidmore v. Smith, 13 Johns. (N. T.) 322; 
 WooQward v. Washburn, 3 Denio (N. T.) 369; Caughey v. Smith, 47 N. Y. 
 244; Jones v. Blocker, 43 Ga. 331; Haskins v. Eoyster, 70 N. 0. 601, 16 Am. 
 Rep. 780 ; Duckett v. Pool, 33 S. C. 238, 11 S. E. 689 ; Mllbume v. Byrne, 1 
 Oranch, 0. C. 239, Fed. Cas. No. 9,542. Abduction of servant, Sherwood v._ 
 Hall, 3 Sumn. 127, Fed. Cas. No. 12,777; Plummer v. Webb, 4 Mason, 380," 
 Fed. Cas. No. 11,233. Preventing a person from entering the service of an- 
 other by menaces and thx-eats or other unlawful means, Walker v. Cronin, 
 107 Mass. 555. Harboring another's servant, Blake v. I/anyon, 6 Term R. 
 221; Sherwood v. Hall, 3 Sumn. 127, Fed. Cas. No. 12,777; Scidmore v. 
 Smith, 13 Johns. (N. T.) 322. But in Massachusetts! it is held that one who 
 does nothing to entice a servant to leave his master's employment does not 
 become liable to the master for employing him after he has left of his own 
 accord. Butterfield v. Ashley, 6 Cush. (Mass.) 249, Id. 2 Gray (Mass.) 254. 
 Seduction or debauching of female servant, Edmondson v. Machell, 2 Term 
 S. 4', Moran v. Dawes, 4 Cow. (N. Y.) 412. Willfully or negligently causing 
 personal in,iury to servant, Ames v. Railway Co., 117 Mass. 541, 19 Am. Rep. 
 426; Fluker v. Banking Co., 81 Ga. 461, 8 S. E. 529, 2 L. R. A. 843, 12 Am. 
 St. Rep. 328. False arrest and imprisonment of servant, St. Johnsbury & 
 L. O. R. Co. V. Hunt, 55 Vt. 570, ^5 Am. Rep. 639 ; Woodward v. Washburn, 
 3 Denio (N. Y.) 369. The statute of frauds, while it may be a good defense 
 in an action by either of the parties on a verbal con,tract of hiring for a 
 longer period than a year, is no defense in an action by the master against a 
 third person for enticing away the servant. Duckett v. Pool, 33 S. O. 238, 11 
 S. E. 689. Nor is the infancy of the servant any defense, since he alone 
 is entitled to avoid the contract on that ground. Keane v. Boycott, 2 H. Bl. 
 511. 
 
 98 Burgess v. Carpenter, 2 S. C. 7, 16 Am. Rep. 643 ; Huff v. Watkius, 15 
 S. C. 82, 40 Am. Rep. 680. But see Daniel v. Swearengen, 6 S. 0. 297, 24 Am. 
 Rep. 471. 
 
644 MASTER AND SERVANT (Ch. 16 
 
 the contract, and not merely upon the relation of master and serv- 
 ant, and that it applies to all contracts of employment." °' To en- 
 title a 'master to recover from one who injures or entices away his 
 servant, it is sufficient to show a subsisting relation of service, even 
 though it may be determinable at will.^ To induce — but not mali- 
 ciously — a servant to leave his master's service when the time for 
 which he has hired himself shall expire is not actionable, though 
 the servant may have previously had no intention of leaving.^ If 
 a third person maliciously, and not in the exercise of any right 
 which the law gives him, procures a servant to break his contract 
 and leave his master, or even to leave an employment at will, and 
 damage thereby results to the master, the latter may maintain an 
 action against the wrongdoer.^ 
 
 RIGHTS OF SERVANT AGAINST THIRD PERSONS 
 
 277. A servant may maintain an action against a third person for 
 causing his discharge, if he acted gratuitously and mali- 
 ciously, and damage has resulted, but not otherwise. 
 
 A man may withhold his trade from another, or even break a 
 contract with him, for the reason that he employs a certain per- 
 son, and if the employe is discharged he has no cause of action 
 against such person for causing his discharge; for a man does not 
 become Hable for injury to another, caused by an act which he has 
 a legal right to do.* But a man cannot maliciously and wantonly 
 interfere with another's rights without rendering himself liable for 
 resulting damage. As a master has a right of action against one 
 
 09 Walker v. Cronln, IW Mass. 555. And see Haskins v. Royster, 70 N. 
 O. 601, 16 Am. Rep. 780; Jones v. Blocker, 43 Ga. 331; Salter v. Howard, 
 43 Ga. 601 ; Daniel v. Swearengen, 6 S. C. 297, 24 Am. Rep. 471. 
 
 1 Keane v. Boycott, 2 H. Bl. 511 ; Evans v. Walton, L. R. 2 C. P. 615 ; 
 Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780. 
 
 2 Boston Glass Manufactory v. Blnney, 4 Pick. (Mass.) 425. 
 
 => Bowen v. Hall, 6 Q. B. Div. 333 ; Lumley v. Gye, 2 El. & Bl. 216 ; Walker 
 V. Cronin, 107 Mass. 555; CMpley v. Atkinson, 23 Fla. 206, 1 South. 934, 11 
 Am. St. Rep. 367 (collecting the cases); Thacker Coal & Coke Co v Burke 
 59 W. Va. 253, 53 S. E. 161, 5 L. R. A. (N. S.) 1091, 8 Ann. Cas." 885 ; Mc- 
 Bride v. O'Neal, 128 Ga. 473, 57 S. E. 789 ; George Jonas Glass Co. v. Glass 
 Bottle Blowers' Ass'n of United States and Canada, 72 N J Eq 653 66 Atl 
 
 4 Chipley v. Atkinson, 23 Fla. 206, 1 South. 934, 11 Am. St. Rep. 367. See 
 Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373. 
 
§§ 278-279) master's liability to third persons 645 
 
 who maliciously induces his servant to leave him, so, also, it is 
 held that an action will lie on behalf of a servant against a person 
 ^vho has maliciously procured the master to discharge him irom 
 employment under a legal contract. And it has been further held 
 that the fact that no contract, nor any legal right of the servant 
 against the master, is violated by the master, or that no action will 
 lie by the servant against the master for the discharge, does not 
 prevent a recovery against the third person for maliciously procur- 
 ing the discharge, if it would not have occurred but for, such pro- 
 curement.^ » 
 
 MASTER'S LIABILITY TO THIRD PERSONS 
 
 278. The master is liable to third persons on contracts entered 
 
 into by the servant in his namie, or on his behalf, if he ex- 
 pressly or impliedly authorized the contract, or if he sub- 
 sequently ratified it, but not otherwise. ' 
 
 279. The master is liable for frauds and wrong committed by the 
 
 servant, if expressly or impliedly directed or authorized by 
 him, or if committed by the servant in the course of the 
 emplojmient, but not otherwise. To render one liable un- 
 der this rule the relation must be that of master and serv- 
 ant, and not that of employer and independent contractor. 
 
 The master is bound by the act of his servant, either in respect 
 to contracts or injuries, when the act is done by authority of the 
 master.* As to this proposition there can be no doubt. But there 
 is miich difficulty when we come to determine what acts on the 
 part of the servant are to be deemed authorized by the ;naster, for 
 the authority may be either express or implied. 
 
 B CMpley V. Atkinson, 23 Fla. 206, 1 South. 984, 11 Am. St. Rep. 367 (col- 
 lecting cases) ; Lally v. Xfantwell, 40 Mo. App. 44 ; WSreman v. Deady, 79 
 Conn. 414, 65 Atl. 129, 118 Am. St. Rep. 152, 8 Ann. Oas. 375; Brennan v. 
 United Hatters of North America, Local No. 17, 73 N. J. Law, 729, 65 Atl. 
 165, 9 L. R, A.. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Oas. 698. An em- 
 ployer's liability insurance company, which procures the discharge of au 
 employe who has sued the insured employer for personal injury, with intent 
 to injure him, is liable to such employ^. Gibson v. Fidelity & Casualty Co., 
 232 111. 49, 83 N. E. 539. See, also, Ix)ndon Guarantee & Accident Co. v. 
 Horn, 206 111. 493, 69 N. E. 526, 99 Am. St. Rep. 185. 
 
 6 2 Kent, Oomm. 259. 
 
646 MASTER AND SERVANT (Ch. 16 
 
 On Contracts by the Servant 
 
 The liability of the master on contracts entered into bv the serv- 
 ant depends upon principles of the law of agency. If i he is liable 
 at all upon a contract made on his behalf by his servant, it must 
 be either because he authorized the servant to make the contract, 
 or ratified it when made. Without this there can be no liability.'^ 
 The master is liable, of course, whenever he has given the servant, 
 an express authority to contract. He is also liable if he has impli- 
 edly authorized the servant, as by holding him out as having au- 
 thority.* He is also liable if he ratifies the servant's act in con- 
 tracting without authority.* 
 
 Por the Servants Torts 
 
 If the servant does an injury fraudulently or wrongfully, while 
 in the immediate employment of the master, and in the course of 
 such employment, the master, as well as the servant, is liable there- 
 for, even though, the wrongful act may have been done contrary to 
 the master's orders.^" And if an injury results from the negli- 
 gence or want of skill of the servant, while acting within the scope 
 of his employment, the master, as well as the servant, is liable.^^ 
 
 ' Clark, Cont. 717 ; President, etc., of Mechanics' Bank v. New Tork & 
 N. H. B. Co., 13 N. Y. 599. 
 
 « Clark, Cont. 717 ; Morey v. Webb, 58 N. Y. 350 ; Bentley v. Doggett, 51 
 Wis. 224, 8 N. W. 155, 37 Am. Eep. 827. , 
 
 » Clark, Cont. 719, and cases there cited. 
 
 10 2 Kent, Comm. 259; Limpus v. London General Omnibus Co., 1 Hurl. 
 & C. 528; Whatman v.. Pearson, L. E. 3 C. P. 422; Jeffrey v. Bigelow, 13 
 Wend. (N. Y.) 518, 28 Am. Dec. 476; Drew v. Railroad Co., 26 N. Y. 49; 
 Doran v. Thomsen, 74 N. J. Law, 445, 66 Atl. 897; Houck v. Chicago & A. 
 K. Co., 116 Mo. App. .^59, 92 S. W. 738; Chicago City Ry. Co. v. McMahon, 
 103 111. 485, 42 Am. Rep. 29; Evans v. Davidson, 53 Md. 245, 36 Am. Rep. 
 400; Mound City Paint & Color Co. v. Conlon, 92 Mo. 221, 4 S. W. 922: Har- 
 ris V. Louisville, N. O. & T. R. Co. (C. C.) 35 Fed. 116; DriscoU v. Carlin, 
 50 N. J. Law, 28, 11 Atl. 482; Lee v. Lord, 76 Wis. 582, 45 N. W. 601; 
 French v. Cresswell, 13 'Or. 418, 11 Pac. 62; Elchengreen v. Railroad Co' 
 96 Tenn. 229, 34 S. W. 219, 31 L. R. A. 702, 54 Am. St. Rep. 833. But see. 
 Andrews v. Green, 62 N. H. 436. The fact that signal torpedoes, negligently 
 placed on a railroad track by trainmen, who were authorized to use them 
 in the management of the train, were put there when there was no neces- 
 sity for doing so, and contrary to the rules of the company, does not ex- 
 empt the company from liability to one who is injured thereby. Harriman 
 V. Railroad Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. Rep. 507. 
 
 11 Evans v. Davidson, 53 Md. 245, 36 Am. Rep. 400. In this case, a gen- 
 eral farm hand, working in his master's cornfield, undertook, in his master's 
 absence, and without express direction, to drive out a neighbor's ?ow, which 
 had broken into the field, and, in doing so, negligently struck her with a stone, 
 
§§ 278-279) master's liability to third persons 647 
 
 "In one sense, where there is no express command by the master, 
 all wrongful acts done by the servant may be said to be beyond 
 the scope of the authority given ; but the liability of the master is 
 not determined upon any such restricted interpretation of the au- 
 thority and duty of the servant. If the servant be acting at the 
 time in the course of his master's service, and for his master's 
 benefit within the scope of his employment, then his act, though 
 wrongful or negligent, is to be treated as that of the master, 'al- 
 though no express command or privity of the master be shown." ^^ 
 If the servant, in committing the wrong, is not acting in the course 
 
 and tilled her. The master was held liable. And see the cases cited In the 
 preceding note. So, where a master sent his servant to do certain grub- 
 bing, and the servant set a fire to facilitate his work, the master was held 
 liable for the consequences of the servant's negligence. EUegard v. Ack- 
 land, 43 Minn. 352, 45 N. W. 715. See, also, the following cases, in which 
 a master was held liable for injuries caused by the negligence of his serv- 
 ant: Pike V. Brittan, 71 Cal. 159, 11 Pac. 890, 60 Am. Rep. 52T; French v. 
 Cresswell, 13 Or. 418, 11 Pac. 62; Illinois Cent. E. Co. v. Downey, 18 111. 
 259; Scammon v. City of Chicago, 25 111. 424, 79 Am. Dec. 334; Andrews 
 V. Boedecker, 126 111. 605, 18 N. E. 651, 9 Am. St. Eep. 649 ; Cosgrove v. Og- 
 den, 49 N. T. 255, 10 Am. Eep. 361; Mauchle v. Panama-Pacific International 
 Exposition Co., 37 Cal. App. 715, l74 Pac. 400; Eidenour v. International 
 Harvester Co. (Mo. App.) 205 S. W. 881; Standard Oil Co. V. Parkinson, 152 
 Fed. 681, 82 C. C. A. 29 ; Mattingly v. Montgomery, 106 Md. 461, 68 Atl. 205 ; 
 FenefC v. Boston & M. E. R., 196 Mass. 575, 82 N. E. 705 ; Wakefield v. Bos- 
 ton Coal Co., 197 Mass. 527, 83 N. E. 1116; Sherwood v. Warner, 27 App. D. 
 C. 64, 4 L. E. A. (N. S.) 651, 7 Ann. Cas. 98. But see Chapman v: Under- 
 wood, 27 Phil. Eep. 374 (1914), holding, if a competent driver of an autor 
 mobile in which the owner thereof is at the time present, by a sudden act of 
 negligence, without the owner having a reasonable opportunity to prevent the 
 act or its continuance, violates the law, the owner of the automobile is not 
 responsible, either civilly or criminally, therefor. The ^aet complained of 
 must be continued in the presence of the owner for such a length of time 
 that he, by acquiescence, makes his driver's act his own. 
 
 12 Evans v. Davidson, 53 Md. 245, 36 Am. Eep. 400. See, also, Variety Mfg. 
 Co. V. Landaker, 129 111. App. 630; Usher v. Western Union Telegraph Co., 
 122 Mo. App. 98, 98 S. W. 84; Columbus E. Co. v. Woolfolk, 128 Ga. 631, 
 58 S. B. 152, 10 L. R. A. (N. S.) 1136, 119 Am. St. Eep. 404; Lotz v. Hanlon, 
 217 Pa. 339, 66 Atl. 525, 10 L. E. A. (N. S.) 202, 118 Am. St. Eep. 922, 10 Ann. 
 Cas. 731; South Covington & C. St. Ry. Co. v. Cleveland, 100 S. W. 283, 30 
 Ky. Law Eep. 1072, 11 L. R. A. (N. S.) 853; Coal Belt Electric Ey. Co. v. 
 Young, 126 111. App. 651, But an act done by a servant, while engaged in 
 his master's work, causing injury to a third person, but not done for the 
 purpose of performing that work, cannot be deemed the act of- the master. 
 Dougherty v. Chicago, M. & St. P. Ey. Co., 137 Iowa, 257, 114 N. W. 902, 14 L. 
 R. A. (N. S.) 590, 126 Am. St. Eep. 282. The expression, "in the course of his 
 employment," as affecting the liability of a master for the negligence of his 
 servants, means "while engaged in the service of the master," and is not 
 synonymous with "during the period covered by his employment." Slater 
 
G48 MASTER AND SERVANT (Ch. 16 
 
 of his employment, the master is not answerable.^' The difficulty- 
 is in determining, in particular cases, whether the servant was or 
 was not so acting. The test of a master's responsibility for the act 
 of his servant is whether the act was done in the prosecution of 
 the master's business, not whether it was done in accordance with 
 the instructions of the master to the servant.^* When, therefore, 
 the servant, while engaged in the prosecution of the master's busi- 
 ness, deviates from his instructions as to the manner of doing it, 
 this does not relieve the master from liability for his acts.^" 
 
 V. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. B. A. (N. S.) 
 598. ' ' 
 
 13 Stone V. Hills, 45 Conn. 44, 29 Am. Kep. 635. In this case the deffend- 
 ants had ordered their teamster to deliver a wagon load of paper to one T., 
 in Glastonbury four miles distant, and to return, by vs^ay of JJipsic with a load 
 of wood. On reaching T.'s, the teainster was requested by T. to carry the 
 paper to Hartford, four and a half miles further, and, at the railway sta- 
 tion there, to get some freight of T.'s and bring it to him. The teamster con- 
 sented, and, while he was paying the freight bill at the station, the team, be- 
 ing left unfastened, ran away, and injured the plaintiff's property. It was 
 held that the teamster was not engaged in the defendants' employment at the 
 time of the Injury, and the defendants were not liahle. And see Mitchell v. 
 Crassweller, 13 C. B. 237; Sheridan v. Charlick, 4 Daly (N. Y.) 338; Cava- 
 nagh V. Dinsmore, 12 Hun (N. Y.) 465. Mere deviation from the route or- 
 dered by the master in these and similar cases (running a boat, for instance) 
 is not a departure from the employment.. See Quinn v. Power, 87 N. T. 535, 
 41 Am. Rep. 392; for Illustrations of injuries caused by servants when not 
 acting in the course of their employment, see Wilson v. Peverly, 2 N. H. 548 ; 
 flower Y. Railroad Co., 69 Pa. 210, 8 Am. Rep. 251 ; Snyder v. Railroad Co., 
 60 Mo. 413 ; Mali v. Lord, 39 N. Y. 381, 100 Am. Dec. 448 ; McOlenaghan v. 
 Brock, 5 Rich. Law (S. C.) 17 ; Little Miami B. Co. v. Wetmore, 19 Ohio St. 
 110, 2 Am. Rep. 373; Patterson v. Kates (C. O.) 152 Fed. 481; Younkin v. 
 Rocheford, 76 Neb. 528, 107 N. W. 853, 110 N. W. 632; Chase v. Kn.«ibel, 46 
 Wash. 484, 90 Pac. 642, 12 L. R. A. (N. S.) 1155.. The fact that the servant 
 in committing the tort in connection with his own affairs uses facilities af- 
 forded by the relation of master and servant does not render the master lia- 
 ble. St. Louis Southwestern By. Co. v. Harvey, 144 Fed. 806, 75 C. C. A. 
 536; Louisville & N. R. Co. v. Gillen, 166 Ind. 321, 76 N. E. 1058; Slater v. 
 Advance Thresher. Co., 97 Minn. 305, 107 N. W. 133,^5 L. R. A. (N. S..) .o98. 
 
 i*Hogle V. H. H. Franklin Mfg. Co. (Sup.) 105 N. Y. Supp. 1094; Clark 
 V. Koehler, 46 Hun (N.. Y.) 536; Gregory's Adm'r v. Ohio River R. Co., 37 
 W. Va. 606, 16 S. E. 819. 
 
 IB Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361. It was said in this 
 case: "If the owner of a building employs a servant to remove the roof from 
 his house, and directs him to throw the materials upon his lot, where no one 
 would be endangered, and the servant, disregarding this direction, should 
 carelessly throw them into the street, causing an injury to a passenger, the 
 master would be responsible therefor, although done in violation or his in- 
 structions, because it was done in the business of the master. But should 
 the servant, for some purpose of his own, intentionally throw material upon 
 
§§ 278-279) master's liability to third persons 649 
 
 In McManus v. Crickett/* a leading English case, it was held 
 in substance, that the master is not liable for an injury willfully 
 committed by his servant while engaged in the master's business, 
 without the direction or assent of the master. In that case it was 
 held that a master was not liable in trespass for the willful act of 
 his servant in driviiig the master's carriage against another with- 
 out the master's direction or assent. Lord Kenyon said that when 
 the servant quitted sight of the object for which he was employed, 
 and, without having in view his master's orders, pursued the ob- 
 ject which his own malice suggested, he no longer acted in pur- 
 suance of the authority given him, and it was deemed, so far, a 
 willful abandonment of his master's business. This doctrine is 
 very generally recognized in this country, but the courts do not al- 
 ways agree in applying it to particular cases.^'' If the act for which 
 it IS sought to hold the master liable was in fact done by the serv- 
 ant in the course of 'his employment, the fact that he acted will- 
 fully and maliciously will not prevent liability from attaching to 
 the master. As was said by the Ohio court: "Where a person is 
 injured by the act of a servant, done in the course ot his employr 
 ment, we see no good reason why the motive or intention ,of the 
 servant should operate to discharge the piaster from liability. If 
 the nature of the injurious act is such as to make thernaster liable 
 for its consequences, in the absence of the particular intention, it 
 is not perceived how the presence of such intention can be held 
 to excuse the master." ^* It has repeatedly been held that if the 
 
 a passenger, the master would not be responsible for the Injury because it 
 would not be an act done in his business, but a departure therefrom by the 
 servant, to effect some purpose of his own." In Garretzen v. Duenckel, 50 Mo. 
 104, 11 Am. Rep. 405, a clerk in the gun store, while engaged during the pro- 
 prietor's absence, in exhibiting a gun to a customer, loaded it, contrary to the 
 proprietor's orders. In doing so, it was accidentally discharged, and shot and 
 wounded a person on the opposite side of the street. The proprietor was hejld 
 responsible. See, also, Grant v. Singer Mfg. Co., 190 Mass. 489, 77 N. E. 480, 
 6 L. 11. A. (N. S.) 567, and Sharp v. Erie R. Co., 1,'?4 N. Y. 100, 76 N. E. 923, 
 6 Ann. Gas. 250, where the servant disregarded the master's orders. 
 
 16 1 East. 106. 
 
 i? Foster v. Bank, 17 Mass. 508, 9 Am. Dec. 168; Wright v. Wilcox, 19 
 Wend. (-N. Y.) 343, 32 Am. Dec. 507 ; Vanderbllt v. Turnpike Co., 2 N. Y. 479, 
 51 Am. Dec. 315; Fraser v. Freeman, 43 N. Y. 566, 3 Am. Rep. 740; Isaacs 
 V. Railroad Co., 47 N. Y. 122, 7 Am. Rep. 418 ; Cox v. Keahey, 36 Ala. 340, 76 
 Ajm. Dec. 325 ; New Orleans, J. & G. N, R. Co. v. Harrison, 48 Miss. 112, 12 
 Am. Rep. 356; Neville v. Chicago & A. R. Oo„ 210 111. App. 168; Tuller v. 
 Voght, 13 111. 277 ; Oxford v. Peter, 28 111. 434. 
 
 18 Passenger R. Co. v. Young, 21 Ohio St. 518, 8 Am. Rep. 78. 
 
650 MASTER AND SERVANT (Ch. 16 
 
 conductor or other employes on a railroad train or on a boat unlaw- 
 fully assault and injure a passenger, or even a trespasser, the rail- 
 road company or owner of the boat is liable, notwithstanding the 
 servant acted willfully and from personal and malicious motives.^' 
 His conduct is none the less in the course of his employment be- 
 cause of his motive. The rule would be different if the conductor 
 or brakeman on a railroad train should willfully and maliciously as- 
 sault or otherwise injure a mere stranger, to whom the company 
 owed no duty at all,^" or if the tortious act was conjmitted while 
 the servant was not .on duty.^^ 
 
 A railroad company has been held liable for injuries caused by 
 the wrongful act of its locomotive engineer in blowing the whistle, 
 
 I "Passenger E. Co. v. Young, 21 OMo St. 518, S Am. Rep. 78; Bryant v. 
 Rich, 106 Mass. ISO, 8 Am. Rep. 311 ; Sherlej' v. Billings, 8 Bush. (Ky.) 147, 
 8 Am. Eep. 451; Rounds v. Railroad Co., 64 N. Y. 129, 21 Am. Rep. 597; 
 Shea V. Railroad Co., 62 N. Y. 180, 20 Am. Rep. 480; Higgins t. Railroad 
 Co., 46 N. Y. 23, 7 Am. Rep. 293; Hofei](ian v. Railroad Co., 87 N. Y. 25, 41 
 Am. Rep. 337; Dwinelle v. Railroad Co., 120 N. Y. 117, 24 N. E. 319, 8 L. 
 R. A. 224, 17 Am. St. Rep. 611 ; Chicago & E. R. Co. v. Flexman, 103 111. 546, 
 42 Am. Rep. 33; North Chicago City Ry. Co. v. Gastka, 128 111. 613, 21 N. E. 
 522, 4 L. R. A. 481; Goddard v. Railway Co., 57 Me. 202, 2 Am. Rep. 39; 
 Hanson v. Railway Co., 62 Me. 84, 16 Am. Rep. 404; McKinley v. Railroad 
 Co., 44 Iowa, 314, 24 Am. Rep. 748; New Orleans, St. L. & C. R. Co. v. Burke, 
 53 Miss. 200, 24 Am. Rep. 689; Philadelphia, "W. & B. Rw Co. v. Larkin, 47 
 Md. 155, 28 Am. Rep. 442 ; Carter v. Railway Co., 98 Ind. 552, 49 Am. Rep. 
 780. In eraker v. Railway Co., 36 Wis. 657, 17 Am. Rep. 504, a railroad com- 
 pany was held liable where its conductor kissed a female passenger against 
 her will. In Isaacs v. Railroad Co., 47 N. Y. 122, 7 Am. Rep. 418, the plaintife, 
 while a passenger on a street car, and wishing to alight, passed out upon the 
 platform, and asked the conductor to stop the car, telling him she would not 
 get out until the car should come to a full stop. The conductor thereupon, 
 while the car was in motion, threw her from the car with great violence, 
 breaking her leg. It was held that this was a wanton and willful trespass, for 
 which the company was not liable. This case was severely criticized, and 
 has been, in effect, overruled by the later New York cases. See Hoffman v. 
 Railroad Co., 87 N. Y. 25, 41 Am. Rep. 337 ; Dwinelle v. Railroad Co., 120 N. 
 Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611 ; Shea v. Railroad 
 Co., 62 N. Y. 180, 20 Am. Rep. 480. 
 
 20 Chicago & E. R. Co. v. Flexman, 103 111. 546, 42 Am. Eep. 33; New 
 Orleans, J. & G. N. R. Co. v. Harrison, 48 Miss. 112, 12 Am. Rep. 356; Marion 
 V. Railroad Co., 59 Iowa, 428, 13 N. W. 415, 44 Am. Rep. 687 ; Central Ry. Co. 
 V. Peacock, 69 Md. 257, 14 Atl. 709, 9 Am. St. Eep. 425; Williams v Car 
 Co., 40 La. Ann. 87, 3 South. 631, 8 Am. St. Rep. 512. 
 
 21 St. Louis & S. F. R. Co. v. Wyatt, 84 Ark. 193, 105 S. W. 72. See, also 
 Southern Ry. Co. v. Power Fuel Co., 152 Fed. 917, 82 C. C. A. 65, 12 L.E. a! 
 (N. S.) 472, where the servant while off duty was guilty of negligence. 
 
' §§ 278-279) mastee's liability to third peksons 651 
 
 or allowing steam to escape, and thereby frightening horses, though 
 he acted willfully and maliciously.^'' 
 
 Relation of Master and Servant Must Exist 
 
 The person by whom the injury was caused must have been the 
 servant of- the person whom it is sought to charge, and in his em- 
 ploy, at the time of the injury.''* It is, not enough, in order to 
 establish a liability of one person, for the negligence of another, 
 to show that the person whose negligence caused the injury was at 
 the time actjng under an employment by the person who is sought 
 to be charged. It must be shown, in addition, that the employ- 
 ment was of such a character as to create the relation of master 
 and servant between ' them. "Unless the relation of master and 
 servant exists, the law will not impute to one person the negli- 
 gent act of another." "* As has heretofore .been pointed out, a mere 
 
 I 
 
 22 Toledo, W. & W. Ry. Co. v. Harmon, 47 111. 298, 95 Am. Dec. 489; Chica- 
 go, B. & Q. R. Co. V. Dickson, 63 111. 151, 14 Am. Rep. 114; Nashville & C. 
 R. Co. V. Stames, 9 Heisk. (Tenn.) 52, 24 Am. Rep. 296. 
 
 23 See Sawyer v. Martins. 25 111. App. 521; Sexton v. New York Cent. & 
 H. R, R. Co., 134 App. Div. 678, 99 N. Y. Supp. 1111 ; Marsh v. Hand, 120 N. 
 Y. 315, 24 N. E. 463. "It is not necessary that he should be shown to have 
 heen in the general employment of the defendant, nor that he should be 
 under any special engagement of service to him, or entitled to receive com- 
 pensation from him diifectly. It is enough that at the time of the accident 
 he was in charge of the defendant's property by his assent and authority, 
 engaged In his business, and, in respect to that property and business, un- 
 der his control. The fact that there is an intermediate party, Iri whose gen- 
 eral employment the person whose acts are in question is engaged, does not 
 prevent the principal from being held liable for the negligent conduct of the 
 subagent or underservant, unless the relation of such intermediate party to 
 the subject-matter of the business in which the underservant is engaged be 
 such as to give him exclusive control of the means and manner of its ac- 
 complishment, and exclusive direction of the persons employed therefor." 
 Kimball v. Cushman, 103 Mass. 194, 4 Am. Rep. 528. And see Bwan v. Lin- 
 pincott, 47 N. J. Law, 192, 54 Am. Rep. 148; Houseman v. Philadelphia 
 Transportation & Lighterage Co. (C. C.) 141 Fed. 385. If the master hires the 
 services of his servant to another temporarily, but retains control, he re- 
 mains the master, and is liable for the acts of the servant in the course of 
 the employment ; and it can make no difference that the services of this 
 particular servant were requested by the third party. This question arises 
 where a person hires a team from another, together with the driver. Ordi- 
 narily, the driver remains the servant of the owner of the team. See Quar- 
 man v. Burnett, 6 Mees. & W. 499 ; Joslin v. Ice Co., 50 Mich. 516, 15 N. W. 
 887, 45 Am. Rep. 54; Frerker v. Nicholson, 41 Colo. 12, 92 Pac. 224, 13 L. 
 R. A. (N. S.) 1122, 14 Ann. Cas. 730; Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 
 304; Norris v. Eohler, 41 N. Y. 42; Crockett v. Calvert, 8 Ind.. 127; Huff v. 
 Ford, 126 Mass. 24, SO Am. Rep. 645; Hershberger v. Lynch (Pa.) 11 AtU 
 642 ; Muse v. Stern, 82 Va. 33, 3 Am. St. Rep. 77. 
 
 2* King V. Railroad Co., 66 N, Y. 181, 23 Am, Rep. 37; Bassi v. Orth, 58 
 
■652 MASTER AND SERVANT (Ch. 16 
 
 volunteer may, by assisting the servants of another in the service 
 of the master, either at the request or without the request of such 
 servants, stand in the relation of a servant for the time being, 
 and may be regarded as assuming all the risks incident to the 
 business.^' Whether 'or not such a volunteer becomes a servant, 
 so that the master of the other servants will be liable for his wrong- 
 ful acts or negligence in the course of the employment, must be- 
 pend upon the authority of the other servants to thus employ as- 
 sistance. If they had such authority, express or implied, the master 
 is liable; otherwise he is not."' 
 
 Independent Contractors 
 
 \ There is a wide difference between a servant and an independ- 
 ent contractor. If a person contracts with another, who is engaged 
 in an independent employment, for the doing of certain work by 
 the latter, but does not personally interfere or give directions re- 
 specting the manner of the work, the relationship of master and 
 servant does not exist, but the party employed is an independent 
 contractor. "If one renders service, in the course of an occupa- 
 tion, representing the will of his employer only as to the result of 
 his work, and not as to the means by which it is accomplished, it 
 is an independent employment." ^' The fact that the contractor is 
 
 Misc. Rep. 372, 109 N. T. Supp. 88; Partes v. Seasongood (C. C.) 1S2 Fed. 583. 
 The test of one's liability for the negligent act or omission of his alleged 
 servant is his right and power to command and control his imputed agent 
 in the performance of the causal act or omission at the very instant of the 
 performance or neglect. Standard Oil Co. v. Parkinson, 152 Fed. 681, 82 C. 
 O. A. 29. 
 
 2 5 Ante, p. 623. 
 
 ^'i See Althorf v. Wolfe, 22 N. Y. 355 ; Thyssen v. Davenport Ice & Cold 
 Storage Co., 134 Iowa, 749, 112 N. W. 177, 13 L. R. A. (N. S.) 572 ; Cooper 
 V. Lowery, 4 Ga. App. 120, 60 S. B. 1015. But he may be liable for the neg- 
 ligence of the servant in permitting the Stranger to assist him. Thyssen v. 
 Davenport Ice & Cold Storage Co., 134 Iowa, 749, 112 N. W. 177, 13 L. K. A. 
 (N. S.) 5172. 
 
 2 7 Harrison v. Collins, 86 Pa. 153, 27 Am. Rep. 699. And see HiUiard v. 
 Richardson, 3 Gray (Mass.) 349,' 63 Am. Dec. 743 ; Blake v. Ferris, 5 N. Y. 
 48, 55 Am. Dec. 304; Pack v. Mayor, etc., 8 N. Y. 222; HoUenback v. Hardin, 
 205 111. App. 528; Cole v. City of Durham, 176 N. C. 289, 97 S. B. 33; 
 Clihchfleld Coal Corporation v. Redd, 123 Va. 420, 96 S. B. 836 ; King v. Rail- 
 road Co., 66 N. T. 181, 23 Am. Rep. 37 ; Marsh v, Hand, 120 N. T. 315, 24 N. E. 
 463; Metzinger v. New Orleans Board of Trade, 120 La. 124, 44 South. 1007; 
 WUmot V. McPadden, 79 Conn. 367, 65 Atl. 157; McBrlde v. Jerry Madden 
 Shingle Co., 173 Mich. 248, 138 N. W. 1077; McHarge v. M. M. Newcomer 
 & Co., 117 Tenn. 595, 100 S. W. 700, 9 L. R. A. (N. S.)'298; Scammon v City 
 
§§ 278-279) master's liability to third persons 653 
 
 paid by the day does not necessarily destroy the independent 
 character of the employment.^' 
 
 It is well settled, both in England and in this country, that a 
 person who employs an independent contractor to do work for him 
 is not liable for the wrongful acts or neglect of the contractor or 
 his servants in the performance of the work, where the work to 
 be done under the contract is lawful.^^ In Harrison v. Collins '" 
 
 of Chicago, 25 111. 424, 79 Am. Dec. 334; HoUenteck v. Winnebago Co., 95 
 m. 148, 35 Am. Rep. 151; Kepperly v. Ramsden, 83 111. 354; Schwartz v. 
 Gilmore, 45 111. 455, 92 Am. Dec. 227; Moore v. Sanhorne, 2 Mich. 519, 59 
 Am. Dec. 209; Barry v. City of St. Louis, 17 Mo. 121; Powell v. Construc- 
 tion Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925. Whether a person 
 employed to do certain work is to he regarded as a servant or as an inde- 
 pendent contractor depends mainly upon whether, under the contract, the 
 employer retains the power of directing and controlling the work. Where 
 the employ^ is put in exclusive possession, and has exclusive control, furnish- 
 ing his own assistants, and executing the work in detail, clear of any super- 
 vision, he is an independent contractor. It is otherwise if the employer re- 
 tains the direction and control of the york. Johnson v. Western & A. R. Co., 4 
 <3a. App. 131, 60 S. B. 1023 ; Kampmann v. Rothwell (Tex. Civ. App.) 107 S. 
 W. 120; and cases above cited. Or if the work is done according to the di- 
 rection of, or specifications furnished by, the employer. Hedsti*om v. Union 
 Forest Co., 7 Cal. App. 278, 94 Pae. 386; Kansas City, M. & O. Ry. Co. v. 
 Loosley, 76 Kan. 103, 90 Pac, 990. One who, exercising an independent em- 
 ployment, contracts to do vyork according to his own methods, without being 
 subject to the employer's control, except as to the result is an independent 
 contrattor. Chicago, R. I. & P. Ry. Co. v. Bennett, 36 Okl. 358, 128 Pac. 
 705. In Harrison v. Collins, 86 Pa. 153, 27 Am. Rep. 699, the owners of 
 a sugar refinery employed a rigger to remove machinery from a railroad 
 car to their refinery; but, though they paid him by the day, they neither 
 interfered with nor directed the manner of the work. It was held that the 
 rigger was an independent contractor, and not a servant. Among other em- 
 ployes who have been held to be independent contractors may be mentioned: 
 A public licensed drayman, employed to haul goods, De Forrest v. Wright, 2 
 Mich. 368; lessee of coal mine, Bokoshe Smokeless Coal Co. v. Morehead, 
 34 Okl. 424, 126 Pac. 1033; a contractor employed to erect a build- 
 ing, Hilliard v, Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743; Edmundson 
 V. Coca-Cola Co. (Tex. Civ. App.) 150 S. W. 273 ; a plumber employed to re- 
 pair water pipes, Bennett v. Truebody, 66 Cal. 509, 6 Pac. 829, 56 Am. Rep. 
 117; contractor employed by railroad company to build road, or to grade, 
 Louisville, N. O. & T. R. Co. v. Conroy, 63 Miss. 5)62, 56 Am. Rep. 835. A per- 
 son employed by a railroad company to clear off and burn brush and rubbish 
 from its right of way, at a certain sum per mile, v.'bo hires, pays, and controls 
 his own help, is not a servant of the company, but an independent contractor. 
 St. Louis, I. M. & S. Ry. Co. v. Tonley (Ark.) 13 S. W. 333. 
 
 2 8 Harrison v. Collins, 86 Pa. 153, 27 Am. Rep. 699; Forsyth v. Hooper, 11 
 Allen (Mass.) 419; Corbin v. American Mills, 27 Conn. 274, 71 Am. Dec. 63. 
 '2»Reedie v. Railway Co., 4 Exch. 244; Harrison v. Collins, 86 Pa. 153, 27 
 
 so 86 Pa. 153, 27 Am. Rep. 699. ~~ 
 
654 MASTER AND SERVANT (Ch. 16 
 
 the defendants, owners of a sugar refinery, had employed a rigger 
 to remove machinery from a railroad car to their refinery. In 
 doing the work he opened a coal hole in the sidewalk, and left it 
 open a few minutes after finishing the work, and a child fell into 
 it and was injured. It appeared that the defendants neither direct- 
 ed nor interfered with the manner of the work, and it was there- 
 for held that, as the rigger was an independent contractor, they 
 were not liable for the injury. On the same principle, it has been 
 held that one who employs a public, licensed drayman to haul a lot 
 of barrels of goods is not liable for injuries inflicted by the lattef 
 by rolling a barrel against a person. ^^ And the owner of land, who 
 employs an independent contractor to erect or repair a building on' 
 his lot, is not liable for injuries resulting from the contractor's de- 
 posit of planks in the highway, or other negligence on the part of 
 the contractor or his servants.^" 
 
 If the work contracted for is unlawful, as where it naturally con- 
 stitutes or creates a public nuisance, then the rule exempting the 
 employer does not apply, but both the employer and the contractor 
 are liable for injuries resulting therefrom.^' Thus, if a person who 
 is not authorized to excavate in a highway employs a contractor to 
 do so, he is liable for injuries inflicted by the contractor in doings 
 the work, though he would not be so liable if he had first obtained a 
 license to excavate.^* 
 
 Nor does the rule apply where a public duty is imposed by law 
 upon a public officer or public body, and the officer or body charged 
 
 Am. Eep. 699; CufC v. Railroad Co., 35 N. J. Law, 17, 10 Am. Rep. 205; Bil- 
 liard V. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743; King v. Rail- 
 road Co., 66 N. Y. 181, 23 Am. Rep. 37 ; Blake v. Ferris, 5 N. Y. 48, 55 Am. 
 Dec. 304; Stevens v. Armstrong, 6 N. Y. 435; Hexamer v. Webb, 101 N. 
 Y. 377, 4 N. E. 755, 54 Am. Rep. 703 ; E.iton v. Railway Co., 59 Me. 520, 8 
 Am. Rep. 430; De Forrest v. Wright, 2 Mich. 368 ;i Clark v. Railroad Co., 
 28 Vt.,103; Bennett v. Truebody, 66 Cal. 509, 6 Pac. 329, 56 Am. Rep. 117. 
 
 31 De Forrest v. Wright, 2 Mich. 368. 
 
 32 Hilliard v. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743; McCarthy 
 V. Second Parish, 71 Me. 318, 36 Am. Rep. 320 ; Forsyth v. Hooper, 11 Allen 
 (Mass.) 419 ; Pearson y. Cox, 2 C. P. Div. 369. 
 
 3 3Congreve v. Smith, 18 N. Y. 79; Creed v. Hartmann, 29 N. Y. 591, 86 
 Am. Dec. 341 ; Falender v. ^ Blackwell, 39 Ind. App. 121, 79 N. B. 393 ; 
 McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, 100 S. W 700 9 L. R A 
 (N. S.) 298. ' ■ * 
 
 3* Creed v. Hartmann, 29 N. Y. 591, 86 Am. Dec. 341. But if the inde- 
 pendent contractor is himself guilty of the unlawful act, without the knowl- 
 edge or authority of the employer, the latter is not liable. Symons v. Road 
 Directors for Allegany County, 105 Md. 254, 65 AtJ. 1067. 
 
§§ 280-281) servant's liability to third persons 655 
 
 with the duty commits its performance to another. For instance, 
 a municipal corporation charged by statute with the duty to keep 
 the streets in repair cannot escape liability for a negligent perform- 
 ance of this duty on the ground that the immediate negligence was 
 that of a contractor who had been intrusted with its performance."" 
 
 SERVANT'S LIABILITY TO THIRD PERSONS 
 
 280. A servant is not personally liable to third persons on contracts 
 
 made by him in the name or on behalf of the master, unless 
 he failed to disclose the existence of his principal, or con- 
 tracted without authority. 
 
 281. A servant is ordinarily personally liable to third persons for 
 , torts committed by him, though committed by his master's 
 
 direction. But he is not liable to third persons for mere 
 nonfeasance. 
 
 Ordinarily a servant is not personally liable on' authorized con- 
 tracts entered into by him in the name, of his master, or .on his 
 behalf.^" It is otherwise if he contracts without disclosing either 
 his agency,'' or if he exceeds his authority.^' The liability depends 
 upon principles of the law of agency, and is not different from the 
 liability of any other agent. 
 
 A servant is liable for criminal acts committed by him, though 
 his master may have commanded him to commit them. In such a 
 case both would be liable. In like manner a servant, as well as the 
 master, is civilly liable for a tort committed by the servant by 
 the master's command. "Although there are some cases which fa- 
 vor the idea that a servant is not liable for a wrong act, when done 
 by order of his master, these cases, I apprehend, are not law. The 
 idea that a command by a superior is to be admitted as a justifica- 
 tion for an injtiry is admissible only in the case of a wife who does 
 
 3 5 King V. Railroad Co., 66 N. Y. 181, 23 Am. Rep. 37; Storrs v. City of 
 TJtica, 17 N. X. 104, 72 Am. Deic. 437. 
 
 3 8 Clark, Cont. 737; Jefts v. Yqrk, 4 Oush. (Mass.) 371, 50 Am. Dec. 791; 
 Bailey v. Cornell, 66 Mich. 107, 33 N. W. 50. 
 
 37 Clark, Cont. 740, 742, and cases there Cited ; Kay ton v. Barnett, 116 N. 
 T. 625, 23 N. E.. 24; Holt v. Ross, 54 N. Y. 472, 13 Am. Rep. 615; Wheeler 
 T. Reed, 36 111. 81 ; Porter v. Day, 44 111. App. 256 ; Hufebard v. Ten Brook, 
 124 Pa. 291, 16 Atl. 817, 2 L. R. A. 823, 10 Am. St. Rep. 585; Welch v. Good- 
 ■win, 123 Mass. 71, 25 Am. Rep. 24. 
 
 88 Clark, Cont. 738, and cases there cited. 
 
656 I MASTER AND SERVANT (Ch. 16 
 
 an injury by the command and in the company of her husband. A 
 servant is bound to perform the lawful commands of his master, but 
 not those which are unlawful. Such a principle would justify a 
 servant in committing any crime. Even if the servant be ignorant 
 that he is committing any injury, yet, if the thing done is an injury, 
 he is liable, though done by the command of the master." ^' The 
 servant is not personally liable to third persons for mere nonfea- 
 sance. In such a case he is liable to the master, and the master 
 alone is liable to third persons.*" But for negligence, as distin- 
 guished from mere nonfeasance, the servant is personally liable.*^ 
 
 S9 I^eeve, Dom. Rel. (4th Ed.) 455. 
 
 ^oDelaney v. Rochereau, 34 La. Ann. 1123, 44 Am. Bep. 456; Scheller v. 
 Silbermintz, 50 Misc. E«p. 175, 98 N. Y. Supp. 230; McGinnis v. Chicago, R. 
 I. & P. Ky. Co., 200 Mo. 347, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. 
 Rep. 661, 9 Ann. Cas. 656; Carey v. Rochereau ((?. C.) 16 Fed. 87; Albro v. 
 Jaquith, 4 Gray (Mass.) 99, 64 Am. Dec. 56. But this case was afterwards 
 overruled in Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437, on the ground 
 that the facts did not bring it within the principle. The principle Itself, how- 
 ever, was conceded in the latter ease. 
 
 *i Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437. It was held in this 
 case, overruling Albro v. Jaquith, 4 Gray (Mass.) 99, 64 Am. Dec. 56, that a 
 servant is personally liable to a third person for negligence In so placing ap- 
 pliances as to cause injury to him. The case overruled had erroneously held 
 that a servant was not liable for unskillfuUy and negligently allowing in- 
 flammable gsfe to escape. In Osborne v. Morgan, the court, by Gray, C. J., 
 said : "It is often said in the books that an agent is responsible to third per- 
 sons for misfeasance only, and not for nonfeasance. And it is doubtless true 
 that if an agent never does anything towards carrj'ing out his contract with 
 his principal, but wholly omits and neglects to do so, the principal is the only 
 person who can maintain any'action against him for the nonfeasance. But, if 
 the agent once actually undertakes and enters upon the execution of a par- 
 ticular work, it is his duty to use reasonable care in the manner of execut- 
 ing it, so as not to cause any injury to third persons which may be the natural 
 consequeuf^e of his acts; and he cannot, by abandoning its execution mid- 
 way, and leaving things in a dangerous condition exempt himself from lia- 
 bility to any person who suffers injury by reason of his having so left them 
 without proper safeguards. This is not nonfeasance ; but it is misfeasance, 
 doing improperly." And see Parsons v. Winchell, 5 Cush. (Mass.) 592, 52 Am. 
 Dec, 745; Bell v. Josselyn, 3 Gray (Mass.) .309, 63 Am. Dec. 741; Nowell v. 
 Wright, 3 Allen (Mass.) l66, 80 Am. Dec. 62; Horner v. Lawrence, 37 N. J. 
 Law, 46; Hinds v. Overacker, 66 Ind. 547, 32 Am. Rep. 114; Mayberry v. 
 Northern Pac. Ry. Co., 100 Minn. 79, 110 N. W. 356, 12 L. R. A. (N. S.) 675^ 
 10 Ann. Cas. 754; Southern Ry. Co. v. Reynolds, 126 Ga. 657, 55 S. E. 1039; 
 Whalen v. Pennsylvania R. Co., 73 N. J. Law, 192, 63 Atl. 993; McGinnis v'. 
 Chicago, R. I. & P. Ry. Co., 200 Mo. 347, 98 S. W. 590, 9 L. Ri A. (N. S.) 88o] 
 118 Am. St. Rep. 661, 9 Ann. Cas. 656 ; Scheller v. Silbermintz, 50 Misc. Rep'. 
 175, 98 N. Y. Supp. 230. 
 
TABLE OF CASES CITED 
 
 [the figures eefeb to pages] 
 
 A V. B, 30. 
 
 A. Alschuler & Sons v. Anderson, 332. 
 Aaron v. Harley, 482. 
 Abbe V. Abbe, 105. 
 Abbot V. Bayley, 158. 
 Abbott V. Abbott, SO, 105, 106. 
 Abbott V. Converse, 334, 359, 360, 363, 
 
 364, 388. 
 Abbott V. Creal, 542. 
 Abbott V. Fidelity Trust Co., 233. 
 Abbott V. Hancock, 384. 
 Abel V. Canal Co., 612. 
 Abies V. Abies, 140. 
 Abney v. De Loach, 313. 
 Abom V. Janis, 412, 492. 
 Abrahams v. Kidney, 376, 380, 383, 
 
 384. 
 Abrams v. U. S. Fidelity & Guaranty 
 
 Co., 413, 428. 
 Achilles v. Achilles, 223, 224, 225. 
 Acken's Estate, In re, 888. 
 Ackerman v. Ackerman, 243, 245, 246, 
 
 248. 
 Ackerman v. Hawkins, 508. 
 Ackermann v. Haumueller, 444. 
 Ackliu Stamping Co. v. Kutz, 639. 
 Adair v. Arpndt, 83, 160. 
 Adair v. Shaw, 423. 
 Adams' Appeal, 404. 
 Adams v. Adams, 227, 240, 241, 244, 
 
 264, 284, 288, 301, 304; 316, 350. 
 Adflms V. Beall, 475, 479, 492, 493, 
 
 514. 
 Adams v. De Dominques, 469. 
 Adams v. Dickson, 216. 
 Adams v. Fitzpatrlck, 577. 
 Adams v. Gleaves, 445. 
 Adams v. Iron Cliffs Co., 631, 632. 
 Adams v. Lain, 119. 
 Adams v. McKay, 305. 
 Adams v. Maekey, 191. 
 Adams v. Main, 114, 119, 120. 
 Adams v. Merrill, 316. 
 Adams v. Palmer, 3, 5. 
 
 TIFF.P.& D.Eei..(3d Ed.)— 42 (657) 
 
 Adams v. Scott, 18, 19. 
 
 Adams v. State, 94. 
 
 Adams v. Swift, 227. 
 
 Adams v. Wm. Cameron & Co., 61. 
 
 Adams' Estate, In re, 216, 219, 280, 
 
 301. 
 Adams Paper Co. v. Cassard, 205. 
 Adams & Burke Co. v. Cook, 360. 
 Addieks v. Chrlstoph, 613. 
 Ades V. Caplin, 147, 148. 
 Adger v. Ackerman, 51, 53, 62. 
 Adoue V. Spencer, 199. 
 Adye V. Feuilleteau, 432. 
 JStna Indemnity Co. v. State, -458. 
 .iEtna Ins. Co. v. Resh, 148. 
 .iEtna Life Ins. Co. v. Nexsen, 598. 
 Affick's Estate, In re, 417. 
 Agnew, Appeal bf, 240. 
 Ago V. Canner, 202. 
 Agresta v. Stevenson, 625. 
 Aguilar v. Lavaro, 57. 
 Ahrenfeldt v. Ahrenfeldt, 263. 
 Ahrens v. Ahrens, 326, 564, 566. 
 Ainger v. White's Adm'x, 193. 
 Ainslie v. Martin, 561. 
 Akin V. Thompson, 159. 
 Albany Fire Ins. Co. v. Bay, 165. 
 Albee v. Albee, 89, 264. 
 Albee v. Carpenter, 133. 
 Albert V. Perry, 404. 
 Albin V. Lord, 205. 
 Albright v. Albright, 201. 
 Albring v. Ward, 310. 
 Albro V. Jax}uith, 656. 
 Alcon V. Koons, 443.^ 
 Aldrich v. Bennett, 360. 
 Aldrieh v. Grimes, 500. 
 Aldrich v. Steen, 19. 
 Aldridge, Ex parte, 261, 263. 
 Aldridge v. Aldridge, 64. 
 Alexander, In re, 403. 410. 
 Alexander v. Alexander, 196, 197, 430. 
 Alexander v. Buffington, 436. 
 Alexander v. Crittenden, 134. 
 I Alexander v. Hard, 141. 
 
658 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Alexander v: Morgan, 184. 
 
 Alexander v. Sbalala, 234. 
 
 Alexander's Adm'r v. Alexander, 308. 
 
 Alexander's Estate, In re, 447. 
 
 Alexier v. Matzke, 532. 
 
 Alferitz v. Arrivillaga, 234. 
 
 Alford V. Cook, 605, 606. 
 
 Alford V. State, 557. 
 
 Alfrey v. Colbert, 510, 512. 
 
 Alger V. Lowell, 557. 
 
 Alixanian y. Allxanian, 33. 
 
 AUard, In re, 454. 
 
 Allard's Guardianship, In re, 421, 446. 
 
 AUcock V. AUcock, 117. 
 
 Allen, Appeal of, 12. 
 
 Allen, Ex parte, 536. 
 
 Allen V. Allen, 11, 137, 148, 151, 354, 
 
 577. 
 Allen V. Anderson & Anderson, 503. 
 ■ Allen V. BerryhlU, 540, 544. 
 Allen V. Burlington. C. R. & N. R. 
 
 Co., 612. 
 Allen V. Crosland, 457. 
 Allen V. Gaillard, 433. 
 Allen V. Hall, 50. 
 Allen V. Hanks, 196, 197. 
 Allen V. Jacobi, 324. 
 Allen V. Maronne, 597. 
 Allen V. Mutual Compress Co., 582. 
 Allen V. National Bank of Tifton, 211. 
 Allen V. Poole, 503, 506. 
 Allen V. Tiffany,' 458. 
 Allen V. Whitlark, 597. 
 Allen's Estate, In re, 398, 403. 
 AUes V. Lyon, 148. 
 Alley. V. Winn, 173, 179. 
 Allfrey v. AUfrey, 447. 
 Ailing V. Ailing, 331. 
 AUis V. Billings, 539, 544. 
 Allison V. Bryan, 316. 
 AUman v. Owen, 444. 
 Almond v. Almond, 60. 
 Almond v. Bonnell, 196, 197. 
 Almy V. Wilcox, 177. 
 Alpaugh V. Wood, 602. 
 Alsberry v. Hawkins, 561. 
 Alschuler & Sons v. Anderson, 332. 
 Alsdurf V. Williams, 209. 
 Alston V. Alston, 396, 401. 
 Alston V. Boyd, 539. 
 Alston V. Munford, 444. 
 Alsworth V. Cordtz, 475. 
 Althen v. Tarbox, 166. 
 Althorf V. Wolfe, 652. 
 Altman & Co. v. Durland, 173, 175. 
 Alvey V. Hartwig, 325, 327. 
 Ambrose, In re, 39. 
 Ambrose v. Kerrison, 182. 
 Amend t. Jahns, 152. 
 
 Ameripan Bible Soc. v. Price, 552. 
 American Bonding Co. v. People, 444-, 
 
 457. 
 American Brake Shoe & Foundry Co. 
 
 y. Hank, 619. 
 American Brake Shoe & Foundry Co. 
 
 V. Jankus, 620. 
 American Brake Shoe & Foundry Co. 
 
 V. Toluszis, 613. 
 American Bridge Co. v. Seeds, 614, 
 
 629. 
 American Car & Foundry Co. v. 
 
 Adams, 630. 
 American China Development Co. v. 
 
 Boyd, 597. 
 American Circular Loom Co. v. Wil- 
 son, 603. 
 American Ice Co. v. Fitzhugh, 635. 
 American Mill Co. v. Industrial Board 
 
 of 111., 81, 82. 
 American Mortg. Co. of Scotland v. 
 
 Wright, 499, 500, 505. 
 American Seamen's Friend Soc. v. 
 
 Hopper, 553. 
 American Smelting & Refining Co. v. 
 
 MeGee, 618. 
 American Stay Co. v. Delaney, 603. 
 American Steel & Wire Co. v. Tynon, 
 
 376. 
 American Surety Co. v. Sandberg, 
 
 154, 431. 
 American Tobacco Co. v. Polisco, 521. 
 Amerieus Gas & Electric Co. v. Col- 
 man, 23, 61. 
 Ames V. R. Co., 643. 
 Amick V. CHara, 546. 
 Ammons v. People, 458. 
 Amos V. American Trust & Savings 
 
 Bank, 533, 539. 
 Amos V. Atlanta Ry. Co., 370. 
 Amspoker v. Amsi)oker, 239. 
 Anders v. Anders, 10. 
 Anderson v. Anderson, 13, 108, 133, 
 
 197, 278, 279. 
 Anderson v. Anderson's Estate, 417, 
 
 536. 
 Anderson v. Aupperle, 382, 384. 
 Anderson v. Blakesly, 313, 319. 
 Anderson v. Citizens' Nat. Bank, 161. 
 Anderson v. French, 320. 
 Anderson v. Great Northern R. Co., 
 
 612. 
 Anderson v. Hicks, 556. 
 Anderson v. Lumber Co., 617. 
 Anderson v. Lunker, 331. 
 Anderson v. Milliken Bros., 616. 
 Anderson v. R. Co., 618. 
 Anderson v. Silcox, 446. 
 Anderson v. Smith, 184. 
 
CASES CITED 
 [The figures refer to pages] 
 
 659 
 
 Anderson v. Soward, 505. 
 Anderson v. State, 340, 343. 
 Anderson v. Thomas, 458. 
 Anderson's Adm'r v. Smith, 401. 
 Andrade v. Andrade, 258. 
 Andrecski v. New Jersey Tube Co., 
 
 620. 
 Andress v. Weller, 559. 
 Andrews, In re, 343, 408. 
 Andrews v. Andrews, 3, 4, 6, 244. 
 Andrews v. Boedecker, 647. 
 Andrews v. Green, 646. 
 Andrews v. Jones, 216, 221. 
 Andrews v. Page, 61. 
 Andricus' Adm'r v. PinevlUe Coal Co., 
 
 574. 
 Andrino v. Yates, 403. 
 Anest V. Columbia & P. S. R. Co., 621, 
 
 634.. 
 Angelo V. People, 529, 530. 
 Anglo-CaUfornian Bank v. Ames, 542, 
 
 546. 
 Anichini v. Anicbini, 273, 286. 
 Ankeney v. Hannon, 211. 
 Annin v. Annin, 236. 
 Anonymous, 11, 18, 29, 30, 59, 60, 90, 
 
 91, 243, 250, 271, 280, 281, 312, 349, 
 
 409, 461. 
 Anonymous v. Anonymous, 29. 
 Anthony v. Norton, 382, 384. 
 Antioch Coal Co. v. Hockey, 616. 
 Anvil Min. Co. v. Humble, 582. 
 Appell V. Appell, 475. 
 Appleby v. Appleby, 216, 217, 219. 
 Applegate v. Applegate, 32, 43. 
 Appleton V. Warner, 34. 
 Appieton Waterworks Co. v. City of 
 
 Appleton, 577. 
 ■ Arado v. Arado, 28. 
 Archbell v. Arehbell, 239, 241. 
 Archer v. Hudson, 389. 
 Archer-Foster Const. Co. v. Vaughn, 
 
 624. 
 Arends v. Grand Rapids Ky. Co., 635. 
 Arizona Eastern R. Co. v. Carillo, 
 
 506. 
 Arment v. Arment, 262. 
 Armitage v. Snowden, 423. 
 Armitage v. Widoe, 473, 493. 
 Armour-Cudahy Packing Co. y. Hart, 
 
 589. 
 Armour & Co. v. Russell, 607, 608, 
 
 609. 
 Armstrong v. Armstrong, 125, 130, 
 
 273, 281. 
 Armstrpng v. McDonald, 362. 
 Armstrong v. Ross, 188. 
 Armstrong v. Slmouton's Adm'r, 129. 
 Armstrong v. Stone, 347, 349. 
 
 Armstrong v. Wilcox, 466., 
 Armstrong Clothing Co. v. Boggs, 332. 
 Armstrong's Heirs v. Walkup, 409, 
 
 414, 431, 451. 
 Arndt-Ober v. Metropolitan Opera 
 
 Co., 567. 
 Arnold v. Arnold, 270. 
 Arnold v. Keil, 85. 
 Arnold v. Limeburger, 132, 133, 140, 
 
 198. 
 Arnold v. McBride, 206. 
 Arnold v. Richmond Iron Works, 540, 
 
 544. 
 Arnold v. Whitcomb, 538. 
 Aronson v. Ricker, 102. 
 Arrington v. Arrington, 246. 
 Arrington v. Yarborough, 133. 
 Arrowsmith v. Harmoning, 439. 
 Arthur V. Broadnax, 50, 158. 
 Arthur V. Oakes, 599. 
 Arthur Lehman & Co. v. Slat, 201. 
 Arthurs, Appeal of, 405, 450. 
 Arundell v. Phipps, 231. 
 Asberry's Adm'r v. Asberry's Adm'r, 
 
 424. 
 Ashbey y. Elsberry & N. H. Gravel 
 
 Road Co., 110. 
 Asher V. Bennett, 492. 
 Ashfield V. Ashfield, 502. 
 Ashmead v. Reynolds, 544. 
 Ashton V. Thompson, 449. 
 Ashworth v. Outram, 162, 163. 
 Askew V. Dupree, 39, 42, 44, 48. 
 Askey v. Williams, 482, 487.. 
 Aspinwail v. Aspinwall, 241. 
 Astley V. Astley, 284. 
 Atherton f- Atherton, 246, 252, 278, 
 
 287, 291. . 
 Atkin V. Acton, 589. 
 Atkins V. Sherbino, 362, 363. 
 Atkyns v. Pearce, 175. 
 Atlantic Coast Line R. Co. v. Beazley, 
 
 628, 6S0. 
 Atlantic Compress Co. v. Young, 592. 
 Atoka Coal & Mining Co. v. Miller, 
 
 607, 615, 622. 
 Atteberry v. Burnett, 201. 
 Attorney General v. Parnther, 553. 
 Attrill v. Patterson, 583. 
 Atwood V. Holcomb, 357, 359, 360, 361, 
 
 363, 364, 365. 
 Aughtie V. Aughtie, 58. 
 Auld V. Auld, 279. 
 Auringer v. Cochrane, 171, 332. 
 Austen v. Cox, 104. 
 Austin V. Austin, 361. 
 Austin V. Trustees; 470, 496. 
 Avakian v. Avakian, 17, 60. 
 Avery v. Vansickle, 191. 
 
660 
 
 CASES CITED 
 [Tte figures refer to pages] 
 
 Avery v. Wilson, 547. 
 
 Aycock V. Hampton, 305. 
 
 Ayer v. Warren, 158. 
 
 Ayer & Lord Tie Co. v. Witherspoon's 
 
 Adm'r, 438. 
 Aylesford Peerage, Case of, 299. 
 Aylor V. Aylor, 391. 
 Aymar v. Roff, 22. 
 Azbill V. AzbiU, 164. , 
 
 B 
 
 Babb V. Perley, 141, 142. 
 
 Babcock v. Railway Co., 627. 
 
 Babcock Lumber & Land Co. v. Fer- 
 guson, 466. 
 
 Babcock & Wilcox Co. v. Moore, 584. 
 
 Babin v. Le Blanc, 70. 
 
 Bachelor v. Korb, 439. 
 
 Bachman v. Waterman, 641. 
 
 Bacon v. Bacon, 5, 258, 264. 
 
 Badenhoof v. Johnson, 404. 
 
 Badger v. Phinney, 507, 508, 510, 515, 
 527. 
 
 Badgley v. Heald, 604. 
 
 Baggett V. Jackson, 494. 
 
 Bagley v. Fletcher, 506. 
 
 Bahn v. Bahn, 253. 
 
 Bailey v. Apperson, 230. 
 
 Bailey v. Bailey, 115, 120, 251, 255, 
 257, 263. 
 
 Bailey v. Bamberger, 514. 
 
 Bailey v. Chesley, 307. 
 
 Bailey v. College of Sacred Heart, 
 377. 
 
 Bailey v. Cornell, 655. 
 
 Bailey v. Fink, 205, 207. ~ 
 
 Bailey v. Fiske, 31. 
 
 Bailey v. Gaston, 352. 
 
 Bailey v. Kennedy, 114. 
 
 Bailey v. Long, 111. 
 
 Bailey v. Rogers, 458. 
 
 Bailey v. State, 44. 
 
 Bailey v. Swallow, 624, 626. 
 
 Baillie v. Kell, 593. 
 
 Bain v. Bain, 268. 
 
 Bain v. Buff's Adm'r, 188, 190. 
 
 Bainbridge v. Pickering, 486. 
 
 Baird v. Carle, 118. 
 
 Baity v. CranflU, 61. 
 
 Baker, Appeal of, 431. 
 
 Baker \r. Baker, 12, 19, 120, 355. 
 
 Baker v. Barney, 178. 
 
 Baker v. Bolton, 112. 
 
 Baker v. Braslin, 96, 98. 
 
 Baker v. Cureton, 407. 
 
 Baker v. Haldeman, 335. 
 
 Baker v. Hall, 133. 
 
 Baker v. Hathaway, 206. 
 
 Baker y. Jewel Tea Co., 126. 
 
 Baker v. Johnson, 593. 
 
 Baker v. Kennett, 492, 499, 
 
 Baker v. Lauterbach, 580, 
 
 Baker v. Lorillard, 437. 
 
 Baker v. Lovett, 476. 
 
 Baker v. Lukens, 184. 
 
 Baker v. Oughton, 176. 
 
 Baker v. Owensboro Savings Bank & 
 
 Trust Co.'s Receiver, 161. 
 Baker v^ Pierce, 432. 
 Baker v. Portland, 563. 
 Baker v. Saxon, 151. 
 Baker v. Stone, 528. 
 Baker v. Strahom, 312. 
 Baker v. Syfritt, 234. 
 Baker v. Thompson, 160. 
 Baker v. Young, 96. 
 Baker's Ex'rs v. Kilgore, 196, 197. 
 Balch V. Smith, 398, 399. 
 Baldridge .v. State, 454. 
 Baldwin v. American Writing Paper 
 
 Co., 621. 
 Baldwin v. Carter, 139, 216, 217, 222. 
 Baldwin v. Dunton, 538 
 Baldwin v. State, 328. 
 Baldwin's Estate, In re, 49, 51, 52. 
 Ball V. Bennett, 96, 97. 
 Ban V. Bruce, 376, 384. 
 Ball V. Cross, 291. , 
 
 Ball r. Lovett, 172, 173. 
 Ball V. Mannin, 538. 
 Ball V. Mining Co., 593. 
 Ball V. Montgomery, 137. 
 Ball & SheppaTd v. Paquin, 205. 
 Ballantine v. Proudfoot, 553. 
 Ballard v. St, Albans Advertiser Co., 
 
 356. - 
 Ballin V. Dillaye, 212. 
 Ballinger v. Rader, 337, 546. 
 Balster v. Cadick, 233. 
 Balthaser Appeal of, 426, 427, 428. 
 Baltimore Baseball Club & Exhibition 
 
 Co. V. Pickett, 583, 589. 
 Baltimore & O. R. Co. v. Baugh, 626, 
 
 628, 631. 
 Baltimore & O. R. Co. v. Branson, 
 
 621, 634. 
 Baltimore & O.. R. Co. v. Fltzpatrick, 
 
 468. 
 Baltimore & O. R. Co. v. State, 523. 
 B. Altman & Co. v. Durland, 173, 175. 
 Banbury Peerage, Case of, 296, 297. 
 Bancroft v. Bancroft, 283. 
 Bankard v. Shaw, 208. 
 Banker v. Banker, 19. 
 Bank of Commerce v. BaldYrtn, 161, 
 
 205. 
 
CASES CITED 
 [The figures refer to pages] 
 
 661 
 
 Bank of Greensboro v. Chambers, 188, 
 
 217. 
 Bank of New Orleans v. Matthews, 
 
 568. 
 Bank of Nez Perce v. Pindel, 151. 
 Banks v. Conant, 355, 386. 
 Banks v. Galbraith, 55. 
 Banks v. Goodfellow, 554. 
 B^ks V. Schofield's Sons Co., 618. 
 Banks' Adm'rs v. Marksberry, 130. 
 Banner v. Banner, 241. 
 Banner Mercantile Co. v. Hendricks, 
 
 84, 85. 
 Bantz V. Bantz, 389, 577. 
 Barbee v. Armstead, 113. 
 Barber, In re, 554. 
 Barber v. Barber, 79, 244, 290. 
 Barber v. Graves, 470. 
 Barber v. Harris, i41, 148. 
 Barber v. Keeling, 104, 160. 
 Barber v. People, 20, 21, 62. 
 Barber v. Root, 141, 288. 
 Barber v. Slade, 138, 142. 
 Barbour v. Stephenson, 381. 
 Barclay v. Com., 8. ' 
 Bardwell v. Purrington, 461, 572. 
 Bare v. Crane Creek Coal & Coke Co., 
 
 615. 
 Barefoot v. Barefoot, 81. 
 Bargna v. Bargna, 44. 
 Barhite's Appeal, 577. 
 Barker v. Barker, 32, 40. 
 Barker v. Boyd, 459. 
 Barker v. Dayton, 176. 
 Barker v. Fuestal, 495. 
 Barker v. Hibbard, 487. 
 Barker v. State, 90. 
 Barker v. Valentine, 51. 
 Barkley v. Barkley, 541. 
 Barkshire v. State, 2. 
 Barlee v. Barlee, 253. , 
 
 Barlow V. Barnes, 121. 
 Barnaby v. Bamaby, 476. 
 Barnes v. Alleii, 115, 316. 
 Barnes v. American Soda Fountain 
 
 .Co., 498. 
 Barnes v. Barnes, 64, 240, 252, 253, 
 
 255, 276, 483. 
 Barnes v. Martin, 111, 112. 
 Barnes v. Toye, 486-, 
 Barnes v. Underwood, 183, 184. 
 Barnett v. Barnett 257, 258, 260. 
 Bamett v. Bull, 439. 
 Barnett v. Leonard, 109. 
 Barney v. Hutchinson, 319. 
 Barney v. Parsons' Guardian, 422, 
 
 426. 
 Barney v. Saunders, 425, 431, 432. 
 Bamhizel v. Ferrell, 312. 
 
 Bamsback v. Dewey, 406, 407. 
 Barnum v. Frost's Adm'r, 411. 
 Barr v. Armstrong, 175. 
 Barr v. Packard Motor Car Co., 512. 
 Barr v. Simpson, 151. 
 Barrack v. McCuUoch, 187. 
 Barrere v. BaiTere, 244, 252. 
 Barrett v. Buxton, 555. 
 Barrett v. Provineher, 451. 
 Barringer v. Dauernheim, 242. 
 Barron v. Barron, 133, 229, 230, 232. 
 Barron v. Zimmerman, 309. 
 Barrow v. Dugan's Estate, 160. 
 Barry v. St. Louis, 653. 
 Bartholomew v. AUentown Nat. Bank, 
 
 150, 212. 
 Bartholomew v. Dighton, 468. 
 Bartholomew v. Jackson, 575, 576. 
 Bartholow v. Davies, 312. 
 Bartlett, Ex parte, 417. 
 Bartlett v. Batts, 468, 469. 
 Bartlett v. Cowles, 451, 508. 
 Bartley v. Hichtmyer, 370, 376, 380, 
 
 383, 384, 410. 
 Barton v. Barton, 117, 202. 
 Barton v. Beer, 164. 
 Barton v. Bowen, 416. 
 Barton's Lessee v. Morris' Heirs, 14. 
 Barwick v. Miller, 307. 
 Barwick v. Rackley, 307, 468. 
 Bascomb v. Bascomb, 29. 
 Basford v. Pearson, 205, 206. 
 Bagham v. Chicago & G.W. Ry. Co., 
 
 634. 
 Bashaw v. State, 37, 39, 41. 
 Baskette v. Streight, 312. 
 Basler v. Sacremento Gas & Electric 
 
 Co., 109. 
 Bass V. Cook, 409. 
 
 Bass Furnace Co. v. Glasscock, 589. ' 
 Basse v. Allen, 583. 
 Bassett v. Bassett, 13, 14, 56, 60, 120. 
 Bassi V. Orth, 661. 
 Bassler v. Rewodllnski, 149. 
 Bast V. Bast, 283. 
 Bast V. Byrne, 592. 
 Batchelder v. Sargent, 205, 209. 
 Batcheller-Durkee v. Batcheller, 317 
 Bateman v. Cherokee Fertilizer Co., 
 
 207. 
 Bates V. Ball, 555. 
 Bates V. Capital State Bank, 201. 
 Bates V. Dandy, 134. 
 Bates V. Meade, 301. 
 Bates V. Papesh, 160. 
 Bates V. Seely, 146, 148, 
 Bates V. Sgraeder, 142. 
 Battighill v. Humphreys, 523, 
 Battle V. Vick, 403, 
 
662 
 
 CASES ClTED 
 ITtie figures refer to pages] 
 
 Batts, In re, 641. 
 
 Batty V. Greene, 10. 
 
 Bauder's Appeal, 258. 
 
 Bauer v. Ambs, 210. 
 
 Bauer v. Bauer, 83. 
 
 Baugh, Case of, 631. 
 
 Baughman v. Baughman, 270. 
 
 Baulee v. R. Co., 611. 
 
 Baum, In re, 147. 
 
 Baum V. Greenwald, 534, 536. ■ 
 
 Baum V. Hartmann, 447, 457. 
 
 Baum V. Mullen, 101, 103, 104. 
 
 Bauman v. Oowdin, 607. 
 
 Baurens, In re, 89. 
 
 Baxter v. Bush, 524. 
 
 Baxter v. Roberts, 613. 
 
 Bayles v. Burgard, 383. 
 
 Baylls V. Baylis, 295. 
 
 Baylis v. Dineley, 473. 
 
 Bay Shore E. Co. v. Harris, 521. 
 
 Bay State St. Ry. Co. v. Rust, 638. 
 
 Bazeley v. Forder, 321. 
 
 Bazemore v. Mountain, 83. 
 
 Beach V. Beach, 9. i 
 
 Beach V. Bryan, 315. 
 
 Beach v. MuUin, 584. 
 
 Beachy v. Shomber, 439. 
 
 Beakhust v. Crumby, 391. 
 
 Beal y. Harmon, 419. 
 
 Beal V. Warren, 208. 
 
 Beale v. Arabin, 178. 
 
 Beale v. Knowles, 140. 
 
 Beals V. See, 542. 
 
 Beam v. Froneberger, 424. 
 
 Beamish v. Beamish, 37. 
 
 Bean v. Bumpus, 451. 
 
 Bean v. Morgan, 158. 
 
 Bear v. Hays, 125. 
 
 Beard v. Beard, 229. 
 
 Beard v. Dean, 405. 
 
 Beard v. Dedolph, 203, 208. 
 
 Beardsley v. Hotchkiss, 330, 331. 
 
 Beasley v. State, 93, 558. 
 
 Beasley v. Watson, 410. 
 
 Season v. State, 471, 529. 
 
 Beauchamp v. Bertig, 467, 490, 506, 
 
 512. 
 Beauchamp v. Sturges & Burn Mfg. 
 
 Co., 462. 
 Beaudette v. Goyne, 383. 
 Beaudette v. Martin, 176. 
 Beaver v. Bare, 357, 359, 360, 365. 
 Beaver v. Crump, 316. 
 Beazley v. Harris, 423. 
 Beck V. Standard Cotton Mills, 613, 
 
 615. 
 Becker v. Becker, 44, 216. 
 Becker v. Gibson, 392. 
 Becker v. Mason, 527. 
 
 Becker v. Schwerdtle, 388. 
 
 Beckermeister v. Beckermeister, 10^ 
 60. 
 
 Beckman v. Stanley, 158. 
 
 Beckwich Organ Co. v. Malone, 617* 
 
 Beckwith v. Butler, 538. 
 
 Bedan v. Tirney, 121. 
 
 Bedell v. Constable, 452. 
 
 Bedell's Heirs v. Lewis' Heirs, 469. 
 
 Bedford v. McKowl, 376, 381, 382, 384. 
 
 Bedford's Estate, In re, 406. 
 
 Beebe v. Beebe, 251. 
 
 Beebe v. Estabrook, 390. 
 
 Beeby v. Beeby, 279, 280, 282. 
 
 Beedy v. Reding, 335, 337. 
 
 Beekman v. Beekman, 251. 
 
 Beekman v. Bonsor, 565. 
 
 Beeks v. Beeks, 14. 
 
 Beel V. State, 551. 
 
 Beelei- v. Dunn, 415. 
 
 Beeler v. Young, 481, 482, 485. 
 
 Beeler's Heirs v. Bullitt's Heirs, 496. 
 
 Beem v. Mays, 443. 
 
 Beenel v. Louisiana Cypress Lumber 
 
 Co., 454. N 
 Beeson v. Smith, 539. 
 Beggs V. State, 22, 24. 
 Behrens v. McKenzie, 542, 546. 
 Beickler v. Guenther, 478, 512. 
 Belnbrink v. Fox, 203. 
 Beisel v. Gerlach, 116. 
 Beissel v. Vermillion Farmers' Ele- 
 vator Co., 582, 597. 
 Belchier, Ex parte, 426. 
 Beleal v. Northern Pac. Ry. Co., 621. 
 Belk V. Lee Roy Myers Co., 607. 
 Belknap y. Lady Weyland, 158. 
 Belknap v. Stewart, 177. 
 Bell V. Bell's Guardian, 455. 
 Bell v. Burkhalter, 510. 
 Bell V. Clarke, 53. 
 Bell v. Dingwell, 412, 437. 
 Bell V. Josselyn, 656. 
 Bell V. Love, 401. 
 Bell V. Rossignol, 83. 
 Bell V. Rudolph, 457. 
 Beel V. State, 92. 
 Bell V. Terry & Tench Co., 308. 
 Bell V. Toluca Coal Co., 638. 
 Bell's Adm'r y. Jasper, 458. 
 Bellamy v. Thornton, 416. 
 Bellefontaine & I. R. Co. v. Snyder 
 
 523. 
 Beller v. Beller, 264. 
 Bellinger v. Devine, 53. 
 Bellune v. Wallace, 458. 
 Bemis v. Call, 157. 
 Benedicto v. Dela Rama, 282. 
 Benjamin v. Benjamin, 170, 172. 
 
CASES CITED 
 [The figures refer to pages] 
 
 663 
 
 Benjamin v. Dockham, 175. 
 
 Benkert v. Benlkert, 264. 
 
 Bennet v. Davis, 187. 
 
 Bennett v. AUcott, -378, 383. 
 
 Bennett v. Bennett, 30, 88, 109, 114, 
 
 118, 119, 257, 263, 349. 
 Bennett v. Bennett's Adm'r, 198. 
 Bennfett v. Byrne, 404, 406. 
 Bennett v. Davis, 468, 473. 
 Bennett v. Harms, 145. 
 Bennett v. Hibbert, 565. 
 Bennett v. " Himmelberger-Harrison 
 
 Lumber Co., 608. 
 Bennett v. Hutctiens, 196. 
 Bennett v. Morton, 586, 596. 
 Bennett v. Smitli, 21, 115, 117. 
 Bennett v. Truebody, 653, 654. 
 Bensing v. Steinv^ay, 626. 
 Benson v. Goodwin, 628. 
 Benson v. Remington, 354. 
 Benson v. Tucker, 475, 514. 
 Bent's Adm'r v. St. Vrain, 307. 
 Bentley v. Doggett, 646. 
 Bentley v. Smith, 583. 
 Bently v. Terry, 353. 
 Benton, In re, 395, 416, 417. 
 Benton v. Benton, 15. 
 Benton v. Finkblne Lumber Co., 616. 
 Berea Stone Co. v. Kraft, 630. 
 Bergen v. Udall, 389. 
 Berger v. Jacobs, 103, 108, 110, 111. 
 Berger v. Kirby, 48. 
 Bergh v. Warner,^ 169, 175. 
 Berglund v. American Multigraph 
 
 Sales Co., 514, 516.. 
 Berkmeyer v. Kellerman, 389, 449. 
 Bernard v. Pittsburg Coal Co., 468. 
 Bernecker v. Miller, 470. 
 Bemero v. Goodwin, 317. 
 Berow v. Sliields, 84, 85, 86. 
 Berry, In re, 147, 148. 
 Berry v. Bakeman, 12. 
 Berry v. Johnson, 405. 
 Berry v. Powell, 307, 308, 309. 
 Berry v. Stlgall, 511. 
 Berry v. Tullis, 309. 
 Bertelsen v. Edck Island Plow Co., 
 
 632. 
 Berthon v. Cartwright, 115. 
 Bertles v. Numan, 146, 148, 149. 
 Bertolami v. United Engineering & 
 
 Contracting Co., 611. 
 Besant v. Wood, 239. 
 Besondy, In re, 325, 331. 
 Bess Mar Realty Co. v. Capell, 466. 
 Bessex v. Railway Co., 609. 
 Best V. House, 306. 
 Best V. Lizarrago, 586. 
 Best & Co. V. Cohen, 178. 
 
 Bethune's Will, In re, 34. 
 
 Bettes V. Brower, 436. 
 
 Bettini v. Gye, 588. 
 
 Bettle V. Wilson, 240. 
 
 Betz V. Lovell, 389. 
 
 Beverley, Case of, 544, 557. 
 
 Beverley, In re, 533. 
 
 Beverlin v. Beverlin, 38, 42. 
 
 Beverlin v. Casto, 235. 
 
 Beverson's Estate, In re, 48. 
 
 Bevier v. GallowaJ-, 176. 
 
 Bey V. Bey, 46, 53. 
 
 Beyerle v. Beyerle, 351. 
 
 Bibb V. State, 91. 
 
 Bibelhausen v. Bibelhausen, 219, 224, 
 
 225. 
 Bickerstaff v. Marlin, 430. 
 Bickford v. Bickford, 272. 
 Bickle V. Turner, 512. 
 Bicknell v. Bieknell, 486. 
 Bierbauer v. Wirth, 579. 
 Bierer, Appeal of, 223, 224, 225. 
 Biersack, In re, 43, 50, 63, 64, 296. 
 Bierstadt v. Bierstadt, 244. 
 Bigaouette v. Paulet, 114, 121. 
 Bigelow V. Grannis, 504. 
 Bigelow V. Kinney, 475, 494, 503, 507, 
 
 508. 
 Biggs V. St. Louis, I. M. & S. Ry. Co., 
 
 355, 364. 
 Bilder.v. Robinson, 149. 
 Bill v. Buckhalter, 498. 
 Billings V. Baker, 194. 
 Billings V. Head, 317. ; 
 
 Billington v. Cahill, 579. 
 binford v. Johnston, 521. 
 Bingham v. Bingham, 278. 
 Bingham v. Miller, ,292. 
 Birch T. Abercrombie. 335, 336. 
 Bird V. Utica Gold, Mining Co., 611. 
 Birdsall v. Edgerton, 306. 
 Birmingham v. O'Neil, 88. 
 Birmingham Cjoal & Iron Co. v. Doe 
 
 ex dem Arnett, 452- 
 Birmingham Southern R. Co. v. Lint- 
 
 ner, 110. 
 Birmingham Waterworks Co. v. 
 
 Hume, 198. 
 Birtwhistle v. Vardill, 300. 
 Bisbee v. Gleason, 458. 
 Bisbee v. McManus, 333. i 
 
 Bishop V. Bishop, 89, 266. 
 Bishop V. Brittain Inv. Co., 49, 50. 
 Bishop V. Ranney, 587. 
 Bishop v. Readsboro Chair' Mfg. Co., 
 
 140. 
 Bissell V. Myton, 306. 
 Bixby V. Dunlap, 643. 
 Black V. Bryan, 179. 
 
664 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Black V. Hills, 515, 517. 
 Blackburn v. Crawford, 38. 
 Blackhawk County v. Scott, 87, 88. 
 Blacksher v. Northrup, 398. 
 Blackwell v. Willard, 567. 
 Blaechinska v. Howard Misslion & 
 
 Home for Little Wanderers, 126, 
 
 127, 200. 
 Blagge V. Ilsley, 378, 380, 381, 383. 
 Blair v. Adams, 309. 
 Blair v. Broadwater, 337. 
 Blair v. Chicago & A. R. Co., 111. 
 Blair v. Teel, 205, 206. 
 Blair v. Whittaker, 510. 
 Blake V. Blake, 455. 
 Blake v. Ferris, 651, 652, 654. 
 Blake v. Hollandsworth, 495, 497. 
 Blake V. Lanyon, 643. 
 Blakely's Will, In re, 553. 
 Blakeslee v. Blakeslee, 6, 244. 
 Blakeslee v. Tyler, 92. 
 Blanchard v. Ilsley, 376, 409, 410. 
 Blanchard v. Lambert, 42, 44, 50, 64. 
 Blanchard v. Nestle, 554. 
 Blaney v. Blaney, 268. 
 Blanke v. Southern Jl. Co., 32, 51. 
 Blankenmiester v. Blankenmiester, 
 
 14. 
 Blankenship v. Ross, 308. 
 Blanks v. Southern R. Co., 51. 
 Blauser v. Diehl, 439, 458. 
 Blaymire v. Haley, 371. 
 Bleck V. Bleck, 286. 
 Bledsoe v. Britt, 455. 
 Bledsoe v. Fitts, 201. 
 Bledsoe v. Seaman, 288. 
 Blld V. Blid, 351. 
 Bliss V. Bliss, 280. 
 Blodget-v. Brinsmaid, 27, 28. 
 Blomfleld V. Eyre, 401. 
 Blondin v. Brooks, 203. 
 Blonskl V. American Enameled Brick 
 
 & Tile Co., 614. 
 Blood V. Bnos, 603. 
 Bloomer v. Nolan, 487. 
 Blossom V. Barrett, 32. 
 Blough V. Parry, 553. 
 Blount V. Bestland, 133. 
 Blue V. Marshall, 430. 
 Blurock V. Blujock, 253. 
 Blust V. Pacific States Telephone Co., 
 
 607, 612. 
 Blythe v. Ayres, 302, 303, 304, 305. 
 Blythe v. Hinckley, 565. 
 Bbardman, Appeal of, 216. 
 Board of Children's Guardians of 
 
 Marion County v. Shutter, 400, 407. 
 Board of Com'rs of Hillsborough 
 
 County V. Savage, 463. 
 
 Board of Com'rs of Madison County 
 V. Moore, 536. ' 
 
 Boaz V. Swinney, 320. 
 
 Boaz's Adm'r v. Milliken, 426, 428. 
 
 Bock V. Bock, 27. 
 
 Bodie V. Bates, 243, 244. 
 
 Bodkin v. Kerr, 127. 
 
 Boeck V. Boeck, 257. 
 
 Boehm v. Boehm, 81. 
 
 Boehm v. Detroit, 523. 
 
 Boehs V. Hanger, 10. 
 
 Boggess V. Boggess, 253. 
 
 Bogsess V. Richard's Adm'r, 221, 253. 
 
 Boggs V. Adger, 432, 433. 
 
 Bogie V. Nelson, 159, 205. 
 
 Bohnert v. Bohnert, 280. 
 
 Boisseau v. Boisseau, 423, 424, 434. 
 
 Bokoshe Smokeless Coal Co. v. More- 
 head, 653. 
 
 Boland v. McKowen, 148. 
 
 Boland v. Missouri R. Co., 523. 
 
 Boland v. Stanley, 114, 115, 116. 
 
 Boldrick v. Mills, 129. 
 
 Boiling V State, 550. - 
 
 Bollinger v. Wright, 151. 
 
 Bolthouse V. De Spelder, 205. 
 
 Bolton V. Miller, 371, 379, 380. 
 
 Bolton V. Prentice, 176, 179. 
 
 Bond V. Bond, 538, 539. 
 
 Bond V. Conway, 132. 
 
 Bond V. Lockwood, 326, 428, 436, 443, 
 457. 
 
 Bondies v, Bondies, 327. 
 
 Bendy v. American Transfer Co., 110. 
 
 Bonebrake v. Tauer, 83. 
 
 Bonham v. Badgley, 28, 57, 66. 
 
 Bonham v. People, 457, 458. 
 
 Bonner v. Evans, 455. 
 
 Bonnett v. Bonnett, 347, 353, 354. 
 
 Bonney v. Reardin, 184. 
 
 Bonwit, Teller & Co. v. Lovett, 170. 
 
 Boody v. McKenney, 495, 500, 510, 
 512. 
 
 Booge V. Railroad Co., 598. 
 
 Booker v-. Booker, 152. 
 
 Booker v. Castillo, 154. 
 
 Bool V. Mix-, 492, 493, 506, 507. 
 
 Boone v. Lohr, 621. 
 
 Booth V. Backus, 200. 
 
 Booth V. Fordham, 146. 
 
 Booth V. Manchester St. Ry., 110. 
 
 Booth V. Rateliffe, 582. 
 
 Booth V. R. Co., 611. 
 
 Booth V. Wilkinson, 421. 
 
 Booth Mercantile Co. v. Murphy, 207. 
 
 Borden v. Borden, 262. 
 
 Borden v. Daisy Roller Mill Co., 617. 
 
 Borgnis v. Falk Co., 637, 638. 
 
 Borland v. Welch, 217. 
 
CASES CITED 
 [The figures refer to pages] 
 
 665 
 
 Bom V. Chicago City R. Co., 511, 513. 
 
 Bert, In re, 348, 350. 
 
 BorufE V. Stipp, 428. 
 
 Boss V. Jordan, 85. 
 
 Bostick V. l;^tate, 16. 
 
 Boston Bank v. Chamberlin, 503. 
 
 Boston Glass Manufactory v. Binney, 
 644. 
 
 Bostwick, In re, 415. 
 
 Bostwick V. Bostwick's Estate, 577. 
 
 Bosville V. Attorney General, 297. 
 
 Bottiller v. Newport, 489. 
 
 Bouchell V. Clary, 482, 484 
 
 Bouknight v. Epting, 197. 
 
 Boulden v. Mclntire, 64. 
 
 Bouldin v. Miller, 440. 
 
 Boulting V. Boulting, 274, 27o. 
 
 Bounell v. Berryhill, 408. 
 
 Bourdreaux v. Lower Terrebonne Re- 
 fining & Mfg. Co. 430. 
 
 Bourgeois v. Chauvin, 273, 274. 
 
 Bourgeois v. Edwards, 200. 
 
 Bourne v. Maybin, 443, 444, 450. 
 
 BouteU V. Shellabarger, 103. 
 
 Boutterie v. Demarest, 16. 
 
 Bovard v. Kettering, 164. 
 
 Bovy (Sir Ralph) Case of, 225, 226. 
 
 Bowden v. Gray, 125. 
 
 Bowen v. Hall, 644. 
 
 Bower, Appeal of, 209. 
 
 Bowers v. Bowers, 26, 28, 59, 66. 
 
 Bowers y. Good, 155. 
 
 Bowes V. Tibbets, 357. 
 
 Bowie V. Bowie, 280. 
 
 Bowie V. Stonestreet, 231. 
 
 Bowker v. Pierce, 433. 
 
 Bowles V. Bingham, 294, 300. 
 
 Bowles V. Winchester, 391. 
 
 Bowman v. Bowman, 38, 44, 45. 
 
 Bowman v. Wade, 539. 
 
 Bowring v. Wilmington Malleable 
 Iron Co., 615. 
 
 Boxa V. Boxa, 351. 
 
 Boyce v. Boyce, 89. 
 
 Boyce's Adm'r v. Smith, 539. 
 
 Boyd V. Blaisdell, 367. 
 
 Boyd V. Boyd, 240, 241, 391. 
 
 Boyd V. Byrd, 370, 371. 
 
 Boyd V. State, 340, 342, 343. 
 
 Boyd V. Taylof , 614. 
 
 Boyden v. Boyden, 500, 515. 
 
 Boyer v. Berryman, 540, 541. 
 
 Boyer v. Dively, 55. 
 
 Boyes' Estate, In re, 410, 413, 416. 
 
 Boyett V. Hurst, 434. 
 
 Boyington's Estate, In re, 44, 49, 51, 
 53. 
 
 Boykin v. Collins, 519, 
 
 Boykin v. Rain, 141. 
 
 Boylan v. Deinzer, 28. 
 
 Boyle V. Boyle, 252. 
 
 Boyle V. Brandon, 382. 
 
 Boynton v. Dyer, 431, 432. 
 
 Bozeman v. Browning, 474. 
 
 Braceglrdle v. Heald, 579. 
 
 Brack V. Morris, 400, 407. 
 
 Brackett v. Brackett, 344, 345. 
 
 Bracy v. Kibbe, 384. 
 
 Bradburn v. Wabash R. Co., 613. 
 
 Bradbury v. Place, 543. 
 
 Bradfield v. Bradfield, 245. 
 
 Bradford v. Greenway, 190. 
 
 Bradley v. Amidon, 429. 
 
 Bradley v. Bradley, 264, 265. 
 
 Bradley v. Keen, 333. 
 
 Bradley v. Pratt, 482, 483. 
 
 Bradley v. Saddler, 226. 
 
 Bradley v. Vandalia R. Co., 618. 
 
 Bradshaw v. Beard, 182. 
 
 Bradshaw v. Bradshaw, 451. 
 
 Bradshaw v. Standard Oil Co., 630. 
 
 Bradshaw v. Van Winkle, 491. 
 
 Bradsher v. Cannady, 391. 
 
 Brady, In re, 406. 
 
 Brady v. Equitable Trust Co., 210, 
 
 211. 
 Bramwell v. Bramwell, 278, 279, 281. 
 Branch v. Branch's Bx'r, 240. 
 Brandau v. Greer, 419. 
 Brandau v. McCurley, 234. 
 Brandon v. Brown, 512. 
 Bransom's Adm'r v. Labrot, 521. 
 Branson v. Branson, 276. 
 Brantley v. Wolf, 502, 528. 
 Brashford v. Buckingham, 125. 
 Braswell v. Garfield Cotton Oil Mill 
 
 Co., 368. 
 Brattain v. Cannady, 455. 
 Braua v. Braua, 463. 
 Braucht v. Graves-May Co., 512, 514. 
 Brawner v. Franklin, 510, 512. 
 Bray v. Wheeler, 365. 
 Brazil V. Moran, 96, 97, 98. 
 Brecheisen v. Clark, 234. 
 Breckenridge's Heirs v. Ormsby, 496, 
 
 540. 
 Bredin v. Dwen, 411. 
 Breed v. Judd, 485, 514. 
 Breed v. Pratt, 554. 
 Breeding v. Davis, 140.1 
 Breidenstein v. Bertram, 301. 
 Breig v. B. Co., 620. 
 Breiman v. Paascb, 120. 
 Brennan v. Uilion Hatters of North 
 
 America, Local No. 17, 645. 
 Brenner v. Goldstein, 104. 
 Bresser v. Saarman, 311. 
 
666 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Bressler v. Kent, 166, 167, 188, 202, 
 
 208. 
 Breton's Estate, In re, 231. 
 Brewer v. Brewer, 83. 
 Brewer v. Cary, 335. 
 Brewer v. Wright, 602. 
 Brlce V. Brice, 327. 
 Brick V. Railroad Co., 625. 
 Brick's Estate, In re, 451. 
 Brickway's Case, 536. 
 Bridge v. Bridge, 280. 
 Bridge v. Eggleston, 221. 
 Bridges v. Hales, 398. 
 Brien's Estate, In re, 406. 
 Briese v. Maeehtle, 524. 
 Briggs V. Evans, 383. 
 Brigga v. McBride, 153, 155. 
 Briggs V. McCabe, 476. 
 Briggs v^ McLaughlin, 294. 
 Briggs V. Morgan, 29. 
 Briggs V. Sanford, 126, 200. 
 Brinkerhofle v. Mersells' Ex'rs, 320. 
 Brinster v. Compton, 345, 347, 348, 
 
 350. 
 Brisco V. Brisco, 284. 
 Briscoe v. Price, 356. 
 Briscoe v. Tarkington, 467. 
 Bristor v. Chicago & N. W. Ry. Co., 
 
 359. 
 Bristow V. Eastman, 529. 
 Brittingham v. Stadiem, 335. 
 Britton v. South Penn Oil Co., 513. 
 Britton t. Turner, 605. 
 Broadrick v. Broadrick, 219, 225. 
 Broadstreet v. Broadstreet, 248. 
 Broadus v. Rosson, 412. 
 Broadwater v. Dame, 555. 
 Broadwell v. Getman, 579. 
 Brodrib v. Brodrib, 444. 
 Brohl V. Lingerman, 335. 
 Brokaw v. Brokaw, 258. ^ 
 Bromley v. Wallace, 121. 
 Brook V. Brook, 169. 
 Brooke v. Filer, 567. 
 Brooke v. Logan, 352. 
 Brooker v. Scott, 483. 
 Brookes v. Brookes, 262. 
 Brookman v. Durkee, 153. 
 Brooks V. Barrett, 553. 
 Brooks V. Brooks, 455. 
 Brooks V. Brooks' Ex'rs, 225. 
 Brooks V. Rayner, 458. 
 Brooks V. Sawyer, 528. 
 Brooks V. Schwein, 126. 
 Brooks V. Schwerin, 127. 
 Brooks V. >Tobln, 457. 
 Broslus V. Barker, 333, 359, 360. 
 Brossman v. Drake Standard Mach. 
 
 Works, 609, 
 
 Brothers v. Cartter, 629. 
 
 Brow V. Brightman, 327. 
 
 Brower v. Fisher, 554. 
 
 Brown, In re, 346, 410, 444. 
 
 Brown V. Ackroyd, 180.- 
 
 Brown v. Bennett, 158. 
 
 Brown v. Board of Education, 597. 
 
 Brown v. Eokpe, 132, 133. 
 
 Brown v. Brown, 32, 80, 106, 233, 246, 
 
 250, 253, 255, 268, 278, 538. 
 Brown v. Caldwell, 476. 
 Brown V. Campbell, 432. 
 Brown v. Clark, 281. 
 Brown v. Crown Gold Milling Co., 598. 
 
 605. 
 Brown v. Davis, 152. 
 Brown v. Dunham, 423. 
 Brown v. Fifield, 203, 208. 
 Brown v. Finley, 320. 
 Brown v. Fitz, 130. 
 Brown v. French, 432, 433. 
 Brown v. Gilchrist, 626. 
 Brown v. Grant, 412. 
 Brown v. Hooks, 466. 
 Brown v. Hull, 468, 469. 
 Brown V. Huntsman, 452. 
 Brown v. Kerby, 309. 
 Brown v. Kistleman, 112. 
 Brown v. Lynch, 393, 406. 
 Brown, v. McCune, 490, 528. 
 Brown v. Moudy, 179. 
 Brown v. Railroad Co., 628. 
 Brown v. Ramsay, 361, 362, 383. 
 Brown V. Smith, 327, 331. 
 Brown v. Staab, 494, 505. 
 Brown v. State, 328, 386, 530. 
 Brown v. Wheelock, 519. 
 Brown v. Wright, 432. 
 Brown's Adm'rs v. Brown's Adm'rs, 
 
 129, 187. 
 Brown's Adoption, In re, 311, 313. 
 Browne v. Bedford, 416. 
 Browne v. Dexter, 561. 
 Browning v. Browning, 21, 39, 271. 
 Browning v. Jones, 121, 122. 
 Browning v. Reane, 13, 18. 
 Bruce v. Bruce, 233. 
 Bruce v. Burke, 34. 
 Bruce v. Griscom, 391. 
 Bruce v. Tobin, 392. 
 Bruguiere v. Bruguierfe, 290. 
 Brumby v. Smith, 594. 
 Bruner v. Bruner, 263. 
 Bruner v. Mosner, 577. 
 Brunhoelzl v. Brandes, 524, 526. 
 Bruns v. Cope, 20, 62. 
 Brunson v. Henry, 390. 
 Brunswig v. White, .S77. 
 Brusle V. Dehon, 154. 
 
CASES CITED 
 [The figures refer to pages] 
 
 667 
 
 Brusseau v. Lower Brick Go., 614. 
 
 Bryan v. Bryan, 136. 
 
 Bryan v. Doolittle, 183. 
 
 Bryan v. Jackson, 332. 
 
 Bryan v. Lyon. 347, 352. 
 
 Bi-yant v. Fissell, 639, 640, 
 
 Bryant v. Jackson, 547. 
 
 Bryant v. Jones, 161. 
 
 Bryant v. Lane, 177. 
 
 Bryant v. Rich, 650. 
 
 Bryce v. Wynn, 405. 
 
 Bryon, Ex parte, 805. 
 
 Bryson v. Campbell, 292. 
 
 Bryson v. Collmer, 428. 
 
 Buchanan v. Buchanan, 345. 
 
 Buchanan v. Hubbard, 502, 506, 507. 
 
 Buchanan v. Lee, 196. i 
 
 Buchanan v. Turner, 188. 
 
 Bucher v. Beam, 125. 
 
 Buchser v. Morss, 150. 
 
 Buck V. Meyer, 319. 
 
 Buck V. Wroten, 186. 
 
 Bucklew V. Central Iowa R. Co., 635. 
 
 Buckley v. Buckley, 291. 
 
 Buckley v. Collier, 125. 
 
 Buckley v. Herder, 450, 519. 
 
 Buckley's Adm'r v. Howard, 330. 
 
 Buckmaster v. Buckmaster, 264. 
 
 Buckmlnister v. Buckminister, 324. 
 
 Buckner v. Buckner, 258. 
 
 Buckner's Adm'r v. Buckner, 295. 
 
 Budde V. TJ. S. Incandescent Lamp 
 
 Co., 627. 
 Buerfening v. Buerfening, 285. 
 BuUard v. Briggs, 237. 
 Bullard v. Spoor, 469. 
 Bullock V. Babcock, 524, 525. 
 Bullock V. Knox, 300. 
 Bulmer v. Hunter, 222. 
 Bumgardner v. Harris, 221. 
 Bunce v. Bunce, 439. 
 Bundschuh v. Mayer, 104. 
 Bundy v. Dodson, 355. 
 Bunel V. O'Day, 296. 
 Bunger v. Bunger, 271. 
 Bunnell v. Greathead, 122. 
 Bunnell v. Witherow, 221. 
 Bnrch v. Breckinridge, 188. 
 Burdeau v. Davey, 423. 
 Burdett v. Williams, 491, 504. 
 Burgedorf v. Hamer, 548. 
 Burger v. Frakes, 313, 395. \ 
 
 Burgess v. Carpenter, 643. 
 Burghaft v. Angerstein, 483, 485, 486. 
 Burke, In re, 584. 
 Burke v. Allen, 540, 544. 
 Burk V. Burk, 257, 261, 263. 
 Burke, In re, 331. 
 Burke v. Ellis, 521. 
 
 Burke v. Turner, 330. 
 
 Burke v. Wheaton, 534. 
 
 Burke & Williams v. Mackenzie, 434. 
 
 Burleigh v. Coffin, 131, 132. 
 
 Burlen v. Shannon, 245, 287, 290. 
 
 Burley v. Russell, 490. 
 
 Burlingame v. Burlingame, 359. 
 
 Burnard v. Haggis, 526. 
 
 Burnet v. Burnet, 442. 
 
 Burnett v. Burkhead, 117. 
 
 Burnett v. Burnett, 44. 
 
 Burnett v. Kinnaston, 134. 
 
 Burnett's Estate, In re, 317. 
 
 Burney v. Ryle, 600. 
 
 Burnham v. Hardy Oil Co., 155. 
 
 Burnham v. Kidwell, 588, 539, 541. 
 
 Burnham v. Mitchell, 538: 
 
 Burnham v. Seaverns, 525. 
 
 Burnham v. Stoutt, 209. 
 
 Bums, Case of, 641. 
 
 Burns V. Burns, 279, 280. 
 
 Burns v. Cooper, 157, 207. 
 
 Burns V. Illinois Cent. R. Co., 487. 
 
 Burns v. Parker, 405. 
 
 Burns v. Wilson, 469. 
 
 Burr V. Burr, 244. 
 
 Burr V, Swan, 205. 
 
 Burr Y. Wilson, 519. 
 
 Burrage v. Briggs, 315, 319. 
 
 Burrell, Succession of, 453. 
 
 Burrill v. Eddy, 628. 
 
 Burritt v. Burritt, 327. 
 
 Burrows v. Ozark White Lime Co., 
 
 613. 
 Bursirk v. Sanders, 486. 
 Burson's Appeal, 197. 
 Burt V. McBain, 108. 
 Burtis V. Burtis, 59, 60, 243. 
 Burtis V. Thompson, 586. 
 Burton v. Anthony, 486. 
 Burton v. Behan, 578. 
 Burton v. Belvin, 306. 
 Burton v. Tunnell, 444. 
 Burtwhistle v. Vardill, 304. 
 Bury V. Phillpot, 296, 298. 
 Busch V. Supreme Tent, 51. 
 Bush V. Bush, 255. 
 
 Bush V. Linthicum, 469, 475, 489, 493. 
 Bush V. West Yellow Pine Co.", 620. 
 Butler V. Breck, 184, 477. 
 Butler V. Buckingham, 157, 167. 
 Butler V. BuUer, 32,^50, 255, 256, 260, 
 
 276, 880. 
 Butler v. Eschleman, 12. 
 Butler V. Frank, 160, 164. 
 Butler V. Freeman, 400. 
 Butler V. Gastrin, 27. 
 Butler V. Legro, 457. 
 Butler V. MiU Co., 605, 
 
668 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Butler V. Railroad Co., 109. 
 Butler V. Washington, 289. 
 Butterfleia v. Ashley, 385, 642, 643. 
 Butterfleld v. Beall, 140, 141. 
 Butterfleld v. Butterfleld, 106. 
 Butterfleld v. Byron, 594. 
 Butterfleld v. Bnnis, 44, 114. 
 Butterick Pub. Co. v. Whitcomb, 589, 
 
 592. 
 Buttler V. Farmers' Nat. Bank, 234. 
 Bynum v. Wicker, 148. 
 Byrd v. State, 557. 
 Byrd v. Turpin, 441. 
 Byrne v. ijeamard, 624. 
 Byrne v. R. Co., 521. 
 
 C. T. C. 11, 17. 
 
 Caballero, Succession of, v. Executor, 
 
 70. 
 Cabbie v. Cabbie, 440. 
 Cadden v. American Steel-Barge Co., 
 
 626. 
 Cadwell v. Sherman, 355. 
 Caffey v. JCelly, 128, 130. 
 Caffrey v. Darby, 428. 
 Cain V. Bunkley, 212. 
 Cain V. Devitt, 356. 
 Cain V. Garner, 476. 
 Cain V. Gray, 301. 
 Calms V. Cairns, 274. 
 Caldwell, Succession of, 312. 
 Caldwell v. Blanchard, 159, 180. 
 Caldwell v. Caldwell, 350. 
 Caldwell v. Eneas, 575. 
 'Caldwell v. Young, 431. 
 Calhoon v. Baird, 466. 
 Calhoun v. Bryant, 818, 320. 
 Calhoun v. Calhoun, 409, 416. 
 Calichio v. Calichio, 260. 
 Calkins v. Long, 240. 
 Call V. Ruffin, 458. 
 Call V. Ward, 411. 
 Gallery's Estate, In re, 49. 
 Callis V. Day, 475, 501, 503, 508. 
 Callo V. Broimcker, 589, 590. 
 Caltabellotta's Will, In fe, 291. 
 Calumet Fuel Co. v. Rossi, 611. 
 Calvert v. Godfrey, 437. 
 Calvo V. Railro^ Co., 626. 
 Camenzind v. Freeland Furniture Co., 
 60S, 610, 634. 
 Cameron v. Hicks, 466. 
 Cameron-Barkley Co. v. Thornton 
 
 Light & Power Co., 555. 
 Camp V. Smith, 217. 
 CampbeU v. Campbell, 251, 356, 360. 
 
 Campbell v. Faxon, Horton & Gal- 
 lagher, 594. 
 
 Campbell v. FIchter, 429. 
 
 Campbell v. Gullatt, 42. 
 
 Campbell v. Heuer, 86. 
 
 Campbell v. Kuhn, 544. 
 
 Campbell v. Mansfield, 398. 
 
 CampbeU v. O'Neill, 413, 415, 443. 
 
 Campbell v. Rust, 599. 
 
 Campbell v. Stakes, 524, 526. 
 
 Campbellw. Wallace, 561. 
 
 Campbell v. Williams, 444. 
 
 Campbell's Adm'r v. Gullatt, 39, 44. 
 
 Campbell's Estate, In re, 52, 295. 
 
 Campion v. Cotton, 216, 221. 
 
 Canal Bank v. Partee, 205. 
 
 Canale v. People, 23. 
 
 Canby's Lessee v. Porter, 141. 
 
 Candy v. Hanmore, 444. 
 
 Candy v. Soppock, 157. 
 
 Caney v. Bond, 428. 
 
 Cannon v. Alsbury, 23, 38, 39, 477. 
 
 Cannon v. Cannon, 299. 
 
 Canovar v. Cooper, 355, 360, 362. 
 
 Cantelou v. Doe, 31. 
 
 Cantine v. Phillips' Adm'r., 477, 481. 
 
 Cassady v. Magher, 557. 
 
 Cany v. JIalleck, 605. 
 
 Cany v. Patton, 174. 
 
 Capehart v. Huey, 425. 
 
 Capel V. Powell, 97, 98. 
 
 Gapen v. Garrison, 437. 
 
 Caplinger t. Stokes, 420. 
 
 Capper v. Railroad Co., 628. 
 
 Cal)ps V. University of Chicago, 581. 
 
 Caras v. Hendrix, 6. 
 
 Carbajal v. Fernandez, 250. 
 
 Card V. Eddy, 632. 
 
 Cardwell, Guardianship of, 443. 
 
 Carey v. Carey, 245. 
 
 Carey v. Hertel, 352. 
 
 Carey v. Mackey, 340. 
 
 Carey v. Rochereau, 656. 
 
 Cargill v. Cargill, 262. 
 
 Carle v. Heller, 200. 
 
 Carleton v. Haywood, 96, 97, 98. 
 
 Carleton v. Lovejoy, 128. 
 
 Carleton v. Rivers, 125. 
 
 Carlisle v. Tuttle, 393. 
 
 Carlisle v. U. S., 562. 
 
 Carlson v. Railway Co., 608. 
 
 Carmichael v. State, 39, 43, 44. 
 
 Carne v. Brice, 129. 
 
 Carpenter, In re, 193. 
 
 Carpenter v. Buftalo General Electric 
 Co., 315. 
 
 Carpenter v. Carpenter, 202, 252, 255, 
 493, 538. 
 
CASES CITED 
 [The figures refer to pages] 
 
 66» 
 
 Carpenter v. Comings, 227. 
 
 Carpenter v. McBride, 423. 
 
 Carpenter v. Mitchell, 161, 207, 212. 
 
 Carpenter v.-lBodgers, 555. 
 
 Carpenter v. Soloman, 451. 
 
 Carpenter v. Whitman. 305, 306. 
 
 Carr v. Carr, 180, 250, 349, 351. 
 
 Carr v. Clough, 493, 510. 
 
 Carr v. HoUiday, 542. 
 
 Carr v. Spannagel, 452. 
 
 Carr v. State, 530. 
 
 Carr v. Taylor, 133. 
 
 Carrier v. Sears, 540, 544. , 
 
 Carrillo v. McPMllips, 428. 
 
 Carris v. Carris, 10, 12, 60. 
 
 Carrol v. Bird, 601. 
 
 Carrol v. Blencow, 158. 
 
 Carroll, In re, 81, 315. 
 
 Carroll v. Carroll, 64. 
 
 CarroU's Estate, In re, 312, 316. 
 
 Carson v. Berthold & Jennings Lumber 
 , Co., 232. 
 
 Carson v. Carson, 200. 
 * Carson v. Murray, 240, 241. 
 
 Carstens v. Hanselman, 83. 
 
 Carter v. Bolster, 534. 
 
 Carter v. Carter, 137, 196. 
 
 Carter v. Howard, 175, 179. 
 
 Carter v. McDermott, 606,. 608, 609, 
 611. 
 
 Carter v. Railway Co., 650. 
 
 Carter v. State, 470. 
 
 Carter v. Tice, 447, 448. 
 
 Carter v. Towne, 521. 
 ' Carter v. Veith, 31. 
 
 Carteret v. Paschal, 134. 
 
 Cartwright v. McGown, 32, 45, 47, 48, 
 53, 57, 61. 
 
 Carty v. Carty, 246. 
 
 Cary v. Gary, 419. 
 
 Cary v. Dixon, 205. 
 
 Casement v. Callaghan, 474, 505. 
 
 Case Threshing Mach. Co. v. Wiley, 
 154. 
 
 Casey v. Casey, 250. 
 
 Casey-Hedges Co. v. Oliphant, 613. 
 
 Cash V. Cash, 64. 
 
 Cashman v. Henry, 209. 
 
 Cass, Succession of, 454. 
 
 Cass County v. Nixon, 462. 
 
 Cassady v. Magher, 557. 
 
 Cassedy v. Casey, 420. 
 
 Cassin v. Delany, 96, 97, 98. 
 
 Castanedo v. Fortier, 256. 
 
 Casteel v. Brooks, 109. 
 ' Castillo V. Castillo, 131. 
 
 Castner Electrolytic Alkali Co. v. Da- 
 vies, 625. 
 
 Caswell V. Caswell, 270. 
 
 Caterall v. Kenyon, 96. 
 
 Cathcart v. Robinson, 237. 
 
 Oatlin V. Haddox, 498. 
 
 Catou V. Caton, 226, 272. 
 
 Oaughe3^ v. Smith, 385, 642, 643. 
 
 Caujolle V. Ferrie, 61. 
 
 Caulk V. Fox, 216. 
 
 .Cavanagh v. Dinsmore, 648. 
 
 Cave V. Cave, 296. 
 
 Cave V. Roberts, 145. 
 
 Cavell V. Prince, 30, 57. 
 
 Cawthorne. v. Cordrey, 579. 
 
 Caylor v. Roe, 226. 
 
 Caylor Lumber Co. v. Mays, 193. 
 
 Cayzer v. Taylor, 615. 
 
 Cazassa v. Cazassa, 391. 
 
 C. D. Smith & Co. v. Ohler, 596. 
 
 Cecil V. Salisberry, 502. 
 
 Cennell v. Oscar Daniels Co., 639. 
 
 Central Granaries Co. v. Ault, 608. 
 
 Central of Georgia R. Co. v. Cheney. 
 
 127. 
 Central Ry. Co. v. Peacock, 650. 
 Central Trust Co. v. McCarroU, 705. 
 Cevene v. Cevene, 253. 
 Chace, Ex parte, 68, 70, 71, 76. 
 Chaddock College v. Bretherick, 592. 
 Chaloner v. Sherman, 534. 
 Chaloux V. International Paper Co., 
 
 355, 361.' 
 Chamberlain v. Chambet'lain, 51. 
 Chamberlain v. Townsend, 87. 
 Chambers v. Chambers, 309/ 
 Chambers v. Chattanooga Union Ry. 
 
 Co., 488, 494. 
 Chambers v. Perry, 130. 
 Chambers v. Woodbury Mfg. Co. of 
 
 Baltimore County, 613, 615. 
 Chamblee v. Baker, 588. 
 Champlain v. Stamping Co., 597. 
 Champlin v. Champlin, 240. 
 Chancey v. Whinnery, 64. 
 Chandler v. Chandler, 349, 351. 
 Chandler v. Com., 531. 
 Chandler v. Deaton, 335. 
 Chandler v. Jones, 513. 
 Chandler v. Simmons, 496, 500, 510, 
 
 511, 512. 
 Chapin v. Shafer, 506. 
 Cbfi'^lin V. Illinois Terminal R. Co., 
 
 633. 
 Chapline v. Moore, 330. 
 Chapline v. Stone, 18. 
 Chapman v. Chapman, 39. 
 Chapman v. Duffy, 496. 
 Chapman v. Hughes, 481, 519. 
 Chapman v. Tibbits, 441. 
 Chapman v. Underwood, 647. 
 
670 
 
 CASES CITED 
 [Tbe figures refer to pages] 
 
 Chappie V. Cooper, 481, 485. 
 
 Chapsky v. Wood, 346, 347, 349, 352, 
 
 353, 354. 
 Charles v. Andrews, 217. 
 Charles v. Hastedt, 528. ' 
 Charles v. Witt, 419, 436, 444. 
 Charles M. Decker & Bros. v. Moyer, 
 
 176. 
 Charlton v. Jackson, 337. 
 Charron v. Day, 83. 
 Charron v. Union Carbide Co., 615. 
 Chase v. Blkins, 359, 364,. 365. 
 Chase v. Fitz, 226. 
 Chase v. Knabel, 648. 
 Chase v. McKenzie, 146. 
 Chase, v. Smith, 360, 363. 
 Chastain v. Johns, 335. 
 Chattahooohee Brick Co. v. Braswell, 
 
 620. 
 Chatterton v. Chatterton, 262. 
 Cheatham v. Cheatham, 253. 
 Cheely v. Clayton, 245, 287. 
 Cheeney v. Steamship Co., 627. 
 Cheever v. Kelly, 333. 
 Cheever v. Wilson, 187, 246. 
 Chehak v. Battle, 319. 
 Chenall v. Palmer Brick Co., 622. 
 Chenery's Estate, In re, 445. 
 Cheney v. Arnold, 44, 45, 53. 
 Cheney v. Eoodhouse, 435, 456. 
 Chesapeake, O. & S. W. R. Co. v. Mc- 
 Dowell, 620. 
 Chesapeake & O. Ey. Co. v. De Atlev, 
 
 368, 369, 370. 
 Cheshire v. Barrett, 501, 502. 
 Chesson v. Walker, 625. 
 Chew V. Bank of -Baltimore, 540. 
 Chew's Estate, In re, 454. . 
 Chicago Anderson Pressed-Brick Co, 
 
 V. Sobkowiak, 629, 630. 
 Chicago, B. & Q. R. (lo. v. Abend, 609. 
 Chicago, B. & Q. R. Co. v. Avery, 607, 
 
 614, 626. 
 Chi(fago, B. & Q. R. Co. v. Dickson, 
 
 651. 
 Chicago, B. & Q. R. Co. v. Dunn, 109. 
 Chicago, B. & Q. R. Co. v. McLallen, 
 
 612. 
 Chicago, B. & Q. R. Co. v., Merckes, 
 
 617. 
 Chicago City R. Co. v. McMahon, 646. 
 Chicago City R. Co. v. Wilcox, 523. 
 Chicago Drop Forge & Foundry Co. v. 
 
 Van Dam, 620. 
 Chicago Great Western R. Co. v. Grot- 
 ty, 619. ^ 
 Chicago, I. & L. Ry. Co. v. Barker, 
 
 625, 631. 
 
 Chicago, K. & W. R. Co. v. Blevins, 
 
 608. 
 Chicago, M. & St. P. R. Co. v. Elley, 
 
 617. 
 Chicago, M. & St. P. R. Co. v. Ross, 
 
 628, 631. 
 Chicago Rys. Co. v. Industrial Board, 
 
 637. 
 Chicago, R. I. & P. Ry. Co. v. Bennett, 
 
 653. 
 Chicago, St. P., M. & O. Ry. Co. v. 
 
 Ijundstrom, 630. 
 Chicago Telephone Co. v. Schulz, 476, 
 
 495. 
 Chicago & A. B. Co. v. Becker, 521. 
 Chicago & A. R. Co. v. Mahoney, (>09. 
 Chicago & A. R. Co. v. Walters, 617. 
 Chicago & E. I. R. Co. v. Kimmel, 622, 
 
 630. 
 Chicago & E. R. Co. v. Flexman, 650. 
 Chicago & M. Electric R. Co. v. Kremp- 
 
 el, 108, 112. 
 Chicago & N. W. R. Co. v. Jackson, 
 
 607. 1 
 
 Chicago & N. W. R. Co. v. Moranda, 
 
 611, 632, 633. 
 Chicago & N. W. R. Co. v. Scheurlng, 
 
 608. 
 Chickering-Chase Bros. Co. v. L. J. 
 
 White & Co., 84. 
 Chilcott V. Trimble, 323. 
 Child V. Detroit Mfg. Co., 602. 
 Childress v. Cutter, 302. 
 Childress v. State, 463, 464. 
 Childs V. Childs, 256. 
 Chiles V. Drake, 50. 
 Chilson V. Philips, 356, 362. , 
 Chinn v. State, 27. 
 Chipchase v. Chipchase, 265. 
 Chlpley V. Atkinson, 644, 645. 
 Chirac v. Chirac's Lessee, 566, 568. 
 Chittenden v. Chittenden, 32. 
 Choctaw, O. & G. R. Co. v. Doughty, 
 
 628. 
 Choctaw, O. & G. R. Co. v. Jones, 619. 
 Choen v. Porter, 101. 
 Choice V. State. 558. 
 Chopin V. Combined Locks Paper Co., 
 
 610. 
 Chopin V. Paper Co., 613. 
 Chorn v. Chorn's Adm'r, 198. 
 Chorpenning, Appeal of, 418, 419. 
 Christensen v. Johnston, 102. 
 Christian v. Hanks, 217. 
 Christlanberry v. Christianberry, 284. 
 Christiansen, In re, 292. , 
 
 Chubb V. Bradley, 313. 
 Church V. Church, 283. 
 
CASES CITED 
 [Tlie figures refer to pages] 
 
 671 
 
 Church V. McLennan, 148. 
 
 Church V. Rosenstein, 543. 
 
 Church V. Winchester Repeating Arms 
 
 Co., 631. 
 Churchill v. Jackson, 399. 
 Churchill v. White, 526. 
 Cicotte V. Catholic Church, 576. 
 Cincinnati, H. & D. R. Co. v. McMul- 
 
 len, 626, 627. 
 Cincinnati, I. & C. R. Co. v. Clarkson, 
 
 606. 
 Cincinnati Traction Co. v.. Pierman, 
 
 627. 
 Citizens' Loan & Trust Co. v. Witte, 
 r 199. 
 Citizens' Sav. Bank & Trust Co. v. 
 
 Jenkins, 150. 
 Citizens' State Bank of Wood River v. 
 
 Smout, 207. 
 Citizens' St. R. Co. v. Twiname,. 111. 
 City Nat. Bank v. Dresdner Bank of 
 
 Bremen, 567. 
 City Nat. Bank v. HamUton, 187. 
 City of Albany v. Lindsey, 376. 
 City of Austin v. Colgate, 428. 
 City of Bloomlngton v. Annett, 109. 
 ' City of Chadron v. Glover, 109. 
 City of Chicago v. Major, 377. 
 City of Indianapolis v. Bly, 583. 
 Giiy of Jacksonville v. Allen, 597. 
 City of Milwaukee v. Althoff, 641. 
 City of New York v. Chelsea Jute 
 
 Mills, 462. 
 City of San Antonio v. Wildenstein, 
 
 151. 
 Cizek V. Cizek, 243. 
 Clague V. Clague, 277, 280, 281. 
 Clanton's Estate and Guardianship, 
 
 In re, 536. 
 Clapp V. Clapp, 283. 
 Clapp V. FuUerton, 554. 
 Clapp V." Inhabitants, 133, 141. 
 Claridge v. Evelyn, 467. 
 Clark, Case of, 599. 
 Clark, In re, 409. 
 Clark V. Baker, 199. 
 Clark V. Barney, 52, 53. 
 Clark V. Bayer, 350, 353, 372, 374, 
 
 376. 
 Clark V. Bumside, 436. 
 Clark V. Clark, 32, 149. 
 Clark V. Field, 7, 13, 48, 60. 
 Clark v. Fitch, 364, 371, 380, 381. 
 Clark V. Fosdick, 240. 
 Clark V. Garfield, 434, 435. 
 Clark V. Gilbert, 594. 
 Clark V. Goddard, 476. 
 Clark v. Kidd, 502. 
 
 Clark v. Koehler, 648. 
 
 Clark V. Manchester, 598. 
 
 Clark V. Marsiglia, 587. 
 
 Clark v. Miller, 184. 
 
 Clark V. Montgomery, 410. 
 
 Clark V. Norwood, 153. 
 
 Clark V. Pendleton, ,227. 
 
 Clark V. Railroad Co., 654. 
 
 Clark V. Smith, 386, 454. 
 
 Clark V. Tate, 507. 
 
 Clark V. Tenneson, 180. 
 
 Clark V. Turner, 468. 
 
 Clark V. Van Court, 505. 
 
 Clark's Ex'r v. Trail's Adm'rs, 535. 
 
 Clarke, Appeal of, 140. 
 
 Clarke v. Burke, 180. 
 
 Clarke v. Cordis, 407. 
 
 Clarke v. Leslie, 479, 482. 
 
 Clarke v. McCreary, 197. 
 
 Clarke v. Morey, 567. 
 
 Clarkson V. Hatton, 317. 
 
 Clarkson v. Washington, 42, 50. 
 
 Clary v. Spain, 467. 
 
 Clauer, Appeal of, 301. 
 
 Clawson v. Doe, 507. 
 
 Claxton V. Pool, 101. 
 
 Clay V. Clay, 431, 434. 
 
 Clajr V. Shirley, 362. 
 
 Clayton v. Haywood, 62. 
 
 Clayton v. McKinnon, 424. 
 
 Clayton v. Warden, 43. 
 
 Clegg V. Seaboard Steel Casting Co., 
 
 610, 624, 626. 
 Clem V. Holmes, 381. 
 Clement, Apical of, 453, 454: 
 Clement v. Mattison, 20, 177, 260. 
 Clements, In re, 315. 
 Clements v. Elizabeth City Electric 
 
 Light & Power Co., 608. 
 Clemmer v. Price, 474, 477, 488, 494. 
 Cleveland, C. C. & St. L. Ry. Co. v. 
 
 Austin, 624. 
 Cleveland, C. C. & St. L. Ry. Co. v. 
 
 Jenkins, 601. 
 Cleveland, C. C, & St. L. Ry. Co. v. 
 
 Osgood, 566. 
 Cleveland, C. C. & St. L. Ry. Co. v. 
 
 Scott, 633. 
 Cleveland, C. & C. R. Co. v. Keary, 
 
 630. ' 
 Clifton V. Clifton, 80. 
 Clinchfleld Coal Corporation v. Redd, 
 
 652. 
 Clinton v. Clinton, 253. 
 Clisby V. Clisby, 81. * 
 Clopton V. Clopton, 217. 
 Close V. Close, 251, 253. 
 Clossman v. Lacostt, 599. 
 Clothier v. Sigle, 176. 
 
€72 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Cloud V. Hamilton, 362. 
 
 Clouser v. Clapper, 122. 
 
 Clow V. Brown, 235. 
 
 Clow V. Chapman, 120." 
 
 Clowes V. Clowes, 265. 
 
 Clyde V. Steger «& Sons Piano Mfg. 
 Co., 494. 
 
 Coad V. Goad, 2, 8, 43, 50. 
 
 Goakley v. Coakley, 826. 
 
 Coal Belt Electric E. Co. v. Young, 
 647. ' 
 
 Coal Creek Mining Co. v. Davis, 618. 
 
 Coates V. Wilson, 484. 
 
 Cobb V. Klosterman, 466. 
 
 Cochran v. Cochran, 275, 281, 360. 
 
 Cochran v. State, 558. 
 
 Cochrane, In re, 78. 
 
 Cockrill V. Cocki?ill, 556. 
 
 Cocksedge v. Cocksedge, 283. 
 
 €ody V. Longyear, 626. 
 
 Goe V. Hill, 5, 6. . 
 
 Coe V. Moon, 504, 512, 516. 
 
 Goe V. Sloan, 466. 
 
 Coe V. Smith, 605. 
 
 Coffin V. Dunham, 180. 
 
 Coffin V. Landis, 583. 
 
 Coggins V. Flythe, 429, 443. 
 
 Cogley V. Cushman, 493, 508. 
 
 Cohen v. Cohen, 6, 243, 566. 
 
 Gohen v. New York Mut. Life Ins. 
 Co., 568. 
 
 Colbert v. Daniel, 128. 
 
 Colbert v. Kings, 218, 223. 
 
 Cole V. American Baptist Home Mis- 
 sion Soc, 217< 221. 
 
 Cole V. Cole, 18, 20, 255. 
 
 Cole V. Cole's Ex'rs, 150. 
 
 Cole V. Durham, 652. 
 
 Gole V. Pennoyer, 474, 475. 
 
 Cole V. Searfoss, 521. 
 
 Cole V. Seeley, 184, 477. 
 
 Cole V. Shurtleff, 183, 184. 
 
 Cole V. Van Riper, 194, 202, 208. 
 
 Cole Bros. v. Wood, 627. ' 
 
 Coleman v. Burr, 127. 
 
 Coleman v. Coleman, 18, 160, 260. 
 
 Coleman v. Commissioners of Lunatic 
 Asylum, 534. 
 
 Coleman v. James, 50. 
 
 Coleman v. Swick, 3l7. 
 
 Coleman v. White, 121. 
 
 Coles, In re, 164. 
 
 Coles V. Trecothick, 225, 226. 
 
 CoUamore v. Learned, 311, 312. 
 
 Collar V. Patterson, 577. 
 
 CoUett V. Gojlett, 250, 283. 
 
 OoUett V. Houston & T. O. B. Co., 
 152. 
 
 <!ollier v. Doe ex dem. Alexander, 206. 
 
 Collins V. Bauman, 215. 
 
 Collins V. Collins, 217, 241, 351. 
 
 Collins V. GifCord, 526. 
 
 Collins V. Gooch, 426, 434. 
 
 Collins V. Mitchell, 176. 
 
 Collins y. Pecos, 613. 
 
 Collins V. State, 558. 
 
 Collins V. Wassell, 188. 
 
 Colly V. Thomas, 379. 
 
 GoUyer v. OoUyer, 577. 
 
 CoUyer t. Moulton, 587. 
 
 Colombine. v. Penhall, 222. 
 
 Colonial Bldg. & Loan "Ass'n v. Grif- 
 fin, 211. 
 
 Colonial, etc., Mortgage Co. v. Brad-*, 
 ley, 205. 
 
 Colorado Mill & Elevator Co. v. Mit- 
 chell, 635. 
 
 Colt V. Colt, 469, 470. 
 
 Goltman v. Hall, 408. 
 
 Columbian Enameling & Stamping 
 Go. V. Burke, 607, 608. 
 
 Columbus, C. & I. C. Ey. Co. v. 
 TroBSch, 608, 611. 
 
 Columbus E. Co. v. Wooldolk, 647. 
 
 Columbus & W. Ey. Co. v. Bradford, 
 633. 
 
 Golvin V. Currier, 195, 209. 
 
 Golvin's Estate, In re, 451. 
 
 Combs v. Combs, 58. 
 
 Combs v. Hawes, 508. 
 
 Combs V. Jackson, 397. 
 
 Combs V. Rountree Const. Co., 616. 
 
 Comer v. Comer, 391. 
 
 Comes v. Lamson, 579. 
 
 Com. V. Addicks, 348, 349. 
 
 Com. V. Baird, 601. 
 
 Com. V. Barney, 353. 
 
 Com. V. Barry, 80. 
 
 Oom. V. Blaker, 340. 
 
 Com. V. Boyer, 64. 
 
 Com. V. Briggs, 349. 
 
 Com. V. Burk, 91. 
 
 Com. V. Butler, 91. 
 
 Com. V. CofCey, 340, 341. 
 
 Com. V. Daley, 90, 91, 92. 
 
 Com. V. Demott, 349. 
 
 Com. V. Eagan, 92. 
 
 Com. V. Farmers' & Shippers' Tobacco 
 Warehouse Co., 54. 
 
 Com. V. Pee, 305, 306. 
 
 Com. V. Feeney, 91. 
 
 Com. V. Gamble, 478. 
 
 Com. V. Graham, 68, 70, 71, 360. 
 
 Com. V. Green, 531. 
 
 Com. V. Hamilton, 325. 
 
 Com. V. Hartnett, 93. 
 
 Cbm. V. Hawkins, 557. 
 
 Com. V. Heath, 549. 
 
CASES CITED 
 [The figures refer to pages] 
 
 673 
 
 Com. V. Lane, 68, 69. 
 
 Com.'v. Lee, 330, 415. 
 
 Com. V. Lynes, 471. 
 
 Com. V. McAfee, 80, 94. 
 
 Com. V. Mead, 530. 
 
 Com. V. Munsey, 91, 92, 98. 
 
 Com. V. Murray, 355, 478. 
 
 Com. V. Nance, 462. 
 
 Com. V. Nancrede, 316. 
 
 Com. V. Neal, 90, 91. 
 
 Com. V. Ferryman, 28, 66. 
 
 Com. V. Powell, 462. 
 
 Com. V. Richards, 240. 
 
 Com. V. Rogers, 550. 
 
 Com. V. Seed, 341, 342. 
 
 Com. V. Strickland, 346. 
 
 Com. V. Stump, 44 49, 50. 
 
 Com. V. Whitney, 268. 
 
 Com. V. Wills, 462. 
 
 Com; V. Wormser, 462. 
 
 Compton V. Benham, 51. 
 
 Conant v. Burnham, 181. 
 
 Conant v. Conant, 283. 
 
 Conant v. Kendall, 455. 
 
 Concord Bank v. Bellis, 165. 
 
 Condon v. Churchman, 448. 
 
 Condon v. Railway Co., 377. 
 
 Cone V. Cross, 577. 
 
 Cone V. Railway Co., 607. 
 
 Conger v. Conger, 263. 
 
 Congrave v. Southern Pac. R. Co., 633. 
 
 Congreve v. Smith, 654. 
 
 Conine v. Olympia Logging Co., 622. 
 
 Conkey v. Dickinson, 444. 
 
 Conklin v. Thompson, 524. 
 
 Conkling v. Doul, 163. 
 
 Conkling v. Levie, 199, 207. 
 
 Conley v. Nailor, 555. 
 
 Conlin v. Conlin, 264. 
 
 Conn V. BoutweU, 507, 517. 
 
 Conn V. Coburn, 482, 483. 
 
 Conn V. Conn, 324, 327. 
 
 Connell v. Moore, 406. 
 
 Connella v. Connella, 242. 
 
 Connelly v. Michigan Cent. R. Co., 
 
 688. 
 Connelly v. Weatherly, 451. 
 Connelly Mfg. Co. v. Wattles, 602. 
 Conner, In re, 406. 
 Connolly v. Connolly, 245. 
 Connolly v. Reed, 564, 565. 
 Connor v. Berry, 184. 
 Connor v. Stanley, 224. 
 Connors v. Connors, 38, 39. 
 Connors v. Justice, 589. 
 Conover, In re, 458. 
 Conrad v. Abbott, 171. 
 Conrad v. Charles A. Stevens & Bros., 
 
 610. 
 
 TIFF.P.& D.Rki,.(3d Ed.)— 43 
 
 Conrad v. Lane, 490. 
 
 Conron v. Cauchois, 199. 
 
 Oohroy v. Morrill & Whiton Const. 
 Co., 607. 
 
 Consolidated Arizona Smelting Co. v. 
 Ujack, 637. 
 
 Consolidated Coal Co. of St. Louis v. 
 Haenni, 619. 
 
 Consumers' Lignite Co. v. James, 596. 
 
 Converse's Bx'r v. Converse, 552. 
 
 Conway v. Beazley, 69. 
 
 Conway v. Clark, 470. 
 
 Conway v. Nicol, 121. 
 
 Conway v. Reed, 524. 
 
 Conway v. Smith, 161, 195, 208, 213. 
 
 Cook V. Bartlett, 382. 
 
 Cook V. Bybee, 344, 352. 
 
 Cook V. Cook, 34, 252, 263, 290. 
 
 Cook V. MeCabe, 594. 
 
 Cook V. Wood, 122. 
 
 Cooke V. Beale, 454. 
 
 Cooke V. Bremond, 153. 
 
 Cookson V. Toole, 195, 208, 213. 
 
 Cooley V. Dewey, 307. 
 
 Cooley V. Powers, 309. 
 
 Cooley V. Stringfellow, 330, 389. 
 
 Coombs V. Cordage Co., 609, 613, 619. 
 
 Coombs V. Read, 196. 
 
 Coon V. Moffet, 380,-384. 
 
 Cooner v. May, 391. 
 
 Cooper, In re, 458, 454. 
 
 Cooper V. Burel, 205. 
 
 Cooper V. Cooper, 117, 149, 253, 254, 
 264. 
 
 Cooper V. Crane, 15. 
 
 Cooper V. Haseltine, 180. 
 
 Cooper V. Lloyd, 177. 
 
 cooper V. Lowery, 652. 
 
 Cooper V. Simmoijs, 484. 
 
 Cooper V. State, 601. 
 
 Cooper V. Strong & Warner Co., 586. 
 
 Cooper V. Witham, 99. 
 
 Cope V. Cop^, 299, 802. 
 
 Copeland v. Copeland, 14, 62, 68, 64. 
 
 Copeland v. Jordan, 132. 
 
 Copley V. O'Neil, 435. 
 
 Copp V. Copp, 899, 453, 454, 455. 
 
 Coppedge v. Threadgill, 137. 
 
 Copsey V. Copsey, 278. 
 
 Coral Ridge Clay Products Co. v. Col- 
 lins, 609. 
 
 Corbett v. Sloan, 199, 288. 
 
 Corbett v. Spencer, 506. 
 
 Corbin v. American Mills, 653. 
 
 Corcoran v. Allen, 434. 
 
 Corcoran v. Holbrook, 626, 629. 
 
 Corcoran v. Kostrometinoff, 426. 
 
 Corcoran v. Renehan, 431, 
 
 Cordes v. Miller, 593. 
 
674 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Cordova, In re, 406. 
 
 Core V. Railroad Co., 627. 
 
 Corgan y. Geo. F. Lee Coal Co., 582, 
 
 592, 593. 
 Gorigsby v. Reib, 8. , 
 
 Cork & B. Ky. Co. v. Cazenove, 490. 
 Corker v. Corker, 214. 
 Cormaek v. Marshall, 345, 352. 
 Cormlek's Estate, In re, 127- 
 Cornelia v. Ellis, 483. 
 Cornish v. Cornish, 264. 
 Corpe V. Overton, 514, 518. 
 Corrie v. Corrie, 845, 347. 
 Corrigan v. Kiernan, 398. 
 Cort V. Lassard, 600. 
 Corwin's Appeal, 406. 
 Cory V. Cook, 126. 
 Cory V. Gertcken, 528. 
 Cosgrove v, Ogden, 647, 648. 
 Cosio V. Antonio, 301. 
 Costigan v. Railroad Co., 597. 
 Cothran v. Lee, 171, 180. 
 Cotteen v. Missing, 231. 
 Cotten V. Friedman, 151. 
 Cotter V. Cotter, 243, 392. 
 Cotton V. Cotton, 155. 
 Cotton V. State, 458. 
 Cotton's Guardian v. Wolf, '452. 
 Coughlan v. Philadelphia, B. & W. R. 
 
 Co., 613, 614. 
 Coughtry v. Woolen Co., 623. 
 Coulter V. Hermitage Cotton Mills, 
 
 109. 
 Coulter Dry Goods Co. v. Munford, 
 
 172. 
 Council V. Pridgen, 164, 203. 
 Coursey v. Coursey, 251. 
 Coursolle v. Weyerhauser, 474. 
 Courtois V. King Paper Co., 633. 
 Courtright v. Courtright, 70, 324, 327. 
 Cousen v. Cousen, 251. 
 Cousins Y. Boyer, 325, 331. 
 Goutts V. Greenhow, 222? 
 Covault V. Nevitt, 473, 492, 524. 
 Covel V. Turner, 576, 577. 
 Covenhoven, In re, 534. 
 Covey V. Leslie, 419, 426. 
 Covey V. Neff, 424. 
 Covington v. Leak, 428, 434. 
 Covington St. Ry. Co. v. Packer, 377. 
 Cowan V. Anderson, 469. 
 Cowan V. Musgrave, 577. 
 Cowden v. Oowden, 391. 
 Cowden v. Wright, 367, 368, 375. 
 Cowie V. Strohemeyer, 466. 
 Cowles V. Cowles, 251, 259. 
 Cowley V. People, 462. 
 Cowls V. Cowls, 345, 347, 351, 453. 
 
 Cox, In re, 637. 
 
 Cox V. Boyce, 393. 
 
 Cox V. Cox, 264. 
 
 Cox V. Hoffman, 169. 
 
 Cox V. Keahey, 649. 
 
 Cox V. Manvel, 438. 
 
 Cox V. Osage County, 534. 
 
 Cox V. Rash, 309. 
 
 Cox V. St. Louis, M. & S. B. E. Co., 
 
 110. 
 Cox V. Scott, 133. 
 Cox's Adm'r v. Wood, 212. 
 Coy V. Humphreys, 3. 
 Cozard v. Cozard, 278. 
 Cozine v. Horn, 404. 
 Cozza, In re, 311, 313, 316. 
 Crabtree v. May, 5p4. 
 Craig v. Bradley, 149. 
 Craig V. Leslie, 565. 
 Craig V. Shea, 296. 
 Craig V. Van Bebber, 502, 507, 512. 
 Craighead v. Wells, 509. 
 Craker v. Railway Co., 650. 
 Cram v. Burnham, 53. 
 Cramsey v. Sterling, 50. 
 Crane, In re, 72. 
 Crane v. Crane, 9, 11. 
 Crane v. Gough, 226. 
 Crane v. Meginnis, 292. 
 Crane v. Reeder, 561, 564. 
 Crane v. Stafford, 469. 
 Cranston v. Cranston, 196. 
 Crapps V. Smith, 23. 
 Crashley v. Press Pub. Co., 563. 
 Crawford v. Crawford, 403. 
 Crawford v. Mail & Express Pub. Co., 
 
 582. 
 Crawford v. State, 35. 
 Creagh v. Tunstall, 536. 
 Creasey v. Creasey, 260. 
 Creed v. Hartmann, 654. 
 Cregan v. Marston, 623. 
 Crehore v. Crehore, 12. 
 Cresinger v. Welch's Lessee, 506. 
 Creuze v. Hunter, 418. 
 Crewe v. Crewe, 276, 277. 
 Crew-Levick Co. v. Hull, 487. 
 Crickett v. Hardin, 62. 
 Crim V. Crim, 283. 
 Crisfield v. Banks, 83. 
 Crispin v. Babbitt, 625. 
 CrJswell V. Criswell, 494. 
 Criswell v. Noble, 565. 
 Oritchfleld v. Easterday, 538. 
 Croan v. Phelps' Adm'r, 307, 308. 
 Crochet v. McCamant, 150. 
 Crocker v. Crocker, 118. 
 Crockett v. Calvert, 651i 
 
CASES CITED 
 [The figures refer to pages] 
 
 675 
 
 Crombie v. McGrath, 572. 
 Cromwell v. Benjamin, 175. 
 Cronemillar v. Duluth-Superior MiU- 
 
 ibg Co., 584, 596. 
 Cronlse V. Cronise, 292. 
 Crook V. Hill, 3Q6. 
 Crooks V. Crooks, 232. 
 Crooks V. Turpen, 401. 
 Groom v. Whitehead, 300. 
 Cropper v. Bowles, 198, 203. 
 Cropsey v. McKinney,' 128, 163. 
 Crosbie v. Hurley, 467. 
 Crosby, In re, 442. 
 Crosby v. Ardoin, 496. 
 Crosby v. Clem, 160. 
 Crosby v. Crosby, 409. 
 Crosby v. Cubs R. Co., 620. 
 Crosby v. Merriam, 431. 
 Crosby v. Otis, 128, 129. 
 Crosby v. Waters, 209. 
 Grose v. Rutledge, 120. 
 Cross, In re, 404. 
 Cross V. Armstrong, 289. 
 Cross V. Boston & M. R. Co., 614. 
 Cross V. Cross, 290, 296, 297, 298, 300. 
 Cross V. Kent, 546. 
 Grossman v. Grossman, 261. . 
 Grosswell's Petition, In re, 442. 
 Grostwaight v. Hutchinson, 215, 216. 
 Grounse v. Crounse, 257, 262, 266. 
 Grouse v. Wheeler, 72. 
 Crow V. Grow, 264. 
 Crowell, Appeal of, 401. 
 Crowley v. Crowley, 160. 
 Crowley v. Pacific Mills, 614, 617. 
 Crowley v. Savings Union Bank & 
 
 Trust Co., 234. 
 Gruger v. Heyward, 330. ' 
 Grum V. Sawyer, 205. 
 Crumb, Ex parte, 452, 453. 
 Crumlish v. Security Trust & Safe 
 
 Deposit Co., 215, 224. 
 Crump V. Guyer, 474. 
 Crump V. Morgan, 21, 59, 60, 244. 
 Crusoe V. Clark, 605. 
 Crutchfield, Ex parte, 406. 
 Cruz^n V. McKaig, 164. 
 Cuckson V. Stones, 594. 
 Cudahy Packing Go. v. Wesolowski, 
 
 614. 
 Cuff V. Railroad Co., 654. 
 Gulberhouse v. Hawthorne, 205. 
 Culberson v. Alabama Const. Co., ^,62. 
 CuUen V. Norton, 629. 
 Gulp V. Lee, 428. 
 Gulp V. Stanford, 457. 
 Gulp V. Wilson, 391. 
 Cumberland Pipe Line Co. v. Howard, 
 
 436. , 
 
 Cuming v. Brooklyn City R. Co., 369, 
 372, 374. 
 
 Gumming. V. Gumming, 277, 283, 286, 
 287. 
 
 Gummings v. Cummings, 444. 
 
 Cumner Parish v. Milton Parish, 393. 
 
 Cunningham v. Adna Mill. Co., 633. 
 
 Cunningham v. Cunningham, 32, 71, 
 401. 
 
 Cunningham v. Fonblanque, 589. 
 
 Cunningham v. Irwin, 177. 
 
 Cunningham v. Northwestern Improve- 
 ment Co., 637. 
 
 Cunningham v. R. Go. 525. 
 
 Cunningham v. Reardon, 182. 
 
 Cunningham v. Robison, 519. 
 
 Gupples' Estate, In re, 316. • 
 
 Guppy V. StoUwerck Bros., 584. 
 
 Curd V. Doods, 99. 
 
 Cureton v. Gureton, 83. 
 
 Cureton v. Moore, 184, 
 
 Ourlee v. , Reigler, 604. 
 
 Curlew V. Jones, 309. 
 
 Gurrier v. Teske, 232. 
 
 Curry v. Curry, 576, 577. 
 
 Curry v. Fulkinson's , Ex'rs, 133, 139. 
 
 Curtice Go. v. Kent, 518. 
 
 Curtin v. Patton, 504. 
 
 Curtis V. Brownell, 538. 
 
 Curtis V. Crowe, 149, 201, 204. 
 
 Curtis V. Curtis, 853. 
 
 Curtis V. Binneen, 103. 
 
 Curtis V. Dodd & Struthers, 585. 
 
 Curtis V. Bngel, 163. 
 
 Curtis V. Union Homestead Ass'n, 442. 
 
 Curtis Shumway v. Williams, 622. 
 
 Cushman v. Cushman, 21, 22, 283. 
 
 Cussons V. Skinner, 59?. 
 
 Cuthbertson v. State, 77. 
 
 Cutter V. PoweU, 588, 604. 
 
 D V. A, 29. 
 
 Dacey v. People, 550. 
 
 Dade v. Alexander, 129. 
 
 Daggy V. Miller, 524. 
 
 Dagley, Ex parte, 536. 
 
 Dagley v. Tolferry, 386. 
 
 D'Aguilar v. D'Aguilar, 251, 277, 278, 
 
 279, 280. 
 Daiger v. Dalger, 253, 256. 
 Dailey v. Houston, 96, 97. 
 Dailey v. Singer Mfg. Co., 207. 
 Daily v. Maxwell, 336. 
 Daily Telegraph Newspaper Co. v. 
 
 McLaughlin, 539. 
 Daimwood v. DriscoU, 495. 
 Dain v. WycofC, 371, 379, 382. 
 
676 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Dale V. Marvin, 86. 
 
 Dale V. Robinson, 190, 192. 
 
 Daley v. Norwich & W. R. Co., 523. 
 
 Dallas V. Heard, 188. 
 
 Dallas V. HoUingswortli, 505, 517. 
 
 Dallman y. Dallman, 34. 
 
 Dalrymple v. Dalrymple, 45, 48, 71. 
 
 Dalton V. Bradley Lumber Co., 519. 
 
 Dalton V. Dregge, 120, 121. 
 
 Daly V. Smith, 600. 
 , Damarell v. Walker, 453. 
 
 Damron v. Ratiiff, 492, 494, 502. 
 
 Dana v. Coombs, 503. 
 
 Dana v. Short, 596. 
 
 Dance v. Dance, 280. 
 
 Dance v. McBrlde, 121. 
 
 DanenhofEer v. State, 340. 
 
 Daniel v. Atlantic Coast Dine R. Co., 
 357, 362. 
 
 Daniel v. Daniel, 130. 
 
 Daniel v. Hill, 393, 417. 
 
 Daniel v. Newton, 405. 
 
 Daniel v. Sams, 42. 
 
 Daniel v. Swearengen, 643, 644. 
 
 Daniel v. Tolon, 326. 
 
 Daniels v. Johnston, 615. 
 
 Danley v. Rector, 388. 
 
 Darby v. Stribling, 430. 
 
 Darden v. Wyatt, 396, 406. 
 
 Dare v. Dare, 32, 34. 
 
 Dargie's Estate, In re, 152. 
 
 Darley v. Darley, 330. 
 
 Darling v. Denl^ 53, 68. 
 
 Darling's Estate, In re, 317, 318. 
 
 Darlington v. Hamilton Bank, 476, 
 494. 
 
 Darraugh v. Blackford, 502. 
 
 Darrigan v. Railroad Co., 628. 
 
 Darrow v. Darrow, 37. 
 
 Date V. New York Glucose Co., 612. 
 
 Daughterty r. Reveal, 472, 524. 
 
 Davenport v. Davenport, 260, 266, 302. 
 
 Davenport ■ v. Olmstead, 448. 
 
 Davidson v. Abbott, 376, 383, 384. 
 
 Davidson v. Cornell, 617, 619. 
 
 Davidson v. Goodall, 376, 384. 
 
 Davidson V: Graves, 222, 376. 
 
 Davidson v. Hutchins, 439. 
 
 Davidson v. I. M. Davidson Real Es- 
 tate & Invest. Co., 434. 
 
 Davidson v. Ream, 39, 44, 48, 59, 68, 
 69, 70. 
 
 Davidson v. Wampler, 437. 
 
 Davidson v. Young, 502, 504, 528. 
 
 Davies v. Davles, 217. 
 
 Davies v. Lockett, 468. 
 
 Davies v. Williams, 371. 
 
 Davis, Appeal of, 130. 
 
 Davis, In re, 61. 
 
 Davis, Succession of, 302. 
 
 Davis V. Baugh, 467. 
 
 Davis V. Caldwell, 486. 
 
 Davis v. Combs, 443. 
 
 Davis V. Compton, 154. 
 
 Davis V. Davis, 88, 155, 277, 27& 
 
 Davis v. Dudley, 502. 
 
 Davis V. Gray, 481. 
 
 Davis v. Hagler, 448. 
 
 Davis V. Harkness, 415. 
 
 Davis V. Hall, 561. 
 
 Davis v. Harman, 421. 
 
 Davis V. Hudson, 407. 
 
 Davis V. Krug, 316. , 
 
 Davis V. McGraw, 313. 
 
 Davis V. Milford, 309. 
 
 Davis V. Phillips, 538. 
 
 Davis V. Pryor, 42, 47, 50. 
 
 Davis V. Public Service Corp., 109. 
 
 Davis V. Railroad Co., 626, 634. 
 
 Davis V. Rhame, 129. 
 
 Davis V. Ritchey, 87. 
 
 Davis V. State, 90, 91. 
 
 Davis V. Stoufeer, 46, 47, 48. 
 
 Davis V. Whitiock, 10, 33, 51. 
 
 Davis' Adm'r v. Davis, 404, 454. 
 
 Davoue v. Fanning, 419. 
 
 Dawes v. Howard, 325. 
 
 Dawson v. Helmes, 506, 511, 512. 
 
 Dawson v. State, 557. 
 
 Dawson's Lessee v. Godfrey, 561, 564. 
 
 Day v. American Machinist Press, 592. 
 
 Day V. Bumham, 171. 
 
 Day V. Caton, 576. 
 
 Day V. Chicago, M. & St. P. R. Co., 
 
 630, 638. 
 Day V. Day, 253, 255, 282. 
 Day V. Everett, 356. 
 Day V. Louisiana Central Lumber Co., 
 
 637. 
 Daytoli V. Dusenbury, 196. 
 Dean v. Dean, 250. 
 Dean v. Peel, 371. 
 Dean v. State, 340, 341, 342. 
 Deare v. Soutten, 181. 
 Dearin v. Pitzpatriek, 136, 137. 
 De Baun v. Van Wagoner, 191. 
 De Baun's Ex'x v. De Baun, 193, 202. 
 Debenham v. Mellon, 170, 172, 173, 
 
 174. 
 De Blane v. Lynch, 153. 
 t>e Brauwere v. De Brauwere, 81, 82, 
 
 181, 326. 
 Decatur Car Wheel Co. v. Terry, 615, 
 
 617. 
 Decell V. Lewenthal, 487. 
 Deckard v. Macom, 326. 
 Decker v. Kedley, 82. 
 Decker & Bros. v. Moyer, 176. 
 
CASES CITED 
 [The figures refer to pages] 
 
 677 
 
 De Cloedt v. De Cloedt, 253. 
 De Constantin v. Public Service Com- 
 mission, 641. 
 Deese v. Deese, 167, 203. 
 Deford v. State, 468. 
 De Forrest v. Wrigbt, 653, 654. 
 Defries v. Davis, 524. 
 D. E. Hewitt Lumber Co. v. Cisco, 618. 
 Deibekis v. Link-Belt Co., 636. 
 Dejarnatte v. Allen, 141. 
 De Kay v. Oliver, 464. 
 De Lacey v. U. S., 566. 
 Delaney v. Delaney, 273. 
 Delaney v. Rochereau, 656. 
 Delano v. Blake, 494, 501. 
 Delaware, L. & W. R. Co. v. Jones, 
 
 112. 
 De Lesdemier v. De Lesdemier, 268. 
 Del Genovese's Will, In re, 32. 
 Deller's Estate, In re, 215, 216, 223, 
 
 224. 
 Delliber v. Delliber, 281. 
 Dellow's Estate, In re, 404. 
 Delpit V. Young, 16. 
 De Manneville v. De Manneville, 418. 
 De Marcellin, In re, 403. 
 De Mazar v. Pybus, 406. 
 De Meli v. De Meli, 253. 
 Deming v. WilUams, 281. 
 Dempsey v. Wells, 159. 
 Den ex dem. Hoyle v. Stowe, 506. 
 Dengate v. Gardiner, 108, 109, 111, 
 
 112. 
 Denison v. Comwell, 409. 
 Denison v. Denison, 41, 280. 
 Dennett v. Dennett, 141, 538, 539. 
 Dennis v. Clark, 324, 374. 
 Dennis v. Perkins, 241. 
 Dennison v. Dennison, 265. 
 Dennison v. Page, 294, SCO. 
 Dennison v. Willcut, 429. 
 Dennysville v. Trescott, 393. 
 Dent v. Dent, 278. 
 Denver Dry Goods Co. v. Jester, 176. 
 Denver & R. G. R. Co. v. Sporleder, 
 
 609. 
 Denver & R. G. R. Co. v. Warring, 
 
 617. 
 Derby v. Derby, 282. 
 Derocber v. Continental MUls, 509, 
 
 515, 517, 578. 
 Derosia v. Ferland, 598. 
 Derry v. Ducbess of Mazarine, 158. 
 Descelles v. Kadmus, 176. 
 Desbon v. Wood, 226. 
 Desilver's Estate, In re, 539. 
 Des Mond v. Kelly, 383. 
 Despain v. Wagner, 234. 
 De Tboren v. Attorney General, 50. 
 
 Detrick, Appeal of, 253. 
 
 Detroit Lubricator Co. v. Lavigne Mfg. 
 
 Co., 602. 
 Deutseh v. Roblfing, 194. 
 Devanbagh v. Devanbagh, 29, 30, 244. 
 Development Co. v. King, 590. 
 Devendorf v. Emerson, 175. 
 Deveos v. Deveos, 265. 
 Dever v. Seiz, 154. 
 Devers v. Devers, 243. 
 Devine v. American Posting Service, 
 
 442. 
 Devine v. Cbicago & C. R. Co., 621. 
 Devlin v. Smith, 614. 
 Devonish v. Imperial Invest. Corp., 
 
 622. 
 De Vries v. Crofoot, 539, 544. 
 De Vry v. De Vry, 260. 
 Dew v. Clarke, 553. 
 Dewey v. Detroit, G. H. & M. Ry. Co., 
 
 627. 
 Dewey v. School Dist., 594. 
 Dewitt V. Buchanan, 563. 
 Dexter v. Booth, 175. 
 Dexter v. Cranston, 439. 
 Dexter v. Hall, 539. 
 Dial V. Wood, 478. 
 Diaper V. Anderson, 443. 
 Dice V. Joliet Mfg. Co., 602. 
 Dick V. Grissom, 357, 360, 365. 
 Dick V. Railroad Co., 632. 
 Dickerson v. Bowen, 404, 405, 455. 
 Dickerson v. Brown, 44, 45, 49. 
 Dickerson v. Dickerson, 453. 
 Dickerson v. Gordon, 510. 
 Dickin v. Hamer, 145. 
 Dickinson, Appeal of, 308. 
 Dickinson v. Cranberry, 684. 
 Dickinson v. Norwegian Plow Co., 578. 
 Dickinson v. Talmage, 364. 
 Dickinson v. Winchester, 387. 
 Dickson v. Frisbee, 579. 
 Diefenback v. Stark, 604. 
 Dleringer v. Meyer, 592. 
 Dierker v. Hess, 359, 865. 
 Dies V. Winne, 48. 
 Dietz V. Big Muddy Coal & Iron Co., 
 
 637. 
 Dilk V. Keighley, 486. 
 Dilley v. Henry's Ex'r, 197. 
 Dillon V. Dillon, 279. 
 Dillon V. Lady Mount Cashell, 452. 
 Di Lorenzo v. Di Lorenzo, 11. 
 Dilts V. Steve'hson, 231. 
 Di Mareho v. Iron Foundry, 628. 
 ,'Dimpfel v. Wilson, 72, 271. 
 Disborough v. Dlsborough, 253. 
 Disbrow v. Durand, 577. 
 
678 
 
 CASKS CITED 
 [The figures refer to pages] 
 
 Disbrow v. Henshaw, 453. 
 
 Ditson V. Ditson, 3, 5, 244, 245, 287, 
 
 289. 
 Diver v. Diver, 149. 
 Dixon, In re, 454. 
 Dixon V. Hnrrell, 178. 
 Dixon V. Merrltt, 489, 506. 
 Dixon V. People, 64. 
 D. M. Smith's Committee v. Forsytlie, 
 
 542. 
 Doan V. Dow, 413, 414. 
 Dobbin v. Cordiner, 99, 100. 
 Dobbin v. Railroad Co., 629. 
 Dobbins v. Dexter Horton & Co., 199. 
 Dobbins v. Thomas, 206. 
 Dobra v. Lehigh Valley Coal Co., 621. 
 Docker v. Somes, 418. 
 Dr. S. S. Still College & Infirmary of 
 
 Osteopathy v. Morris, 200. 
 Dodd V. McCraw, 388. 
 Dodge V. Dodge, 276. 
 Dodge V. Rush, ll4, 119, 122, 123. 
 Dodson V. McAdams, 577. 
 Dodson V. McKelvey, 428. 
 Dodson-Braun Mfg. Co. v. Dix, 585. 
 Doe V. Bates, 309. 
 Doe V. Doe, 279. 
 Doe V. Jackson, 439. 
 Doe V. Manning, 237. 
 Doe V. PolRrean. 139. 
 Doe V. Reid, 357. 
 Doe V. Robertson, 564. 
 Doe V. Roe, 118, 123. 
 Doerr v. Daily News Pub. Co., 625, 
 
 629. 
 Doerr v. Forsythe, 289. 
 Doey V. Clarence P. Howland Co., 635. 
 Dohorty v. Madgett, 97. 
 Doles V. Hilton, 519. 
 DoUard v. Roberts, 368. 
 Dolph V. Hand, 502. 
 Dolphin V. Robins, 88. 
 Donahoe v. Richards, 367. 
 Donahue v. C. H. Buck & Co., 624. 
 Donald v. Ballard, 469. 
 Donald v. Donald, 252. 
 Donaldson v. State, 564, 565. 
 Donegan v. Davis, 359, 360. 
 Donehoo, Appeal of, 553. 
 Donk Bros. Coal & Coke Co. v. Retz- 
 
 lofC, 354, 360. 
 Donk Bros. Cokl & Coke Co. v. Thil, 
 
 624. 
 Donley v. Donley, 268. 
 Donlon v. Maley, 446. 
 Donnelly v. Donnelly's Heirs, 41. 
 Donnelly v. Strong, 10, 11. 
 Donnington v. Mitchell, 139. 
 
 Donohue v. Donohue, 8, 68. 
 
 Donovan, Appeal of, 212. 
 
 Donovan v. Donovan, 12. 
 
 Donovan v. Griffith, 147. 
 
 Donovan v. Olson, 200. 
 
 Doolittle V. Pacific Coast Safe & Vault 
 
 Works, 584. 
 Doran v. Smith, 527. 
 Doran v. Thomsen, 646. 
 Dorgeloh v. Murtha, 8. 
 Dorman v. Ogbourne, 406. 
 Dorothy v. Salzberg, 526. 
 Dprrance v. Dorrance, 175. 
 Dorsey v. Goodenow, ISO. 
 Dorsey v. Kyle, 568. 
 Dorsey v. Thompson, 567, 568. 
 Dotson v. Faulkenburg, 146, 148. 
 Doty V. Mitchell, 188. 
 Dougherty v^ Chicago, M. & St. P. R. 
 
 Co., 647. 
 Dougherty v. Kubat, 565. 
 Dougherty v. Woodward, 336. 
 Doughty V. Doughty, 289, 290. 
 Doughty V. Penobscot Log Driving Co., 
 
 631. 
 Douglas, Appeal of, 443. 
 Douglas, In re, 414. 
 Douglas V. Douglas, 150, 152, 153, 154. 
 Douglas V. Nicholson, 202. 
 Douglass V. Ferris, 448. 
 Douglass V. Low, 448. 
 Douglass V. Merchants' Ins. Co., 577. 
 Douischke v. Douischke, 12. 
 Dow V. Eyster, 180. 
 Dowdy V. Dowdy, 266. 
 Dowling V. Allen, 521. 613. 
 Dowling V. Feeley, 415. 
 Downing v. Peabody, 438. 
 Downing v. Stone, 516, 517. 
 Doyle, In re, 536. 
 Doyle V. Carney, 355. 
 Doyle V. Doyle, 265. 
 Drake v. Milton H,ospital Ass'n, 301. 
 Drake v. Wise, 499. 
 Drake's Lessee v. Ramsay, 495. 
 Drane v. Bayliss, 445. , * 
 
 Draper v. Draper, 345, 351. 
 Draughn v. State, 39. 
 Drawdy v. Hesters, 53. 
 Dred Scott v. Sandford, 568. 
 Dreutzer v. Lawrence, 150, 201, 204, 
 
 208. 
 Drew V. Railroad Co., 646. 
 DriscoU v. Carlin, 646. 
 Droge V. John R. Robins Co., 622, 625. 
 Drowne's Estate, In re, 403. 
 Drummond v. Drummond, 474. 
 Drummond v. Irish, 32, 34. 
 
CASES CITED 
 [The figures refer to pages] 
 
 679 
 
 Drury v. Foster, 157. 
 
 Drybutter v. Bartholomew, 141. 
 
 Duart V. Simmons, 637. 
 
 Dube V. Lewiston, 629. 
 
 Dublin & W. R. Co. v. Black, 490. 
 
 Dubois V. Jackson, 196. 
 
 Dubose V. Wheddon, 482. 
 
 Duckett V. Pool, 643. 
 
 Duckworth v. Johnson, 377. 
 
 Dudley v. Dudley, 72, 470. 
 
 Duenser v. Supreme Council of Royal 
 
 Arcanum, 32. 
 Duff V. Russell, 600. 
 Duffee V. Boston Elevated R. Co., 108, 
 
 110. 
 Duffies V. Duffies, 118. 
 Duffy V. McHale, 426. 
 Duffy V. Upton, 628. 
 Duffy V. Williams, 413. 
 Duffy V. Yordi, 392. 
 Dufield V. Cross, 356, 368. 
 Duke V. Duke, 244. 
 Duke of Beaufort v. Berty, 418. 
 DuU V. Bramhall, 605. 
 DuU's Estate, In re, 320. 
 Dumain v. Gwynne, 344, 353. 
 Dumaresly v. Fishly, 38, 39, 44, 48, 
 
 52, 67. 
 Dumond v. Magee, 136, 137. 
 Dunbarton v. Franklin, 41. 
 Duncan v. Duncan, 45, 48, 52, 53, 110. 
 Duncan v. Pope, 306. 
 Dundas v. Dutens, 226, 227. 
 Dunham v. Dunham, 288, 289. 
 Dunkell v. Simons, 589, 590. 
 Dunkin v. Selfert, 345, 350. 
 Dunks V. Grey, 335, 337. 
 Dunlap V. Allen, 576. 
 Dunlap V. Hill, 216, 217. 
 Dunlap V. Robinson, 466. 
 Dunlap V. Squires, 154. 
 Dunn V. Altman, 357. 
 Dunn V. Cass Ave. & F. G. R. Co., 372, 
 
 373. 
 Dunn V. Clingham, 444. 
 Dunn V. Dunn, 251. 
 Dunn V. Means, 318. 
 Dunn V. Nicholson, 607. 
 Dunn V. People, 549. 
 Dunn V. Sargent, 135, 196, 197. 
 Dunn V. Stbwers, 205. 
 Dunphy v. Dunphy, 18, 20. 
 Dunscomb v. Dunscomb, 431. 
 Dunton v. Brown, 473, 475, 493. 
 Dupont V. Jonet, 147. 
 Du Pont Co. V. Waddell, 589. 
 Du Pont De Nemours & Co. v. Hipp, 
 
 614. 
 
 Dv^)te V. Boulard's Bx'r, 70. 
 
 Durant v. Durant, 277, 278, 279, 281. 
 
 Durant v. Ritchie, 166. 
 
 Durant v. Titley, 240. 
 
 Durden v. Barnett, 36S, 374. 
 
 Duren v. Getchell, 208. 
 
 Durett V. Com, 433. 
 
 Durfee v. Abbott, 501. 
 
 Durling y. HammarJ 423. 
 
 Durocher v. Degre, 70. 
 
 Dutton V. Dutton, 240. 
 
 Duty V. Sprinkle, 161. 
 
 Duvall V. Bank, 135. 
 
 Duvall V. Graves, 473. 
 
 Duxstad V. Duxstad, 245. 
 
 Dwinelle v. Railroad Co., 650. ■ 
 
 Dwire v. Stearns, 381. 
 
 Dwyer v. Corrugated Paper Products 
 
 Co., 430. 
 Dwyer v. Dwyer, 264. 
 Dye v. Kerr, 390. 
 
 Dyer v. Brannock, 38, 42, 44, 295. 
 Dyer v. Helson, 333. 
 Dyer v. Pierce, 199. 
 Dyment v. Nelson, 152. 
 Dysart v. Dysart, 250, 253. 
 Dzikowska v. Superior Steel Co., 640. 
 Dzkowski V. Reynoldsville Carting Co., 
 
 612. 
 
 E 
 
 E. V. T., 29. 
 
 Eager v. Grimwood, 379. 
 
 Eagle Fire Ins. Co. v. Lent, 506. 
 
 Fames v. Eames, 273, 280. 
 
 Fames v. Sweetser, 175. 
 
 Eames v. Woodson, 50, 52. 
 
 Earl V. Dresser, 442. 
 
 Earl v. Godley, 55. 
 
 Earle v. Dawes, 295. 
 
 Earle v. Earle, 32, 69. 
 
 Earle v. Peale, 482. 
 
 Earle v. Reed, 476, 481, 482. 
 
 Early v. Wilson, 210. 
 
 Eason V. Railway Co., 624. 
 
 East Tennessee, V. & G. R. Co. v. Cox, 
 
 109. 
 East Tennessee, V. & G. R. Co. v. 
 
 Staub, 580. 
 Eastes v. Eastes, 250. 
 Eastland v. Burchell, 175, 176, 178. 
 Eaton V. Eaton,- 8, 35, 51, 305, 308, 540, 
 
 541. 
 Eaton V. Hill, 526. 
 Eaton v. Railway Co., 654. 
 Eaton's Adm'r v. Perry, 555. 
 Eaves v. Fears, 353. 
 Ebbetts, Case of, 490. 
 
680 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Eberts v. Eberts, 447. 
 
 Bckford V. ICnox, 310, 315. 
 
 Eckstein v. Frank, 528. 
 
 Edds, In re, 313. 
 
 Eddy V. Co-operative Dress Ass'n, 595. 
 
 Bdelson v. Edelson, 326. 
 
 Edelstein v. Brown, 43, 51. 
 
 Edgar v. Oastello, 377. 
 
 Edgerly v. Shaw, 499. 
 
 Edgerly v. Whalan, 229. 
 
 Edgerton v. Wolf, 518. 
 
 Edgewood Highland Land Co. v. Me- 
 
 Ferren, 472, 514. 
 Edington v. St. Louis & S. F. B. Co., 
 
 613. 
 Edminston v. Smith, 83, 173. 
 Edmonds v. Morrison, 424. 
 Edmoridson v. Machell, 643. 
 Edmonson's Estate, In re, 406, 454. 
 Edmunds v. Davis, 411. 
 Edmunds v. Mister, 498. 
 Edmundson v. Coca-Cola Co., 653. 
 Edwards, Ex parte, 404. 
 Edwards, In re, 352. 
 Edwards v. Countess of Warwick, 220. 
 Edwards v. Crume, 335. 
 
 Edwards v. Davis, 324, 392. 
 Edwards v. Freeman, 390. 
 Edwards v. Green, 265. 
 Edwards v. Jefferson Standard Life 
 Ins. Co., 212. 
 
 Edwards v. Levy, 591. 
 
 Edwards v. Stacey, 209, 
 
 Edwards v. White, 150. 
 Edwards v. Tearby, 318. 
 
 Edwards' Estate, In re, 64. 
 
 Effray v. Effray, 240. 
 
 Egbers V. Egbers, 279, 283. 
 
 Egbert v. Greenwalt: 120, 121, 296, 
 300. 
 
 Eggers V. Eggers, 552. 
 
 Bggerth v. Eggerth, 253, 279. 
 
 Egidl V. Egidl, 278. 
 
 Egoff V. Board of Children's Guardi- 
 ans of Madison County, 313, 463. 
 
 EicKelberger v. Gross, 457, 458. 
 
 Eichelberger, Appeal of, 425. 
 
 Eichengreen v. R. Co., 646. 
 
 Eichler, In re, 53. 
 
 BichofC's Estate, 34. 
 
 Eickhoff V. Sedalia, W. & S. W. Ry. 
 Co., 370. 
 
 EidenmuUer v. EidenmuUer, 256. 
 
 B. I. Du Pont De Nemours & Co. v. 
 Hipp, 614. 
 
 Eighmy v. Brock, 389. 
 
 Filer v. Crull, 175, 176. 
 
 Eisenberg v. Fraim, 614, 
 
 Eklund v. Hackett, 114. 
 
 Ela V. Brand, 326, 330, 331. 
 
 Ela V. Ela, 447. 
 
 Elchier, In re, 72. 
 
 Elder v. Elder, 230. 
 
 Elder v. Schumacher, 539. 
 
 Elder v. Warner, 380, 381. 
 
 Elderton v. Emmens, 596, 598. 
 
 Eldridge v. Preble, 196. 
 
 Bldridge v. Steamship Co., 620. 
 
 Eldridge v. Hoefer, 475, 477. 
 
 Elgin's Guardianship, In re, 452. 
 
 Eliot V. Eliot, 22, 23, 25. 
 
 Bliott V. Gower, 190, 192: 
 
 Elkins V. Bank of Henry, 161. 
 
 EUegard v. Ackland, 647. 
 
 EUett V. EUett, 83, 239. 
 
 EUing V. Blake-McFall Co., 111. 
 
 Ellingshouse v. Ajax Live-Stock Co., 
 
 622. 
 EUington v. Ellington, 371, 376, 378, 
 
 384. 
 Ellington v. Harris, 128, 129, 198. 
 Ellington v. Lumber Co., 628. 
 Elliot V. Collier, 391. 
 Elliot V. Wanamaker, 589. 
 Elliott V. Atkinson, 126, 160, 209. 
 Elliott V. Cale, 145. 
 Elliott V. Elliott, 77. 
 Elliott V. Gurr, 23, 58. 
 Elliott V. Hawley, 126, 163, 164. 
 Elliott V. Horn, 478. 
 Elliott's Estate, In re, 34, 35, 50, 245, 
 
 276. 
 Ellis V. Alford, 502. 
 Ellis V. Ellis, 223. 224, 482. 
 Ellis V. Hatfield, 308. 
 Ellis V. Proprietors, 440. 
 Ellis' Estate, In re, 245, 276, 289. 
 Ellison V. Martin, 289. 
 Ellsworth V. Shimer, 115. 
 Elm City Lumber Co. v. Haupt, 476. 
 El Paso & S. W. Ry. Co. v. Smith, 
 
 624. 
 Elrod v. Lancaster, 420. 
 Elrod v. Myers, 486. 
 Elsam V. Paucett, 122. 
 Elser V. Elser, 29. 
 Elwell V. Martin, 529. 
 Blwell V. Roper, 605. 
 Elzas V. Elzas, 263. 
 Emerson, Appellant, 440. 
 Emerson v. Emerson, 244. 
 Emerson v. Shaw, 32. 
 Emerson v. Spieer, 435, 436. 
 Emerson v. Taylor, 113. 
 Emerson-Brantingham Implement Co. 
 
 V. Brothers, 151. 
 Emerson-Taleott Co. v. Knapp, 126 
 
CASES CITED 
 [The figures refer to pages] 
 
 681 
 
 Emery, Appeal of, 566. 
 
 Emery v. Emery, 252. 
 
 Emery v. Gowen, 370, 371, 372, 380, 
 
 382. 
 Emery v. Kempton, 579. 
 Emmett v. Emmett, 564. 
 Bmmett v. Norton, 177, 178. 
 Emmons v. Murray, 499. 
 Emmons v. Stevane, 97. 
 Empire Steam Laundry Co. v. Lozier, 
 
 603. 
 Endsley v. Taylor, 198.» 
 England v. Garner, 470. 
 Engle V. Engle, 275. 
 Engle V. Simmons, 109. 
 Englet»ert v. Troxell, 512. 
 Epglehardt v. Yung, 325, 331. 
 English V. Brown, 232. 
 English V. English, 146, 284, 260. 
 Ennis, Appeal of, 481. 
 Ensign v. Ensign, 246. 
 Entsminger v. Entsminger, 11, 17. 
 Enyart's Estate, In re, 224. 
 Epperson v. Nugent, 487. 
 Equitable Trust Co. of New York v. 
 
 IVj-OSS, 477, 483. 
 Eriekson v. St. Paul City Ry., 640. 
 Erie Citv Pass. R. Co. v. .Schuster, 
 
 521, 523. 
 Erie Lighter, 'The, 609. 
 Erie R. Co. v. Kane, 635. 
 Erie R. Co. v. Winfiem, 638. 
 Erlick V. Hels, 336. 
 Ernst V. Hollis, 84. 
 Ernst V. Railroad Co., 615. 
 Errat v. Barlow, 410. 
 Erving v. Ingi'am, 604. 
 Erwin v. Puryear, 196. 
 Eschrich, In re, 432. 
 Eshbach v. Eshbach, 251, 259. 
 Eshom V. Eshom, 107. 
 Essery v. Cowland, 219. 
 Estes V. Merrill, 33, 49, 63, 64. 
 Estill V. Fort, 98. 
 Estill V. Rogers, 37, 41. 
 Estridge v. Estridge, 455. 
 Etherington v. Parrott, 176. 
 Etna, The, 362. 
 Eureka Co. v. Edwards, 511. 
 Eva, Appeal of, 61. 
 Evanhoff v. State Industrial Ace. 
 
 Commission, 636. 
 Evans v. Bennett, 582, 583. 
 Evans v. Crawford County Farmers' 
 
 Mut Fire Ins. Co., 171. 
 Evans v. Crawford County Farmers' 
 
 Mut. Life Ins. Co., 169. 
 Evans v. Davidson, 646, 647. 
 
 Evans v; Evans, 35, 122, 242, 251, 253* 
 254, 256, 259, 327. 
 
 Evans v. Horan, 539. 
 
 Evans v. Morgan, 528. 
 
 Evans v. Pearce, 324, 330, 331. 
 
 Evans v. Railway Co., 634. 
 
 Evans V. Secrest, 135. 
 
 Evans V. Walton, 370, 385, 644. 
 
 Evans' Estate, In re, 426. 
 
 Evansich v. Gulf, C. & S. F. R. Co., 
 521 522. 
 
 Evansville & C. R. Co. v. Wolf, 523. 
 
 Evansville & R. R. Co. v. Henderson, 
 628, 632. 
 
 Evarts v. Nason, 446. 
 
 Bvarts v. Taylor, 511. 
 
 Evatt V. Mler, 32. 
 
 Evatt V. Miller, 40, 295. 
 
 Evelyn v. Templar, 237. 
 
 Everett v. Sherfey, 360, 364, 385. 
 
 Everson v. Carpenter, 504. 
 
 Ewald V. Hufton, 155. 
 
 Ewan V. Lippincott, 651. 
 
 Ewell V. Ewell, 296, 297. 
 
 Ewen V. Chicago & N. W. R. Co., 523. 
 
 Ewing V. Helm, 129. 
 
 Ewing V. Janson, 578, 585. 
 
 Ewing V. Smith, 188. 
 
 Ewing V. Wheatley, 10. 
 
 Exchange Bank of Ft. Valley v. Mc- 
 Millan, 498. 
 
 Eyre v. Countess of Shaftsbury, 399, 
 408, 451. 
 
 Fadden v. Fadden, 159. 
 
 Fadden v. McKinney, 103. 
 
 Fagan v. Interurban St. Ry. Co., 369. 
 
 Fairbank Co. v. Industrial Commis- 
 sion, 640. 
 
 Fairfax's Devisee v. Hunter's Lessee, 
 564. 
 
 Fairhurst v. Liverpool Adelphi Loan 
 Ass'n, 99, 156. 
 
 Fairmount & A. St. Pass. Ry. Co. v. 
 Stutler, 355. 
 
 Falender v. Blackwell, 654. 
 
 Falla V. Pine Mountain Granite Co., 
 611, 617, 618, 631. 
 
 Fallon V. Mertz, 621. 
 
 Faloon V. Mclntyre, 389. 
 
 Fanton v. Bryum, 335. 
 
 Farington v. Parker, 188. 
 
 Farley, In re, 474. 
 
 Farley v. Farley, i6, 17. 
 
 Farley v. Parker, 539. 
 
 Farley's Estate, In re, 53. 
 
 Farmer v. Farmer, 279. 
 
 Farmer v. First Trust COi, 591. ' 
 
682 
 
 CASKS CITED 
 [The figures refer to pages] 
 
 Fanner v. Golde Clothes Shop, 582. 
 Parmer v. Towers, 50. 
 Farmers' Bank v. Boyd, 207. 
 Farmers' Bank of Hardinsburg v. 
 
 Richardson, 167. 
 Farmer's Bx'r v. Farmer, 448. 
 Farmers' State Bank of Ada v. Keen, 
 
 159, 163, 193, 199, 204, 209. 
 Famam v. Brooks, 538. 
 Famham v. Farnham, 253, 278, 279. 
 Farnsworth v. Farnsworth, 271. 
 Farr v. Farr, 11. 
 Farrar v. Bessey, 157. 
 Farrell v. Dooley, 605. 
 Farrell v. Farrell, 361. 
 Farrell v. Patterson, 196. 
 Farrer v. Clarke, 405. 
 Farrington v. Secor, 458. 
 Farrow v. Farrow, 131. 
 Farrow v. Wilson, 594. 
 Farwell v. Boston & W. R. Corp., 621, 
 
 631. 
 Farwell v. Farwell, 266, 275. 
 Farwell v. Steen, 431. 
 Faulkner v. Davis. 437, 438. 
 Fawcett v. Cash, 583. 
 Fay V. Burditt, 541. 
 Fay V. Hurd, 455. 
 Fay V. Railway Co., 627. 
 Fay V. Taylor, 459. 
 Fearnow v. Jones, 28. 
 Fears v. Riley, 524. 
 l*'eather v. Feather's Estate, 206. 
 Feehley v. Feehley, 38, 39. 
 Feely v. Cordage Co., 618. 
 Feiertag v. Feiertag, 577. 
 Feiner v. Boynton, 83, 173, 179. 
 Feld V. Borodofski, 546. 
 Felkner v. Scarlet, 382. 
 Fellows V. Fellows, 260. 
 Felt V. Felt, 290. 
 Fender v. Powers, 439. 
 FenefE v. Boston & M. B. R., 647. 
 FenefC v. New York Cent. & H. R. Co., 
 
 76, 112. 
 Fenner V. Lewis, 170. 
 Fensterwald v. Burk, 67, 68. 
 Fenton v. Clark, 594, 604. 
 Fenton v. Reed, 32, 44, 51. 
 Fenton v. White, 482. 
 Fereira v. Sayres, 594. 
 Ferguson v. Bell's Adm'r, 502. 
 Ferguson v. Bobo, 528. 
 Ferguson v. Brooks, 101, 103, 104. 
 Ferguson v. Collins, 98. 
 Ferguson v. Herr, 311. 
 Ferguson v. Jones, 312. 
 Ferguson v. Neilson, 96, 99, 100. 
 Ferguson v. Railway Co., 475, 
 
 Ferguson v. Smethers, 120, 122. 
 
 Ferguson v. Williams, 184. 
 
 Ferlat v. Gojon, 57, 60. 
 
 Fernsler v. Moyer, 376, 410. 
 
 Fero V. Fero, 57. 
 
 Ferren v. Moore, 175, 177. 
 
 Ferrers v. Ferrers, 277, 279. 
 
 Ferris v. Shandy, 608. 
 
 Fetrow v. Wiseman, 474, 475, 476, 
 
 498. 
 Fettiplaee v. Gorges, 188. 
 Feyh's Estate. In re, 245, 246. ' 
 Fidelity Ti-ust Co. v. Butler, 413, 415, 
 
 447, 449. 
 Fidelity Trust & Safety Vault Co. v. 
 
 Glover, 433. 
 Fidelity & Deposit Co. v. Freufl, 434. 
 Fidelity & Deposit Co. v. Industrial 
 
 Commission, 642. 
 Fidelity & Deposit Co. v. M. Rich & 
 
 Bros., 412. 
 Fiedler v. Fiedler, 106. 
 Field V. Campbell, 161, 207. 
 Field V. Moore, 437. 
 Field V. Peeples, 439. 
 Field V. Schieffelin, 424, 440, 441. 
 Field V. Torrey, 452, 456. 
 Fielder v. Harbinson, 447. 
 Fielding, Case of, 15. 
 Fielding v. Fielding, 265. 
 Fields V. Mitchell, 518. 
 Fife V. Oshkosh, 109. 
 Filbert v. New York, N. H. & H. R. 
 
 Co., 608. 
 Fillieul V. Armstrong. 591. 
 Finch V. Finch. 226, 324. 325, 327. 
 Findley v. Findley, 459. 
 Fink V. Furnace Co., 521. 
 Fii;k V. McCue, 200. 
 Fintv V. Missouri Furnace Co., 522. 
 Finkelstein v. Finkelstein, 81. 
 Finley v. Brown, 304, 320. 
 Finley v. Finley, 252. 
 Finley v. Marion County, 462. 
 Finley y. Richmond & D. R. Co., 372, 
 
 374. 
 Finn v. Adams, 331. 
 Finn v. Rose, 86. 
 Finn's Estate, In re, 152. 
 Finney v. State. 405. 
 Finnigan v. New York Contracting 
 
 Co., 625. 
 Firemen's Ins. Co. of Albany v. Bay, 
 
 187. 
 First Nat. Bank v. Bertoli, 161. 
 First Nat. Bank v. Casey, 491, 512. 
 First Nat. Bank v. Greene, 330. 
 First Nat Bank v. Meyers, 155. 
 First Nat. Bank v. Rutter, 206. 
 
CASES CITED 
 [The figures refer to pages] 
 
 683 
 
 First Nat. Bank v. Sharpe, 55. 
 First Sav. Bank & Tnist Co. v. Flour- 
 
 noy, 206. 
 Fischer v. Brady, 180. 
 Fischer v. Sklenar, 566. 
 Fish, Appeal of, 446. 
 Fish V. Marzluff, 577. 
 Fish V. Miller, 447. 
 Fishbum v. Burlington & N. W. R. 
 
 Co., 521. 
 Fisher, V. Kissinger, 506. 
 Fisher v. Massillon Iron & Steel Co., 
 
 597. 
 Fisher v. Minegeaux, 622. 
 Fisher v. Monroe, 590. 
 Fisher v. Mowbray, 473. 
 Fisher v. Provln, 146, 148, 149. 
 Fishli V. Fishli, 259, 262. 
 Fisk V. Fislt, 10. 
 Fisk V. Sarber, 420. 
 Fiske V. Bailey, 103. 
 Fiske V. Lawton, 319. 
 Fitch V. Peckham, 390. 
 Fitler v. Fitler, 324. 
 Fitts V. Hall, 524, 527, 528. 
 Fitzgerald v. Fitzgerald, 264. 
 Fitzgerald v. McCarty, 86. 
 Fitzgerald v. Quann, 101. 
 Fitzgerald v. Reed, 542. 
 Fitzgerald v. St. Paul, M. & M. R. Co., 
 
 52.3. 
 Fitzgibbons' Estate, In re, 50, 51. 
 Fitz-Hugh V. Dennington, 461. 
 Fitzhngh' v. Wilcox, 543. 
 Fitzmaurice v. Buck, 81, 179. 
 Fitzpatrick v. Fitzpatrick, 23, 245. 
 Fitzpatrick v. OwenS, 106. 
 Fitzpatrick Square Bale Ginning Co. v. 
 
 McLaney, 592, 596. 
 Flagg V. Bean, 141. 
 Flaherty v. Columbus, 149. 
 Flanagan v. People, 549, 551. 
 Flandermeyer v. Cooper, 113. 
 Flavell V. Flavell, 284. 
 Fleek v. Zillhaver, 149. 
 Fleet V. Perrins, 130, 132, 134. 
 Fleming v. Fleming, 252, 255. 
 Fleming v. People, 62. 
 Flenner v. Flenner, 226, 227. 
 Flesh V. Lindsay, 96, 97. 98, 100. 
 Fletcher v. A. W. Koch Co., 504. 
 Fletcher v. Hickman, 353. 
 Fletcher v. People, 341, 343. 
 Fletcher v. Walker, 421. 
 Flexner v. Dickerson, 473, 489. 
 Fleytas v. Pigneguy, 252. ^ 
 
 Flight V. Bolland, 497. 
 Flike V. Railroad Co., 607, 627. 
 
 Flinu, In re, 430. 
 Flint V. Pierce, 296. 
 Flintjer v. Kansas City, 111. 
 Flittner v. Equitable Life Assur. Soc, 
 
 509. 
 Floding V. Denholm, 154. 
 Florida Citrus Exchange v. Grisham, 
 
 201. 
 Flory V. Ostrom, 351. 
 Flower v. Railroad Co., 623, 648. 
 Floyd V. Calvert, 53. 
 Fluker v. Banking Co., 643. 
 Flurscheim v. Rosenthal, 82. 
 Flynn v. Messenger, 82. : 
 
 Flynn v. New York, S. & W. R. Co.,, 
 
 638. 
 Flynn v: Prince, Colliers & Marston 
 
 Co., 610. 
 Fogarty v. Southern Pac. Co., 627. 
 Foley V. Home Rubber Co., 641. 
 Foley V. Mutual Life Ins. Co., 397. 
 Folger V. Heidel, 414. 
 Folsom V. Folsom, 152. 
 Fonda v. Van Home, 397, 398. 
 FoneS' v. Phillips, 614. 
 Fontana v. Fontana, 12. 
 Fooley v. Fooley, 57. 
 Foot V. Card, 109, 118. 
 Foote V. Foote, 263. 
 Foote V. State, 298. 
 Foppiano v. Baker, 377. 
 Forbes v. Burgess, 50. 
 Forbes v. Countess ,of Strathmore, 52. 
 Forbes v. Reynard, 428. 
 Ford V. Anderson, 613. 
 Ford V. Danks, 591. 
 Ford V. Ford, 264, 265. 
 Ford V. McVay, 356. 
 Ford V. Monroe, 377. 
 Ford V. Phillips, 504. 
 Ford V. Railway Co., 607. 
 Foreman v. Eagle Rice Mill Co., 609. 
 Fomshill v. Murray, 2, 3, 50, 57, 58, 
 
 60, 67. 
 Forrester, In re, 403. 
 Forsee's Adm'x v. Forsee, 475, 511. 
 Forster v. Forster, 259, 273. 
 Porster v. Fuller, 412. 
 Forsyth v. Barnes, 157. 
 Forsyth v. Hooper, 653, 654. 
 Forsyth v. McKinney, 590. 
 Forsythe v. Central Mfg. Co., 366. 
 Fort V. Allen, 234. 
 Fort V. Gooding, 363. 
 Fortinberry v. Holmes, 340. 
 Fortune v. Killebrew, 430. 
 Ft. Wayne, C. & L. R. Co. v. Haber- 
 
 korn, 602. 
 
684 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Ft. Wayne Trust Co. v. Sihler, 161. 
 
 Posburgh V. Rogers, 313. 
 
 Fescue V. Lyon, 432, 434. 
 
 Foss V. Crisp, 564. 
 
 Foss V. Foss, 12. 
 
 Foss V. Hildreth, 555, 
 
 Foster v. Bank, 649. 
 
 Foster v. Denny, 453, 
 
 Poster V. Hawley, 52. 
 
 Foster v. Meaas, 18, 21. 
 
 Fountain v. Boodle, 601, 
 
 Fowler v. Alabama Iron & Steel Co,, 
 466. 
 
 Fowler v. Chichester, 96, 98, 101. 
 
 Fowler v. Fowler, 13, 17, 253, 255. 
 
 Fowler v. Meadow Brook Water Co., 
 555. 
 
 Fowler v. Shearer, 165, 166. 
 
 Fowlkes V. Baker, 332. 
 
 Fox V. Burke, 296. 
 
 Fox V. Color Works, 613. 
 
 Fox V. Davis, 240. 
 
 Fox V. Hawkes, 186. 
 
 Pox V. Schumann, 359, 360, 
 
 Fox V. Southack, 564. 
 
 Pox V. Tyrone, 199. 
 
 Foy V. Pacific Power & LigM Co., 200. 
 
 Foy V. Salzano, 510. 
 
 Frame v. Thormann, 74. 
 
 Prance v. Shockey, 443, 445, 
 
 Francis v. Francis, 45. 
 
 Francis v. Outlaw, 114, 116. 
 
 Franco-Texan Land Co, v. Chaptive, 
 566. 
 
 Prank v. Carter, 176. 
 
 Prank v. Prank, 276. 
 
 Frank v. Herold, 571, 573. 
 
 Frank v. Manhattan Maternity & Dis- 
 pensary, 583, 584. 
 
 Frank Spangler Co. v. Haupt, 526. 
 
 Pranke v. Franke, 12. 
 
 Franklin v. Butcher, 355, 356, 376, 
 
 Franklin v, Fairbanks, 314, 317, 
 
 Franklin v. Ford, 306. 
 
 Franklin v. Franklin, 88, 242. 
 
 Franklin v. Lee, 37, 38, 39. 
 
 Franklin's Adm'r, Appeal of, 98. 
 
 Prantz v. Frantz, 269. 
 
 Prary v. American Rubber Co., 582. 
 
 Prary v. Booth, 188. 
 
 Fraser v. Freeman, 649. 
 
 Fratlni v. Caslini, 114, 115, 
 
 Frazer v. Andrews, 227. 
 
 Prazier v. Massey, 476. 
 
 Frecking v. Holland, 164, 207, 
 
 Predd v. Eves, 178. 
 
 Frederick v. Morse, 50. 
 
 Preeburger v, Gazzam, 152. 
 
 Freeman, Appeal of, 196. 
 
 Freeman v. Beefer, 242. 
 
 Freeman v. Belfer, 149. 
 
 Freeman v. Boland, 527. 
 
 Freeman v. Bridger, 486, 487. 
 
 I'reeman v. Freeman, 251, 255, 390, 
 
 Freeman v. Holmes, 180, 
 
 Freeman v. People, 550. 
 
 Freeman v. Pope, 236. 
 
 Freeman v. Robinson, 323. 
 
 Freeman v. Shaw, 354. 
 
 Freestone v. Biitcher, 169, 172, 175, 
 179. 
 
 Freiberg v. De Lamar, 441. 
 
 Freisner v. Symonds, 305. 
 
 French v. Burlingame, 172. 
 
 French v. Cresswell, 646, 647. 
 
 French v. Currier, 433. 
 
 French v. French, 60, 252. 
 
 French v. McAndrew, 475, 515, 516. 
 
 French v. Mehan, 148. 
 
 French v. Rollins, 141. 
 
 French v. Sheplor, 423. 
 
 French vi Slack, 157. 
 
 Preret v. Taylor, 160. 
 
 Prerker v. Nicholson 651. 
 
 Prescobaldi v. Kinaston, 469, 
 
 Freetby v. Freethy, 105. 
 
 Freund v. Washburn, 442. 
 
 Prick V. St. Louis, K. O. & N. Ry. Co., 
 372. 
 
 Pried v. Overland Motor Co., 501, 
 504. 
 
 Friedman Mfg. Co. v. Industrial Com- 
 mission, 637. 
 
 Priedrich v. Priedrich, 244. 
 
 Friend v. Friend, 262. 
 
 Friend v. Thompson, 117. 
 
 Frierson v. Williams, 195. 
 
 Priesner v. Symonds, 305, 306. 
 
 Frith V. Frith, 12. 
 
 Fritz V. Fernandez, 233. 
 
 Fritz V. Fritz, 259. 
 
 Fritz Scbulz, Jr., Co. v. Raimes & Co., 
 566, 567, 568. 
 
 Fronk v. Frouk, 116. 
 
 Frost V. Frost, 147, 148, 201. 
 
 Frost V. Knapp, 209. 
 
 Frost V. Parker, 85, 87. 
 
 Pruitt V. Anderson, 541, 
 
 Fry V. Drestler, 122. 
 
 Pry V. Pry, 137. 
 
 Fry V. Leslie, 382. 
 
 Fryer v. Fryer, 43, 45, 48, 
 
 Fuchs v. Koerner, 597, 
 
 Fulgham v. State, 94, 
 
 Fuller v. Blair, 354. 
 
 Fuller V. Brown, 594. 
 
 Puller V, Downing, 583. 
 
CASES CITED 
 [The figures refer to pages] 
 
 685 
 
 Fuller V. Fuller, 330. 
 
 Fuller V. Hager, 439. 
 
 Fuller V. Jewett, 626. 
 
 Fuller V. Little, 596, 597. 
 
 Fuller V. Naugatuck R. Co., 112. 
 
 Fuller V. Railway Co., 111. 
 
 Fuller's Estate, In re, 53. 
 
 Fulton V. Fulton, 263, 264. 
 
 Fumiclello, dase of, 641. 
 
 Funk's Guardian v. Funk, 330. 
 
 Furenes v. Mlckelson, 565. 
 
 Furgeson v. Jones, 311. 
 
 Furlong v. Bartl'ett, 476. 
 
 Furman v. Van Slse, 824, 325, 376, 
 
 884. 
 Furr V. Burns, 489. 
 Furrh v. McKnight, 365. 
 Furth V. Furth, 40. 
 Furth V. March, 200. 
 
 G 
 
 G. V. G., 30. 
 
 Gabisso, Succession of, 35, 69. 
 
 Gaffney v. Hayden, 517. 
 
 Gage V. Dauehy, 209. 
 
 Gage V. Reed, 184. 
 
 Gage V. Menczer, 492. 
 
 Gaillard v. Gaillard, 261, 262. 
 
 Gaines, Succession of, 405, 519. 
 
 Gaines v. Gaines, 436. 
 
 Gaines v. Gaines' Adm'r, 223, 224. 
 
 Gaines' Adm'x v. Poor, 240. 
 
 Gale V. Gale, 219. 
 
 Gale V. Parrott, 354, 359, 863. 
 
 Gall V. GaU, 32, 50. 
 
 Gall's Will, In re, 53. 
 
 Gallagher v. Newman, 625. 
 
 Gallant v. Great Northern Paper Co., 
 622, 629. 
 
 Galleher, In re, 352, 895, 403. 
 
 Galligan v. Woonsocket St. R. Co., 
 354. 
 
 Galveston, H. & S. A. R. Co. v. Par- 
 ish, 609. 
 
 Gamble v. Rucker, 63, 64, 65. 
 
 Gandell v. Pontigny, 586, 598. 
 
 Gannon v. Manning, 495, 511. 
 
 Gangwere's Estate, In re, 543. 
 
 Gapen v. Gapen, 354. 
 
 Gappmayer v. Wilkinson, 466. 
 
 Garcia v. Garcia, 68. 
 
 Gard v. Gard, 13. 
 
 Gardenhire v. Hinds, 349. 
 
 Gardiner v. Manchester, 38. 
 
 Gardiner v. Solomon, 337. 
 
 Gardner v. Gardner, 35, 72, 277, 280, 
 559. 
 
 Gardner v. Kellogg, 367. ■ 
 
 Gardner v. Slade, 601. 
 
 Garforth v. Bradley, 133, 138, 139. 
 
 Gargan v. ScuUey, 33. 
 
 Garland v. Harrison, 308. 
 
 Gamer v. Gordon, 409. 
 
 Garner v. Lankford, 186. 
 
 Gamer v. State, 530. 
 
 Garnet v. Com., 451. 
 
 Garretson v. Becker, 381. 
 
 Garrett v. Garrett, 268. 
 
 Garrett v. State, 94. 
 
 Garretzen v. Duenckel, 649. 
 
 Garrigue v. Keller, 161, 207. 
 
 Garrison v. Garrison, 260, 262. 
 
 Garver v. Miller, 240. 
 
 Garver v. Thoman, 126, 160. 
 
 Garvin's Adm'r v. Williams, 449. 
 
 Gary v. Cannon, 435. 
 
 Gary v. State, 462. 
 
 Gaska v. American Car & Foundry 
 
 C(i., 616. ' 
 Gaskins v. Allen, 494, 502. 
 Gaspard v. Coco, 413. 
 Gassaway, In re, 463. 
 Gaston v. Thompson, 330. 
 Gatehouse v. Gatehouse, 263. 
 Gately' Outfitting Co. v. Vinson, 179, 
 
 333. 
 Gaters v. Madeley, 133. 
 Gates V. Brower, 170. 
 Gates V. Meredith, 547. 
 Gathings v. Williams, 57, 58. 
 Gathman v. Chicago, 633. 
 Gault LumTDCr Co. v. Pyles, 438. 
 Gavin v. Burton, 479. 
 Gay V. Ballou, 81. 
 Gay V. Hocking Coal Co., 609, 638. 
 Gayle v. Hayes' Adm'r, 484. 
 Gaylord v. Stebbins, 438. 
 Gaynor, Case of, 689. 
 Gebhart v. Gebhart, 199. 
 Geer v. Hovy, 528. 
 Gellatly v. Gellatly, 270. 
 Genereux v. Sibley, 483, 518, 518. 
 Gentry v. Bearss, 440. 
 George v. Edney, 85. 
 George v. Goldsby, 133. 
 George v. Spencer, 281. 
 George Adams & Burke Co. -v. Cook, 
 
 360. 
 George Jonas Glass Co. v. Glass Bottle 
 
 Blowers' Ass'n. of U. S. & Canada, 
 
 644. 
 Georgia Northem R. Co. v. Sharp, 110. 
 Georgia Pac. R. Co. v. Propst, 520. 
 Georgia R. & Banking Co. v. Tice, 111. 
 Gerdes v. Niemeyer, 160. 
 Gerke v. Colonial Trust Co., 534. 
 
686 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Gerz V. Weber, 577. 
 
 Getz V. Getz, 261. 
 
 Gibbons v. Bente, 587. 
 
 Gibbons v. Gibbons, 327. 
 
 Gibbs V. Brown, 347. 
 
 Gibbs V. Gibbs, 253. 
 
 Gibbs V. Poplar Bluff Light & Power 
 
 Co., 483. 
 Gibney v. Allen, 466. 
 Gibson, Appeal of, 407. 
 Gibson v. Fidelity & Casualty Co., 645. 
 Gibson v. Gibson, 42. 
 Gibson v. Pollock, 546. 
 Gibson v. Railroad Co., 607, 618. 
 Gibson v. Soper, 512, 539, 544, 545. 
 Giers v. Hudson, 389. 
 Gignac v. Studebaker Corporation, 
 
 642. 
 Gilbert v. Brown, 305. 
 Gilbert v. Gilbert, 260, 326. 
 Gilbert v. Guptill, 444. 
 Gilbert v. Hayword, 243. 
 Gilbert v. McEachen, 415. 
 Gilbert v. Mazerat, 468, 469. 
 Gilbert v. Schwenck, 418. 
 Gllelirist v. Bale, 113, 115. 
 Gilchrist v: State, 530. 
 Gilder, Ex parte, 464. 
 Gildersleeve v. Gildersleeve, 245, 287, 
 
 288 
 Giles 'v. Giles, 350. 
 Gill V. McKinney, 149. 
 Gillespie v. Grand Trunk R. Co., 610. 
 Gillespie v. Nabors, 466. 
 Gillet V. Shaw, 533, 546. 
 Gillett V. Gillett, 13, 20. 
 Gilley v. GUley, 325, 327. 
 Gilliat V. Gilliat, 399. 
 Gillinwaters v. Gillinwaters, 264, 266. 
 Gillis V. Goodwin, 516. 
 Oilman v. Andrus, 171, 180. 
 Gilman v. Oilman, 106. 
 Oilman v. G. W. Dart Hardware Co., 
 
 354. 
 Gilman v. Mathews, 85. 
 Oilman v. Railroad Corporation, 611, 
 
 632. 
 Gilmore v. Kitson, 345. ) 
 Oilson V. Spear, 527. 
 Ginn v. Bdmundson, 149. 
 Ginn v. Ginn, 355. 
 
 Ginsberg v. People's Bank of Savan- 
 nah, 211. 
 Giovagnioli v. Ft. Orange Const. Co., 
 
 362. 
 Gipps V. Gipps, 273, 275. 
 Gird's Estate, In re, 302. 
 Girls' Industrial Home v. Fritchey, 
 
 325. 1 
 
 Gise y. Com., 45. 
 
 Gishwiler v. Dodez, 347. 
 
 Gladding v. FoUett, 331. 
 
 Olaser v. National Alumni, 592. 
 
 Glaser v. Priest, 406. 
 
 Glass V. Bennett, 116, 117. 
 
 Glass V. Glass, 32, 295, 473. 
 
 Glass V. Wynn, 255. 
 
 Glassell v. Glassell, 431. 
 
 Glaze V. Pullman State Bank, 152. 
 
 Glean v. Glean, 12. 
 
 Gleason v. Gleason, 89. 
 
 Glenn v. State, 462. ' 
 
 Glenn v. Western Union Tel. Co., 112. 
 
 Glennie v. Olennie, 275. 
 
 Glidden v. Nelson, 306. ' 
 
 Qlidden v. Strupler, 157. 
 
 Glos V. Sankey, 313, 316. 
 
 Glover v. Alcott, 164. 
 
 Glover v. Bates, 216. 
 
 Glover v. Glover, 426. 
 
 Glover v. Ott's Adm'r, 483, 485. 
 
 Glover v. Proprietors of Drury Lane, 
 130. 
 
 Gobber v. Empting, 333. 
 
 Goddard v. Railway Co., 650. 
 
 Godfrey v. Rowland, 38, 42. 
 
 Godfrey v. State, 530. 
 
 Goelitz Co. V. Industrial Board of Illi- 
 nois, 82. 
 
 Goetting v. Normoyle, 328, 329. 
 
 GofE V. Railroad Co., 619. 
 
 OofE's Guardian v. Goff, 431, 432. 
 
 Goldbeck v. Goldbeck, 264. 
 
 Goldlng V. Golding, 268. 
 
 Goldsmith Bros. Smelting & Refining 
 Co. V. Moore, 161. 
 
 Goleman v. Turner, 430. 
 
 GoU V. Fehr, 212. 
 
 Gomez v. Tracey, 607, 608. 
 
 Gondouin v. Gondouin, 12. 
 
 Oonsior v. Railway Co., 628. 
 
 Oooch v. Weldon Bank & Trust Co., 
 199. > 
 
 Goode V. Goode, 286. 
 
 Goode V. Harrison, 489. 
 
 Goodenough, In re, 350, 353. 
 
 Goodfellow V. Railroad Co., 623. 
 
 Good Lands Co. v. Cole, 164. 
 
 Goodman v. Alexander, 486. 
 
 Goodman v. Poeock, 596, 598. 
 
 Goodman v. Winter, 437. 
 
 Goodnow v. Empire Lumber Co., 494. 
 
 Goodrich v. Cushman, 44. 
 
 Goodrich v. Goodrich, 254. 
 
 Goodrick v. Russell, 564. 
 
 Ooo^right V. Moss, 300. 
 
 Ooodright v. Straphan, 141, 
 
 Goodrum t. Goodrum, 186. 
 
CASES CITED 
 [The figures refer to pages] 
 
 687 
 
 Goodrum v. Merchants' & Planters' 
 
 Bank, 211. 
 Goods of Duchess of Orleans, In re, 
 
 467. 
 Goodsell V. Myers, 476, 504. 
 Goodson V. Powell, 175. 
 Goodwin v. Thompson, 39. 
 Goodyear v. Rumbaugh, 197. 
 Gordan v. Munn, 215. 
 Gordon v. Gorden, 49, 53, 61. 
 Gordon v. Barkelew, 391. 
 Gordon v. Chicago, R. I. & P. R. Co., 
 
 622. 
 Gordon v. Gordon, 53, 253. 
 Gordon v. Haywood, 166. 
 Gordon v. Miller, 475. 
 Gordon v. Munn, 223. 
 Gordon v. Potter, 323, 481. 
 Gore T. Gibson, 555, 556. 
 Gore V. Knight, 187. ' 
 Gorham v. Masslllon Iron & Steel Co., 
 
 597. 
 Gorman v. Gorman, 51. 
 Gorman v. State, 79, 340, 341. 
 Gornall, In re, 405. 
 Gorrell v. Bottelle, 637. 
 Gortia v. Rueda, 5. 
 Goset V. Goset, 32, 63. 
 Goss V. Stone, 405. 
 Gossard Co. v. Crosby, 599, 600, 601. 
 Gott V. Gulp, 413. 
 Gould V. Carlton, 125. 
 Gould V. Webster, 141. 
 Goulding v. Davidson, 158. 
 Gourlay v. Gourlay, 267, 268. 
 Government St. R. Co. v. Hanlon, 523. 
 Governor v. Rector, 22. 
 Govier v. Hancock, 177. 
 Graber, Ex parte, 566. 
 Grace v. Globe Stove & Range Co., 
 
 614, 615. 
 Graecen v. Graecen, 251. 
 Graeff v. Graeff, 262, 265. 
 Graff V. Blumberg, 597. 
 Graham, In re, 32. 
 Graham v. Bennet, 44, 295. 
 Graham v. Dickinson, 142. 
 Graham v. Graham, 194, 327. 
 Graham & Corry v. "Work, 84. 
 Grandln v. Southern Pac. Co., 621. 
 Grand Island Banking Co. v. Wright, 
 
 207, 211, 212. 
 fGrand Lodge Knights of Pythias v. 
 
 Barnard, 32. 
 Grand Rapids & I. R. Co. v. Showers, 
 
 385. 
 Grand Trunk B. Co. v. Ives, 615. 
 Grand Trunk R. Co. v. Knapp, 636. 
 Grandy v. Hadcock, 82. 
 
 Grangiac v. Arden, 387. 
 
 Grannemann v. Kloepi-er, 581. 
 
 Grant v. Grant, 231, 242, 251. 
 
 Grant v. Simpson, 295. 
 
 Grant v. Singer Mfg. Co., 649. 
 
 Grant v. Stimpson, 294, 295. 
 
 Grant v. Sutton, 126. 
 
 Grantland v. State, 83. 
 
 Grattan v. Grattan, 390. 
 
 Grau V. McVicker, 586. 
 
 Grauman Marx & Cline Co. v. Krlen- 
 itz, 467, 469, 492. 
 
 Graves v. Columbia Underwriters, 
 152. 
 
 Graves v. Graves, 259. 
 
 Graves v. Spedden, 391. 
 
 Graves v. Union Oil Co., 621, 634. 
 
 Graves v. Von Below, 218. 
 
 Gray, Appeal of, 405. 
 
 Gray v. Crimm, 512. 
 
 Gray v. Durland, 325, 356, 376, 384. 
 
 Gray v. Fox. 433, 434. 
 
 Gray v. Gray, 263, 264. 
 
 Gray v. Lynch, 433. 
 
 Gray v. Otis, 169. 
 
 Grayson v. Lofland, 518. 
 
 Great Lakes Dredge & Dock Co. v. 
 Totzke, 640. 
 
 Great Northern R. Co. v. Johnson, 46, 
 48, 67. 
 
 Great Western Power Co. v. Pillsbury, 
 642. 
 
 Grebill, Appeal of, 133. 
 
 Green v. American Car, etc., Co., 574. ' 
 
 Green v. Appleton Woolen Mills, 462, 
 
 575. 
 Green v. Cannady, 149. 
 Green v. Forney, 199, 200. 
 Green v. Green, 19, 21, 48, 283, 295, 
 
 489, 506, 512. 
 Green v. Greenbank, 527. 
 Green v. Gilbert, 594. 
 Green v. Hulse, 540. 
 Green v. Johnson, 443, 456. 
 Green v. Kelley, 303. 
 Green v. Kelly, 295. 
 Green v. Railroad Co., 112. 
 Green v. State, 3, 50. 
 Green v. Wilding, 473. 
 Green v. Winter, 435. 
 Greenburg v. Early, 583. 
 Greene r. Caldwell, 637. 
 Greene v. Greene, 88. 
 Greene v. Railroad Co., 620. 
 Greenhow v. Coutts, 222. 
 Greenman v. Gillerman's Estate, 315. 
 Greensboro v. Underbill, 64, 
 Greenstine v. Borehard, 583. 
 Greenwood v. Greenwood, 371. . 
 
688 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Greenwood's Estate, In re, 147. 
 
 Gregg V. Gregg, 117, 119, 451. 
 
 Gregory, In re, 303. 
 
 Gregory v. Lockyer, 182. 
 
 Gregory v. Molesworth, 470. 
 
 Gregory v. Paul, 158. 
 
 Gregory v. Pierce, 158. 
 
 Gregory's Adm'r v. Ohio River R. Co., 
 648. 
 
 Gregorson's Estate, In re, 6, 20, 58. 
 « Gresham v. Bang, 149. 
 , Gribben v. Maxwell, 542. 
 
 Grier v. McLendon, 407. 
 
 Grievance Committee v. Ennis, 430, 
 474. 
 
 Griffin v, Collins, 431, 436, 447. 
 
 Griffin v. Griffin, 244, 251. 
 
 Griffin v. Reynolds, 98. 
 
 Griffin v. Sarsfield, 404, 406. 
 
 Griffin v. Stanhope, 226. 
 
 Griffith v. Griffith, 251, 271, 277. 
 
 Griffith v. Schwenderman, 476. 
 
 Griffiths V. Griffiths, 276. 
 
 Griggs V. Swift, 594. 
 
 Grigsby v. Reib, 5, 32, 48, 47, 48. 
 
 Grimes' Estate, In re, 399. 
 
 Grimmett v. Witherington, 442. 
 
 Grimm's Estate, In re, 45. 
 
 Grimsby v. Hudnell, 466. 
 
 Grinnell v. Wells, 373, 380. 
 
 Grisson v. Beidleman, 515. 
 » Grist V. Forehand, 442. 
 § Griswold v. Butler, 543. 
 
 Gj:iswold v. Griswold, 72, 242. 
 
 Griswold v. Penniman, 133. 
 
 Griswold v. Waddington, 568. 
 
 Groller Soc. of London v. Forshay, 504. 
 
 Groom v. Thomson, 391. 
 
 Grosman v. Union Trust Co., 161, 210. 
 
 Gross V. Cadwell, 576. 
 
 Gross V. Gross, 21, 119. 
 
 Gross V. Whiteley, 207, 210, 211, 212. 
 
 Grove, Appeal of, 260. 
 
 Grove, In re, 304. 
 
 Grove v. Todd, 167. 
 
 Grover & Baker, Sewing Maeh. Co. v. 
 Bulkley, 577. 
 
 Gruba v. Chapman, 473. 
 
 Grute V. Locroft, 139. 
 
 Guardians of the Poor v. Nathans, 43, 
 44, 45, 48, 50. 
 
 Guardians of Headington Union v. Ips- 
 wich Union, 306. 
 
 Guardianship of Chambers, In re, 453. 
 
 Guasteio v. Michigan Cent. R. Co., 641. 
 
 Guertin's Child, In re, 335. 
 
 Guest V. Edison Illuminating Co., 614. 
 
 Guevin v. Manchester St. Ry., 111. 
 
 Guggeiiheim v. Wahl, 287. 
 
 Guild V. Cranston, 468, 469. 
 
 Guild V. Guild, 577. 
 
 Guild V. Hall, 538. 
 
 Guillebert, Succession of, 444. 
 
 Gulf Cooperage Co. v. Abemathy, 362. 
 
 Gulf, C. & S. F. R. Co. V. Lemons, 503, 
 
 Gumbiner v. Gumbiner, 10. 
 
 Gund V. Parke, 154. 
 
 Gunn V. Hardy, 194. 
 
 Gussart v. Greenleaf Stone Co., 624. 
 
 Gustin V. Bryden, 1§2. 
 
 Gustine v. Westenberger, 103. 
 
 Gustow, In re, 346. 
 
 Guthrie v. Guthrie, 280. 
 
 Guthrie v. Morris, 482. 
 
 Guthrie V. Murphy, 486. 
 
 Guthrie County v. Conrad, 324. 
 
 Gutmann v. Anderson, 639. 
 
 Gutridge v. Railway Co., 608. 
 
 Guyer v. Sterling Laundry Co., 608, 
 
 610. 
 Gwaltney v. Cannon, 411. 
 Gwin V. Vanzant, 454. 
 
 H 
 
 Haberman's Estate, In re, 223. 
 Hackettstown Bank v. Mitchell, 88. 
 Haddock v. Bank, 433. 
 Haddock v. Haddock, 246, 287, 290, 
 
 291. 
 Haddon v. Crawford, 301, 309. 
 Hadfield, Case of, 550. 
 Hadley v. Hey wood, 113, 115, 120, 121, 
 Hadnot V. Hicks, 155. 
 Haeissig v. Decker, 382. 
 Hagcman v. Vanderdoes, 103, 
 Hagenson v. Hagenson, 18. 
 Hagert v. Hagert, 87. 
 Hagerty v. Lock Co., 518. 
 Haggard v. Holmes, 85, 86. 
 Haggett V. Hurley, 160. 
 Haggin v. Haggin, 44. 
 Hague V. Hague, 260, 265. 
 Haguewood v. Britain, 234. 
 Hahn v. Hahn, 72. 
 Hahn v. Hammerstein, 308. 
 Hahnemann Hospital v. Industrial 
 
 Board, 642. 
 Haile v. Hale, 241. 
 Halne's Adm'r v. Tarrant, 483. 
 Haines v. Haines, 284. 
 Hair v. Avery, ISO. 
 Hair v. Hair, 88, 218. 
 Hakes Inv. Co. v. Lyons, 473, 488. 
 Haldeman v. Weeks, 503. ' 
 Hale V. Gerrish, 498. 
 Hale V. Sheehan, 578. 
 Halett V. Patrick, 534. 
 
CASES CITED 
 [The figures refer to pages] 
 
 689 
 
 Hall V. Cone, 447. 
 
 Hall V. Corcoran, 526. 
 
 Hall V. Dotson, 212. 
 
 Hall V. Gabbert, 304. ' 
 
 Hall V. Hall, 207, 259, 260, 262, 280, 
 
 282, 283, 287, 301, 327, 359, 360, 
 
 365, 388, 390, 391. 
 Hall V. Hollader, 373. 
 Hall V. Industrial Commission, 52, 72. 
 Hall V. Johns, 155, 157. 
 Hall V. Jones, 515. 
 Hall V. Stork, 403. 
 Hall V. Turner's Estate, 447. 
 Hall V. linger, 533. 
 Hall V. U. S., 31. - 
 Hall V. Warren, 538. 
 Hall V. Weir, 180. 
 Hall V. Young, 138, 142. 
 Halley v. Troester, 544. 
 Halliday v. Miller, ,354. 
 Halplne v. Halpine, 245. 
 Halstead v. Halstead, 240. 
 Halstead v. Meeker's Ex'rs, 433. 
 Ham V. Ham, 405. 
 Ham V. Toovey, 177. 
 Hamaker v. Hamaker, 19, 20. 
 Hamann v. Milwaukee Bridge Co., 611, 
 
 629. 
 Hamerick v. People, 404. 
 Hamilton v. Douglas, 233. 
 Hamilton v. Hamilton's Estate, 127, 
 
 200. 
 Hamilton v. Love, 590. 
 Hamilton v. Moore, 210. 
 Hamilton v. Russell, 221. 
 Hamilton v. Salisbury, 181. 
 Hamilton's Adm'r v. Riney,,330. 
 Hamlin v. Jones, 129. 
 Hamlin y. Eace, 590. 
 Hamlin v. Stevenson, 461, 
 Haminton v. Salisbury, 181. 
 Hamm v. Prudential Ins. Co., 477. 
 Hammersley v. De Biel, 227. 
 Hammond v. Corbett, 355, 356, 384. 
 Hammond v. Hammond, 226, 227, 271, 
 
 433.. 
 Hampstead v. Plaistow, 16. 
 Hampton v. State, 529, 530. 
 Hanaban v. Pittston Coal Min. Co., 
 
 462. 
 Hanberry v. Hanberry, 246. 
 Hanbury v. Hanbury, 270. 
 Hancock v. Haile, 540. 
 Hancock v. Merrick, 176. 
 Hancock v. Peaty, 20. ' 
 Hands v. Slaney, 484. 
 Handy v. Foley, 96, 98. 
 Handy v. Handy, 283. 
 
 TIFF.P.& D.Kel.(3d Ed.)— 44 
 
 Haney v. Caldwell, 584. 
 
 Haney v. Railway Co., 630. 
 
 Haney v. St. Regis Mining & Smelt- 
 ing Co., 608. 
 
 Hankins v. Railroad Co., 628. 
 
 Hanklnson v. Hankinson, 260. 
 
 Hanks V. Leslie, 151. 
 
 Hanley v. Drumm, 216. 
 
 Hanlin v. Burk Bros. Meat & Provi- 
 sion Co., 470. 
 
 Hanna, Succession of, 430. 
 
 Hanna v. Granger, 628. 
 
 Hannah, In re, 534. 
 
 Hannig v. Hannig, 260. 
 
 Hannon v. Hounihan, 227, 228. 
 
 Hanrick v. Gurley, 565. 
 
 Hansen v. Erickson, 604. 
 
 Hanson v. Railway Co., 650. 
 
 Hantz V. Sealy, 57. 
 
 Haraldson v. Knutson, 215. 
 
 Harbeck v. Harbeck, 53. 
 
 Harcourt, Ex parte, 536. 
 
 Harden v. Parsons, 4.32. 
 
 Hardenbergh v. Hardenbergh, 89, 147, 
 257. 
 
 Hardenbrook v. Harrison, 171, 179. 
 
 Hardie v. Grant, 177. 
 
 Hardin v. Hardin, 266. 
 
 Harding v. Alden, 67, 246. 
 
 Harding v. Cobb, 203, 208. 
 
 Harding v. Harding, 255, 260. 
 
 Harding v. Hyman, 87. 
 
 Harding v. Schapiro, 461. 
 
 Harding v. Weld, 406. 
 
 Hardy v. Chicago, R. I. & P. R. Co., 
 613, 614. 
 
 Hardy v. Holly, 188. 
 
 Hardy v. State, 22. 
 
 Hardy v. Waters, 475. 
 
 Harford v. Morris, 13, 14. 
 
 Harford County Oom'rs v. Hamilton, 
 376. 
 
 Hargrave v. Hargrave, 296, 297, 299. 
 
 Hargroves v. Thompson, 39, 42, 44. 
 
 Harkrader v. Reed, 296, 297, 
 
 Harlan v. Harlan, 51. 
 
 Harland, In re, 330. 
 
 Harle v. Harle, 311, 315. 
 
 Harley v. State, 564. 
 
 Harmer v. Cornelius, 589. 
 
 Harmer v. Killing, 504. 
 
 Harmon v. Harmon, 540. 
 
 Harmon v. Old Colony R. Co., 200. 
 
 Harmon v. Smith, 466. 
 
 Harner v. Dlpple, 474, 475. 
 
 Harnett v. Boston Store of Chicago, 
 524. 
 
 Harnett v. Harnett, 280. 
 
690 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Harney v. Owen, 476. 
 
 Harper v. Harper, 256. » 
 
 Harner v. lola Portland Cement Co., 
 
 624. 
 Harper v. Luffldn, 383. 
 Harper v. Pinkston, 108. 
 Harper v. Eailroad Co., 611. 
 Harper v. Utsey, 35T, 466. 
 Harratt v. Harratt, 251. 
 Harrigan v. CahiU, 176. 
 Harriman v. Pittsburg, O. & St. L. 
 
 R. Co., 522. 
 Harriman v. Eailroad Co., 646. 
 Harrington v. Iron Works Co., 594. 
 Harrington v. Jagmetty, 103. 
 Harrington's Estate, In re, 34. 
 Harris, In re, 326, 33a 
 Harris v. Butler, 380. 
 Harris v. Cannon. 494. 
 Harris v. Carolina Distributing Co., 
 
 146. 
 Harris v. Carstarphen, 447. 
 Harris v. Crowley, 483. 
 Harris v. Harris, 63, 64, 253, 273, 276, 
 
 288, 290, 456. 
 Harris v. Harrison, 426, 444. 
 Harris v. Hicks, 28. 
 Harris v. Hobart Iron Co., 637. 
 Harris v. Hopkins, 439. 
 Harris v. Jones, 336. 
 Harris v. Lee, 180, 181. 
 Harris v. Louisville, N. O. & T. R. 
 
 Co., 646. 
 Harris v. McElroy, 186. 
 Harris v. Morris, 179. 
 Harris v. Preston, 434. 
 Harris v. Ross, 496. 
 Harris v. Smith, 576, 577. 
 Harris v. Spencer, 203. 
 Harris v. Wall, 499, 500. 
 Harris v. Webster, 200. 
 Harris' Guardianship, In re 
 Harris-Irby Cotton Co. v. D. . 521. 
 Harrison v. Adcock, 506. 
 Harrison v. Bishop, 559. 
 Harrison v. Collins, 652, 653. 
 Harrison v. Fane, 485. 
 Harrison v. Harker, 301, 302. 
 Harrison v. Harrison, 12, 447. 
 Harrison v. Odum, 301. 
 Harrison v. Rowan, 553. 
 Harrison v. State, 26, 28, 58, 61, 65, 66, 
 
 530. 
 Harrison v. Trader, 218. 
 Harrold v. Clinton Gas & Electric Co., 
 
 529. 
 Harron v. Harron, 48. 
 Harshaw v. Merryman, 175. 
 
 Harsh berger's Adm'r v. Alger, 191, 240. 
 
 Hart V. Deamer, 543. 
 
 Hart V. Gray, 454. 
 
 Hart V. Hart, 239. 
 
 Hart V. Naumburg, 608. 
 
 Hart V. Prater, 483. 
 
 Hart V. Stribling, 458. 
 
 Harteau v. Harteau, 244. 
 
 Hartfleld v. Roper, .520, 521, 522. 
 
 Hartl V. Hartl, 278. 
 
 Hartley v. Hartley's Estate, 541. 
 
 Hartman v. Dowdel, 134. 
 
 Hartman v. Kendall, 502. 
 
 Hartman v. McCrary, 383. 
 
 Hartman v. Rogers, 586, '598. 
 
 Harttmann v. Tegart, 175, 176. 
 
 Hartwell v. Jackson, 295. 
 
 Hartz V. Hartford Faience Co., 640. 
 
 Harvard College v. Amory, 482, 433, 
 
 435. 
 Harvey y. Briggs,'410, 491, 510, 512. 
 Harvey v. Carroll, 64. 
 Harvey v. Dunlop, 524. 
 Harvey v. Harvey, 284, 415. 
 Hasissig v. Decker, 382. 
 Haskell v. Haskell, 349, 330. 
 Haskell v.' Jewell, 409. 
 Haskell v. Sutton, 436. 
 Haskell & Barker Car Co. v. Pre- 
 
 zezdziankowski, 609, 621, 622. 
 liaskins v. Eoyster, 643, 644. 
 Hass V. Brady, 174. 
 Ilassard v. Rowe, 435. 
 Hastings v. DoUarhide, 492, 494, 515. 
 Hastings v. Douglass, 68. 
 Hasty v. Sears, 623. 
 Hatch V. Fuller, 382. 
 Hatch v. Hatch's Estate, 499, 500, 505. 
 iHatch V. Pike Mfg. Co., 624. 
 Hatch V. Straight, 391. 
 Hatfield v. Sneden, 564. 
 Hathaway v. Bennett, 583. 
 Hathaway v. Toledo, W. & W. R. Co., 
 
 523. 
 Hattersley v. Bissett, 391. 
 Hatton v. Bodan Lumber Co., 475, 477 
 
 505, 510. 
 Hauenstein v. Lynham, 566. 
 Haugh Keteham & Co. Iron Works v. 
 
 Duncan, 360. 
 Hauser v. Marnon Chicago Co., 516. 
 Hauser v. Murray, 134. 
 Havsgord's Estate, In re, 311. 
 Hawk V. Harman, 96. 
 Hawking, Appeal of, 448. 
 Hawkins' Adm'r v. Craig, 128. 
 Hawkins v. Bleakly, 636, 638. 
 Hawkins v. Bone, 556.. 
 
CASES CITED 
 [The flgurea refer to pages] 
 
 691 
 
 Hawkins v. Hawkins, 47, 256. 
 
 Hawkins v. Ragsdale, 289. 
 
 Hawkins v. Railroad Co., 125. 
 
 Hawkins v. Stiles, 152. 
 
 Hawley, In re, 398. 
 
 Hawthorne v. Beckwith, 183. 
 
 Hawthorne v. Jenkins, 388. 
 
 Hayden v. Rogers, 86. 
 
 Hayden v. Stone, 409. 
 
 Hayes v. Hayes, 351, 461. 
 
 Hayes v. Parker, 528. 
 
 Hayes v. Railroad Corporation, 628. 
 
 Hayes v. Watts, 59. 
 
 Haynes v. Bennett, 489, 506. 
 
 Haynes v. Montgomery, 419. 
 
 Haynes v. Nowlin, 118, 119, 120, 122. 
 
 Hays V. Bowdoin, 519. 
 
 Hays V. Cox, 173. 
 
 Hays V. Hlnkle, 466. 
 
 Hays V. Hogan, 336. 
 
 Hayward v. Barker, 157. 
 
 Hayward v. Ellis, 419. 
 
 Hayward v. Hayward, 132, 133. 
 
 Haywood v. Nichols, 51. 
 
 Hayworth v. Williams, 307. 
 
 Hazelton v. Hazelton, 350. 
 
 Head v. Briscoe, 96. 
 
 Head v. Head, 296, 297, 299. 
 
 Head v. Leak, 317. 
 
 Headington Union, Guardians of v. Ip- 
 swich Union, Guardians of, 306. 
 
 Headley v. Hoopengarner, 466. 
 
 Headman v. Rose, 562. 
 
 Healey v. P. Ballantine & Sons, 200. 
 
 Healey Ice Machine Co. v. Green, 146. 
 
 Healy v. Buffalo, R. & P. R. Co., 608, 
 631. 
 
 Heaps V. Dunham, 384. 
 
 Heard v. Daniel, 418. 
 
 Heard v. Stamford, 139, 183, 184. 
 
 Hearn, In re, 478. 
 
 Heame v. Chadbourne, 579. 
 
 Heath v. Heath, 246. 
 
 Heath v. Maddock, 453, 468. 
 
 Heath v. Stevens, 511, 514. 
 
 Heath v. West, 507. 
 
 Heath's Estate, In re, 443. 
 
 Heather Children, In re, 345, 409. 
 
 Heaver v. Lanahan, 587. 
 
 Hebblethwaite v. Hepworth, 44, 45, 
 49, 52. 
 
 Heburn v. Warner, 190, 192. 
 
 Heekert v. Hile's Adm'r, 295. 
 
 Heckle V. Lurvey, 96, 98. 
 
 Hector v. Hector, 327. 
 
 Hedden v. Hidden, 111, 273. 
 
 Hedges V. Tagg, 371. 
 
 Hedstrom v. Union Forest Co., 653. 
 
 Heermauce v. James, 113, 114, 259. 
 
 Heffington v. Jackson, 476, 483. 
 
 Heffner v. Heffner, 32, 33. 
 
 Heffron v. Brown, 389, 576, 577. 
 
 Heilman v. Com., 531. 
 
 Hein V. Holdridge, 382. 
 
 Heinemann, Appeal of, 404. 
 
 Heirs v. Walkup, 414. 
 
 Heisler v. Heisler, 117. 
 
 Helland v. Colton State Bank, 474, 
 
 475, 494. 
 Helm V. Phelps, 521. ' 
 Helm V. Wilson, 604. 
 Helms V. PranCiscus, 60. 
 Hemmenway v. Towner, 296, 298. 
 Hemming v. Price, 57. 
 Hendee v. Cleaveland, 420. 
 Heijderson v. Clark, 474. 
 Henderson v. Fox, 482. 
 Henderson v. Henderson, 252, 253. 
 Henderson v. Lightner, 429, 435. 
 Henderson v. Ressor, 19, 56, 57, 58, 
 
 60, 67. 
 Henderson v. Stringer, 177. 
 Henderson v. Wendler, 97, 98. 
 Henderson Grocery Co. v. Johnson, 
 
 140, 193, 200. 
 Hendrickson v. Hendrickson, 160. 
 Hendrickson v. Woods, 605. 
 Hendrix V. Richards, 440. 
 Henley v. Robb, 444. 
 Henn v. Children's Agency, 463. 
 Hennies v. Vogel, 109. 
 Henrichs' Estate, In re, 567. 
 Henrietta Coal Co. v. Martin, 629. 
 Henry v. Butler, 219. 
 Henry v. Henry, 226. 
 Henry v. Root, 474, 475, 499, 502. 
 Henry's Estate, In re, 296. 
 Hensley v. Blankinship, 167. 
 Henson v. Culp, 502. 
 Henson v. Walts, 345. 
 Hepburn v. Dunlop, 564. 
 Herd v. Herd, 39, 42, 48. 
 Hermance, In re, 405. 
 Hernandez, Succession of, 35, 74. 
 HBrnandez v. Thomas, 345, 352, 398. 
 Herrick's Etetate, In re,- 319. 
 Herriford v. Herriford, 275. 
 Herring v. Goodson, 406. 
 Herring v. Jester, 370, 380, 383. 
 Herring v. Wickham, 219, 221, 222. 
 Herrman v. Herrman, 23. 
 Hershberger v. Lynch, 651. 
 Hertz v. Hertz, 253. 
 Hervey v. Moseley, 38, 39, 67. 
 Hescht V. Calvert, 446. 
 Hesketh v. Gowing, 306. 
 
692 . 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Hess V. Adamant Mfg. Co., 633. 
 
 Hess V. Brown, 19S. 
 
 Hesselman v. Haas, 305, 461. 
 
 Hessick v. Hessick, 225. 
 
 Hetrick v. Hetrick, 183. 
 
 Hetzel V. Lincoln, 149, 196. 
 
 Hetzel V. Wasson Piston Ring Co., 368, 
 
 639. 
 Heugh V. Jones, 83. 
 Hewitt, Appeal of, 559. 
 Hewitt, Case of, 349. 
 Hewitt V. Long, 347, 350. 
 Hewitt Lumber Co. v. Cisco, 618. 
 Hewlett V. George, 341. 
 Hexamer v. Webb, 654. 
 Hey V. Prime, 109, 110, 200. 
 Heyman v. Heyman, 75, 80, 107, 183, 
 
 262. 
 Heywood v. Tillson, 644. 
 H. G. Goelitz Co. v. Industrial Board 
 
 of 111., 82. 
 Hibbard v. Heckart, 199. 
 Hibbard y. Wood, 592. 
 Hibbard, Spencer, Bartlett & Co. v. 
 
 Heckart, 200. 
 Hibbert v. Hibbert, 246. 
 Hibernian Sav. Inst. v. Luhn, 199. 
 Hickey v. TaafEe, 617. 
 Hickle V. Hickle, 87. 
 Hickman v. Hall's Adm'rs, 483. 
 Hickman t. Hickman, 270. 
 ^ Hickman & Wells v. McDonald, 487. 
 Hicks V. Cochran, 45, 50. 
 Hicks V. Gregory, 306. 
 Hicks T. Smith, 307. 
 Hickson v. Hickson, 273. 
 Hiett V. Hiett, 239. 
 Higgins, In re, 478. 
 ■* Higgins V. Breen, 32, 57. 
 
 Higgins V. Johnson's Heirs, 153. 
 
 Higgins V. Railroad Co., 650. 
 
 Higgins' Estate, In re, 154. 
 
 Higham v. Vanosdol, 113. 
 
 Hightower v. MauU, 430. 
 
 Hilbish V. Hattle, 290. 
 
 Hildreth v. Camp, 97. 
 
 Hiles V. Hiles, 475. 
 
 Hill, In re, 194, 209, 231. 
 
 Hill V. Anderson, 516, 517. 
 
 Hill V. Balkcom, 587. 
 
 Hill V. Chambers, 196, 197. 
 
 Hill V. Childress, 334. 
 
 Hill V. Day, 535. 
 
 Hill V. Good, 28. 
 
 Hill V. Hill, 240, 258, 263. 
 
 Hill V. Hunt, 134. 
 
 Hill V. Lovewell, 186. 
 
 Hill V. State, 45, 530. 
 
 Hill V. Weil, 496. 
 
 Hillebrant v. Brewer, 388. 
 
 Hillers v. Taylor, 311. 
 
 Hilliard v. Baldwin, 52. 
 
 Hilliard v. Hambridge, 135. 
 
 Hilliard v. Richardson, 652, 653, 654. 
 
 Hills V. Blair, 640, 641. 
 
 Hills V. State, 68. 
 
 Hillsborough v. Deering, 323, 324. 
 
 Hillyer v. Bennett, 511. 
 
 Hilpire v. Claude, 313. 
 
 Hilton V. Roylance, 5, 8, 40, 41, 49. 
 
 Hilts V. R. Co., 611. 
 
 Hinchcliffe v. Koontz, 597. 
 
 Hinckley v. Harriman, 457. 
 
 Hindman v. State, 457. 
 
 Hindrey v. Williams, 594, 
 
 Hinds V. Jones, 96. 
 
 Hinds V. Overacker, 656. 
 
 Hinds' Estate, In re, 133, 134. 
 
 Hinely v. Margarita, 504. 
 
 Hiner v. Hiner, 83. 
 
 Hines v. Jones, 96. 
 
 Hines v. MuUins, 330. 
 
 Hinkle v. State, 341, 342, 343. 
 
 Hinman, In re, 43, 50, 52. 
 
 Hinski v. Stein, 102. 
 
 Hitchcock V. Rechold, 164. 
 
 Hitner, Appeal of, 240. 
 
 Hix V. Gosling, 188. 
 
 H. Leonard & Sons v. Stowe, 172. 
 
 Hoag V. Hoag, 146. 
 
 Hoard t. Peck, 111. 
 
 Hobbs V. Hinton Foundry, Machine & 
 Plumbing Co., 494, 504. 
 
 Hobbs V. Hobbs, 35. 
 
 Hochster v. De La Tour, 585. 
 
 Hockaday v. Lynn, 310, 317. 
 
 Hodge V. Newton, 577. 
 
 Hodge V. Wetzler, 118. 
 
 Hodges V. Price, 205. 
 
 Hodges V. Windham, 122. 
 
 Hodgkinson v. Fletcher, 178. 
 
 Hodgkinson v. Hodgkinson, 120. 
 
 Hodgman v. Railroad Corp., 109. 
 
 Hodgson V. Macy, 391. 
 
 Hoenig v. Industrial Commission, 639. 
 
 Hoff V. HofC, 281, 286. 
 
 Hoffman, In re, 202. 
 
 Hoffman v. Hoffman, 288. 
 
 Hoffman v. Railroad Co., 650. 
 
 Hoffman v, Watkins, 442. 
 
 Hogan V. Utter, 475, 495. 
 
 Hogg V. Board of Com'rs of San Mi- 
 guel County, 534. 
 
 Hoggatt V. Morancy, 397. 
 
 Hoghton V. Hoghton, 389. 
 
 Hogle V. H. H. Franklin Mfg. Co., 648. 
 I Hohenadel v. Steele, 345. 
 
CASES CITED 
 [The figures refer to pages] 
 
 693 
 
 Holbrook v. Waters, 133. 
 
 Holcombe v. Holcombe's Ex'rs, 445. 
 
 Holden v. Fitchburg R. Co., 631. 
 
 Holden v. Hardy, 574. 
 
 Holden v. Holden, 252. 
 
 Holden v. Pike, 514. 
 
 Holder v. State, 39. 
 
 Hole V. Robloins, 318. 
 
 Holeman v. Blue, 426. 
 
 Holland v. Bond, 210. 
 
 Holland v. Hartley, 326, 333, 358, 359. 
 
 Holland v. Riggs, 18, 21. 
 
 HoUenback v. Hardin, 652. 
 
 Hollenbeck v. Winnebago Co., 653. 
 
 HoUenbeck Co. v. Hollenbach, 685, 639. 
 
 Holley V. Chamberlain, 405. 
 
 HoUiday v. Hively, 186, 188, 195. 
 
 Holliday v. McMillan, 196. 
 
 HolUnger v. York Rys. Co., 476. 
 
 HoUingsworth v. McDonald, 165, 167. 
 
 Hollingswortb v. Swedenborg, 323, 356, 
 361. 
 
 HoUis V. Francois, 157. 
 
 Hollopeter, Ex parte, 24, 519. 
 
 HoUoway v. HoUoway, 269. 
 
 Holloway v. McCormick, 303. 
 
 HoUweg V. Bell Telephone Co., 630. 
 
 Holly V. Gaslight Co., 522, 615. 
 
 Holly St. Land Co. v. Beyer, 151, 152. 
 
 Holm V. Holm, 268, 350. 
 
 Holman v. Holman, 200. 
 
 Holmes, Case of, 349. 
 
 Holmes v. Adams, 303, 309. 
 
 Holmes v. Blogg, 514: 
 
 Holmes v. Derrig, 313, 395. 
 
 Holmes v. Dring, 432. 
 
 Holmes v. Holmes, 38, 43, 50, 118, 120, 
 149, 261, 283. 
 
 Holmes v. Rice, 474. 
 
 Holschbach v. Holsehbach, 280. 
 
 Holt V. Baldwin, 323. 
 
 Holt V. Empey, 154. 
 
 Holt V. Holt, 325, 328. 
 
 Holt V. Boss, 655. 
 
 Holt V. Ward Clarencieux, 23, 476. 
 
 Holt Lumber Co. v. Industrial Com- 
 mission, 636. 
 
 Holtz V. Dick, 23, 39, 67, 96, 115, 117, 
 118. 
 
 HoltZman v. Castleman, 324. 
 
 Holyoke v. Clark, 441. 
 
 Holyoke v. Haskins, 416. 
 
 Home Fire Ins. Co. v. Barber, 578. 
 
 Homer v. Schonfeld, 167. 
 
 Homeopathic Mut. Life Ins. Co. v. 
 Marshall, 190, 192. 
 
 Homer v. Thwing, 526. 
 
 Honey v. Clark, 31. 
 
 Honnett v. Honnett, 14. 
 
 Hood V. Hood, 200, 245, 287. 
 
 Hood V. State, 287. 
 
 Hood & Johnson v. Pelham, Sitz & 
 Co., 364. 
 
 Hooker v. Hyde, 578. 
 
 Hooper v. Haskell, 108, 112. 
 
 Hooper v. Hooper, 35, 36. 
 
 Hooper t. Howell, 133. 
 
 Hooper v. McCafCery, 8. 
 
 Hoopes V. Mathis, 154. 
 
 Hoover v. Carver, 199. 
 
 Hoover v. Heim, 368. 
 
 Hope, In re, 461. 
 
 Hopedale Mach. Co. v. Entwistle, 602. 
 
 Hope-Johnstone, In re, 216. 
 
 Hopkins, Ex parte, 343, 895. 
 
 Hopkins V. Hopkins, 256. 
 
 Hopkins V. Lee, 386., 
 
 Hopkins v. Railroad Co., 111. 
 
 Hoppe V. Chicago, M. & St. P. B. Co., 
 523. 
 
 Hopper V. McWhorter, 129. 
 
 Hopps V. People, 550. 
 
 Hopson V. Boyd, 543. 
 
 Hopt V. Utah, 559. 
 
 Horgan v. Pacific Mills, 356, 357, 376. 
 
 Home V. Home, 281, 284. 
 
 Horner v. Lawrence, 656. 
 
 Homer v. Liddiard, 27. 
 
 Horner v. Marshall's Adm'x, 547. 
 
 Hornish v. People, 549. 
 
 Hornketh v. Barr, 371. 
 
 Horton, Appeal of, 414. 
 
 Horton v. Hill,, 164. . 
 
 Horton v. Seaboard Air Line Ry., 611. 
 
 Horton v. Troll, 815, 316. 
 
 Hosford v. Rowe, 221, 225. 
 
 Hoskins v. Miller, 128, 188. 
 
 Hoskins V. White, 518, 519. 
 
 Hosmer v. Tiffany, 218, 221. 
 
 Hosmer v. Wilson, 586, 587. 
 
 Hostetter v. Green, 115. 
 
 Hoth V. Peters, 629. 
 
 Hotel Bond Co., Appeal of, 687, 638. 
 
 Houck V. Chicago & A. R. Co., 646. 
 
 Houck V. La Junta Hardware Co., 87. 
 
 Hough V. Railway Co., 607, 620. 
 
 Houghteling v. Walker, 87. 
 
 Houghton V. Dickinson, 301, 307. 
 
 Houghton V. Rice, 118. 
 
 Houle V. Houle, 13, 301. 
 
 Houlihan v. Fogarty, 438. 
 
 Houliston V. Smyth, 176. 
 
 Houlton V. Manteuffel, 515. 
 
 House V. Alexander, 485, 487, 501, 504. 
 
 House V. Brent, 488. 
 
 House V. Fry, 524. 
 
 House V. House, 245. 
 
 Houseman v. Philadelphia Transporta- 
 tion & Lighterage Co., 651. 
 
 Houston V. Brush, 626. 
 
694 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Houston Belt & Terminal Ry. Co. 
 
 V. Scheppelman, 197. 
 Houston Ice & Brewing Co. v. Nicol- 
 
 ini, 577. 
 Houston Oil Co. of Texas v. Griggs, 
 
 49. • 
 Houston's Adm'x v. Seaboard Air 
 
 Line By., 611, 617. 
 Houston & G. N. R. Co. v. Miller, 368. 
 Houston & T. C. R. Co. v. Turner, 632. 
 Hoverson v. Koker, 337. 
 Hovey v. Hobson, 539, 542, 544, 545. • 
 Howard v. Beldenville Lumber Co., 
 
 622. 
 ■-Howard v. Bryant, 133. 
 Howard v. Daly, 586, 596, 597, 598. 
 Howard v. Howard, 31, 280, 281. 
 Howard v. Kelley, 42. 
 Howard v. Kelly, 53y 62, 63, 64. 
 Howard v. Menifee, 131. 
 Howard v. MofCatt, 135, 136. 
 Howard v. Randolph, 326. 
 Howard v. Simpklns, 485. 
 Howard v. Strode, 289. 
 Howbert v. Heyle, 439. 
 Howe V. Hyde, 392. 
 Howe V. North, 83, 577. 
 Howell V. Blesh, 172, 333. 
 Howell V. HerifC, 245. 
 Howell V. Howell, 262. 
 Howes V. Bigelow, 183. 
 Howland v. Railway Co., 608, 628. 
 Hewlett V. Haswell, 527. 
 Howman v. Corle, 135. 
 Hoxle V. Price, 234. 
 Hoxsie V. Potter, 353. 
 Hoyt V. Casey, 486. 
 Hoyt V. Fuller, 600, 602. 
 Hoyt V. Sprague, 420, 434, 442. 
 Hoyt V. Swar, 165. 
 Hoyt V. Wilkinson, 493, 515. 
 Hubbard, In re, 407. 
 Hubbard v. Belden, 594. 
 Hubbard v. Bugbee, 157, 158. 
 Hubbard v. Cummings, 502, 503, 507. 
 Hubbard v. Hubbard, 282, 283. 
 Hubbard v. Ten Brook, 655. 
 Hubbell V. Wheeler, 378. 
 Hubble V. Fogartie, 96. 
 Huber v. Huber's Adm'r, 231, 232. 
 Huber v. Roth, 326. 
 Huber v. Whale Creek Iron Works, 
 
 616. 
 Hubermann v. Evans, 439. 
 Hubert v. Traeder. 148. 
 Hubinger's Estate, In re, 215, 223. 
 Huehtlng v. Engle, 524. 
 Huek V. Flentye, 576. 
 
 Hudkins v. Haskins, 370, 371, 382. 
 
 Hudson, Guardian of, v. Hudson, 518. 
 
 Hudson V. Hills, 305. 
 
 Hudson V. Jennings, 90. 
 
 Hudson V. King, 85. 
 
 Hudson V. Newton, 413, 415. 
 
 Hudson V. Sholem, 82, 84, 85. 
 
 Huff V. Ames, 521, 523. 
 
 Huff V. Ford, 651. 
 
 Huff V. Huff, 42, 51, 64. 
 
 Huff V. Price, 141. 
 
 Huff V. Watkins, 643. 
 
 Huffman, Ex parte, 442. 
 
 Huger V. Huger, 437. 
 
 Huggett V. Erb, 524; 
 
 Hugglns V. Huggins, 390. 
 
 Hughes V. Edwards, 563. 
 
 Hughes V. Hughes, 251, 283. 
 
 Hughes V. Jones, 535. 
 
 Hughes V. Murphy, 511. 
 
 Hughes V. People, 432. 
 
 Hughes V. Sellers, 469. 
 
 Hughes V. Smith, 445. ' 
 
 Hughes V. Toledo, etc. Scale Co., 602. 
 
 Hughes V. Watson, 507. 
 
 Hughes' Minors, Appeal of, 436. 
 
 Hughey v. Warner, 186. 
 
 Hughson's Estate, In re, 61, 63. 
 
 Huie V. Nixon, 40i4. 
 
 Huke V. Huke, 325. 
 
 Hulett V. Carey, 42, 46, 48. 
 
 Huling V. Hullng, 116, 120, 283. 
 
 Hull, Assignees of, v. Connolly, 486. 
 
 Hull V. Hull, 12, 13. 
 
 Hull V. Louth, 544, 545. 
 
 Hull V. Rawls, 64. 
 
 HuUey v. Moosbrugger, 640. 
 
 Hull's Assignees v. Connolly, 486. 
 
 Hulme V. Tenant, 186, 189. 
 
 Humber v. Humber, 250. 
 
 Humblrd Lumber Co. v. Doran, 209. 
 
 Humphrey, In re, 313. 
 
 Humphrey v. Bulsson, 440, 441. 
 
 Humphrey v. BuUen, 138. 
 
 Humphrey v. Douglass, 525. 
 
 Humphrey v. Pope, 115. 
 
 Humphries v. Davis, 315, 316, 817, 
 
 318. 319. 
 Hundley v. Sumrall, 534. 
 Hunn V. Railroad Co., 628, 629. 
 Hunt, Appeal of, 52. 
 Hunt V. De Blauquiere, 180. 
 Hunt V. Hunt, 24, 35, 88, 239, 240, 245, 
 
 262, 276, 287, 302. 
 Hunt V. Maldonado, 412. 
 Hunt V. Peake, 23, 476. 
 Hunt V. State, 457. 
 Hunt v. Thompson, 323, 324. 
 
CASES CITED 
 [The figures refer to pages] 
 
 695 
 
 Hunt V. Wayne Circuit Judges, 461. 
 
 Huntenberg, In re, 474, 493, 404, 510. 
 
 Hunter v. Atkins, 447, 449. 
 
 Hunter v. Bryant, 217. 
 
 Hunter v. Colfax Consol. Coal Co.. 
 
 636, 638. 
 Hunter v. Hunter, 266. 
 Hunter v. Ingram-Day Lumber Co., 
 
 634. 
 Hunter v. Lawrence's Adm'v, 440. 
 Hunter v. Milam, 39. 
 Huntington v. Claffln, 577. 
 Huntress v. Hanley, 214. 
 Hunycutt & Co. v. Thompson, 333, 361. 
 Huot V. Wise, 114. 
 Hurst V. Goodwin, 521. 
 Hurst V. W. B. Thompson & Co., 151. 
 Hurt V. Railroad Co., 468. 
 Hussey v. Whiting, 349. 
 Huston's Estate, In re, 32. 
 Hutchcraft v. Shrout's Heirs, 458. 
 Hutcheson v. Peck, 113, 116. 
 Hutching v. Engel, 524. 
 Hutchins v. Brown, 404. 
 Hutchins v. Dixon, 231. 
 Hutchins v. Dresser, 429. 
 ■Hutchins v. Johnson, 430. 
 Hutchins v. Kimmell. 38, 42, 44, 67. 
 Hutchinson v. Hutchinson, 412. 
 Hutchinson v. Wetmore, 604. 
 Hutton V. Hutton's Adm'r, 240. 
 Huyck, In re, 310. 
 Huyler's Ex'rs v. Atwood, 209. 
 Huyvaerts v. Roedtz, 154. 
 H. W. Gossard Co. v. Crosby, 599, 
 
 600, 601. I 
 
 Hyatt V. Adams, 110, 111, 112. 
 Hyde v. Hyde, 5. 
 Hyde v. Leisenring, 326, 333. 
 Hyde V. S,, 96. 
 Hyde v. Stone, 128, 129, 396. 
 Hyer v. Hyatt, 481. 
 Hylton V. Hylton, 447. 
 Hyman v. Harding, 86, 87. 
 Hynes v. McDermott, 44, 50. 
 
 Ihl V. Forty- Second St. & G. St. Fer- 
 ry R. Co., 377. 
 
 Ihley V. Padgett, 502. 
 
 Ihmsen, Appeal of, 433. 
 
 Illinois Cent. R. Co. v. Cox, 623. 
 
 Illinois Cent. R. Co. v. Downey, 647. 
 
 Illinois Cent. R. Co. v. Grable, 142, 
 
 Illinois Cent. R. Co. v. Panebiango, 
 612. 
 
 Illinois Cent. R. Co. v. Sanders, 306. 
 
 Illinois Cent. R. Co. v. Spence, 630. 
 
 Illinois Cent. R. Co. v. Tandy, 632. 
 
 Illinois Cent. R. Co. v. Whitteniore, 
 
 612. 
 Illinois Land & Loan Co. v. Bonner, 
 
 295, 296, 474, 496. 
 Illinois Steel Co. v. Saylor, 617. 
 Illinois Steel Co. v. Ziemkowski, 624, 
 
 633. 
 Illinois Terminal R. Co. v. Chapin, 
 
 633. 
 Imboden v. St. Louis Union Trust 
 
 Co., 8. 
 Imboden's Estate, In re, 2. 
 Imhoof V. Northwestern Lumber Co., 
 
 608. 
 Imlay v. Huntington, 188. 
 Imperial Loan Co. v. Stone, 541. 
 Indiana Car Co. v. Parker, 608. 
 Indiana Match Co. v. Kirk, 236. 
 Indiana Quarries Co. v. Farmer, 575. 
 Indiana Union Traction Co. v. Pring, 
 
 611. 
 Indianapolis Brewing Co. v. Belinke, 
 
 161. 
 Indianapolis Traction & Terminal Co. 
 
 V. Kidd, 110. 
 Indianapolis Union Ry. Co. v. Houli- 
 han, 635. 
 Indianapolis & M. Rapid Transit Co. 
 
 V. Reeder, 111. 
 Industrial Commission v. Daly Min- 
 ing Co., 637. 
 Industrial Commission of Colorado v. 
 
 ■jEtna Life Ins. Co., 641. 
 Inferior Court v. Cherry, 404. 
 Ingalls V. Allen, 577, 578. 
 Ingalls V. Campbell, 398. 
 IngersoU v. IngersoU, 264. 
 Ingersoll v. Jones, 376, 384. 
 Ingham v. Bickerdike, 453. 
 Ingraham v. Baldwin, 541. 
 Ingram v. Ison, 502. 
 Ingram v. Southern Ry. Co., 362. 
 Ingwaldson v. Skrivseth, 380. 
 Inhabitants of Alma v. Plummer, 178. 
 Inhabitants of Atkinson v. Medford, 
 
 18. 
 Inhabitants of Bucksi)ort v. Rock- 
 land, 518. 
 Inhabitants of Oharlestown v. Boston, 
 
 393. 
 Inhabitants of Dedham v. Natick, 325. 
 Inhabitants of Dennysville v. Tres- 
 
 cott, 360, 393. 
 Inhabitants of Freetown v. Taunton, 
 
 393. 
 Inhabitants of Goshen v. Richmond, 
 
 20. 
 Inhabitants of Hiram v. Pierce, .39, 
 
 67, 68, 71, 295. 
 
696 
 
 CASPS CITED 
 [The figures refer to pages] 
 
 Inhabitants of Medway v. Needham, 
 68, 69, 70. 
 
 Inhabitants of Middleborough v. 
 Rochester, 18, 20, 57. 
 
 Inhabitants of Milford v. Worcester, 
 37. 
 
 Inhabitants of Monson v. Palmer, 301, 
 306. 
 
 Inhabitants of Phillips v. Madrid, 72, 
 74. 
 
 Inhabitants of St. George v. Deer 
 Isle, 361. 
 
 Inhabitants of Sturbridge v. ^Frank- 
 lin, 175. 
 
 Inhabitants of Taunton v. Plymouth, 
 360, 518, 519. 
 
 Inhabitants of Town of Goshen v. 
 Stonington, 61. 
 
 Inhabitants of Unity v. Belgrade, 21, 
 57. 
 
 Inhabitants of Wells v. Kennebunk, 
 361. 
 
 Inhabitants of West Cambridge v. 
 Lexington, 70. 
 
 Inhabitants of West Gardiner v. Man- 
 chester, 360. 
 
 Inhabitants of Winslow v. Troy, 20. 
 
 Inland Steel Co. v. Kachwinski, 618. 
 
 Inland Steel Co. v. King, 621. 
 
 Insurance Co. of Tennessee v. Waller, 
 167. 
 
 International Harvester Co. v. Boat- 
 man, 582, 589. 
 
 International Harvester Co. v. Camp- 
 bell, 578. 
 
 International Land Co. v. Marshall, 
 508. 
 
 International Mercantile Marine Co. 
 V. Fleming, 608, 
 
 International Text-Book Co. v. Con- 
 nelly, 484, 485, 490, 501. 
 
 International Text-Book Co. T. Dor- 
 an, 484, 490, 510. 
 
 International Text-Book Co. v. Mc- 
 Kone, 482, 509. 
 
 Interstate Coal Co. v. Love, 476. 
 
 Irby V. State, 530. 
 
 Ireland v. Ireland, 202. 
 
 Ireland v. Ward, 114. 
 
 Iron Age Pub. Co. v. W. U. Tel. Co., 
 599. 
 
 Irvine v. Irvine, 475, 489, 492, 495, 
 502, 506. 
 
 Irving V. Ford, 304. 
 
 Irwin V. Dearman, 376, 381, 384. 
 
 Irwin V. F. P. Gould & Son, 632. 
 
 Irwin V. Irwin, 82, 350, 351. 
 
 Isaacs V. Davies, 586, 598. 
 
 Isaacs V. Isaacs, 81, 217, 218. 
 
 Isaacs V. Railroad Co., 649, 650. 
 
 Isaacs V. Taylor, 406, 418. 
 
 Ison V. Ison, 391. 
 
 Isphording v. Wolfe, 161, 206. 
 
 Israel v. Israel, 266. 
 
 Israel v. Silsbee, 82. 
 
 Ives V. Harris, 188. 
 
 Ives V. McNlcoU, 302. 
 
 Ivey v. Bessemer City Cotton Mills, 
 
 581, 588. 
 Izard V. Middelton, 226. 
 
 Jack, Appeal of, 435. 
 
 Jackson v. Banister, 44. 
 
 Jackson v. Beach, 564, 569. 
 
 Jackson v. Beard, 517. 
 
 Jackson v. Burchin, 496. 
 
 Jackson v. Claw, 32. 
 
 Jackson v. Claypool, 50. 
 
 Jackson v. Collins, 308. 
 
 Jackson v. Combs, 386. 
 
 Jackson v. Fitz Simmons, 564, 
 
 Jackson v. Green, 564. 
 
 Jackson v. Gumaer, 538. 
 
 Jackson v. Hocke, 307. 
 
 Jackson v. Hospital, 592. 
 
 Jackson v. Jackson, 68, 71, 196, 309, 
 
 432. 
 Jackson v. Kirby, 96. 
 Jackson v. McConnell, 139, 148. 
 Jackson v. O'Rorke, 436. 
 Jackson v. Phalen, 63, 65. 
 Jackson v. Pittsburgh, C, C. & St. Ia. 
 
 R. Co., 377. 
 Jackson v. Sears, 425. 
 Jackson v. Southern Ry., 623. 
 Jackson v. Stevens, 230. 
 Jackson v. Thornton, 296. 
 Jackson v. Williams, 101. 
 Jackson v. Winne, 14, 44, 48, 52. 
 Jackson ex dem. Wallace v. Carpenter, 
 
 506. 
 Jacksonville Electric Co. v. Adams, 
 
 523. 
 Jacksonville Electric Co. v. Sloan, 619. 
 Jacobi V. Jacobi, 290. 
 Jacobia v. Terry, 414. 
 Jacobs V. Cummins, 42. 
 Jacobs V. Jacobs, 217. 
 Jacobs V. Tobelman, 280. 
 Jacobson v. Hobart Iron Co., 618. 
 James, Ex parte, 419. 
 James v. Adams, 55, 64, 288j 
 James v. Allen Co., 598. 
 James v. Christy, 377. 
 James v. James, 260. 
 James v. Leroy, 357. 
 
CASES CITED 
 I'LTie figures refer to pages] 
 
 691 
 
 James v. Sasser, 487. 
 
 James v. Taylor, 162. 
 
 James v. Winifred Goal Co., 611. 
 
 James McOreery & Co. v. Martin, 169, 
 
 172. 
 ' Janes v. Janes, 32. 
 Janney v. Buell, 85. 
 Jansa's Estate, In re, 18. 
 Jaques v. Methodist Episcopal Church, 
 
 186, 188. 
 Jaques v. New York iii. E. Church, 191. 
 Jarret v. Andrews, 416. 
 Jarrett v. State, 405. 
 Jason V. Jervis, 225. 
 Jayne v. Sebewaing Coal Co., 609. 
 Jaynes v. Jaynes, 120. 
 Jee V. Thurlow, 240. 
 Jefferson v. Gallagher, 473. 
 Jeffrey v. Bigelow, 646. 
 Jeffrey's Estate, In re, 330. 
 Jeffs V. York, 655. 
 Jelineau v. Jelineau, 60. 
 Jemnienski v. Lobdell Car Wheel Co., 
 
 616. 
 Jeneson v. Jeneson, 538. 
 Jenkins v. Flinn, 163. 
 Jenkins v. Jenkins' Heirs, 21. 
 Jenkins v. Long, 583. 
 Jenkins v. Richmond & D. R. Co., 631. 
 Jenkins v. Tucker, 182. 
 Jenkins v. Walter, 421, 422. 
 Jenne v. Marble, 205. 
 Jenner v. Morris, 181. 
 Jenuers v. Howard, 538, 556. 
 Jenness v. Emerson, 355. 
 Jenness y. Jenness, 252. 
 Jenness v. Simpson, 114. 
 Jenney v. Alden, 359. 
 Jcuning v. Rohde, 388. 
 Jennings v. Camp, 604. 
 Jennings v. Copeland, 457. 
 Jennings v. Davis, 231. 
 Jennings v. Jennings, 263, 441. 
 Jennings v. Lyons, 593. 
 Jennings v. Philadelphia B. & W. Ry. 
 
 Co., 623. 
 Jennings v. Rundall, 99, 525, 526. 
 Jensen v. Jensen, 344, 345. 
 Jensen v. Kyer, 617, 620. 
 Jerome v. .Queen City Cycle Co., 592. 
 Jervoise v. Silk, 330. 
 Jessop V. Jessop, 276. 
 Jessup V. Jessup, 534. 
 Jewell V. Colby, 546. 
 Jewell V. Jewell, 44. 
 Jewett, Ex parte, 437. 
 Jewett V. Jewett, 271. 
 Jewsbury v. Newbold, 175, 179. 
 Jewson V. Moulson, 134. 
 
 J. G. V. H. G., 29. 
 
 J. I. Case Threshing Mach. Co. v. 
 
 Wiley, 154. 
 Jincey v. Winfield's Adm'r, 576. 
 Jobson's Estate, In re, 310, 318. 
 Joest V. Williams, 556. 
 Johannessen v. Johannessen, 244. 
 Johns V. Emmert, 408. 
 Johns V. Johns, 14, 254, 283. 
 Johnsen v. Johnsen, 280, 282. 
 Johnson, In re, 403. 
 Johnson v. Alexander, 468. 
 Johnson v. Allen, 115. 
 Johnson -v. Bennett, 142. 
 Johnson v. Bicknell, 356. 
 Johnson v. Boston & M. R. B., 621, 
 
 631. 
 Johnson v. Brauch, 234. 
 Johnson v. Coleman, 176, 180. 
 Johnson v. Copeland's Adm'r, 393. 
 Johnson v. Cummins, 191, 194, 212, 
 
 213. 
 Johnson v. Eversole Lumber Co., 564. 
 Johnson v. Far [West Lumber Co., 
 
 618. , 
 Jolinson V. Gallagher, 189, 191. 
 Johnson v. Garner, 154. 
 Johnson v. Glidden, 337. 
 Johnson v. Griffiths & Co., 184. 
 Johnson v. Holland, 210. 
 Johnson v. Insurance Co., 509, 510, 514. 
 Johnson v. Johnson, 10, 64, 71, 106, 
 
 146, 199, 248, 251, 256, 260, 263, 277, 
 
 278, 280, 40e, 445. 
 Johnson v. Johnson's Adm'r, 2, 44, 55, 
 
 68. 
 Johnson v. Johnson's Committee, 132.. 
 Johnson v. Kennecott, 466. 
 Johnson v. Kincade, 60. 
 Johnson v. Latty, 328. 
 Johnson v. Lines, 483, 485. 
 Johnson v. McKeown, 97, 98. 
 Johnson v. Medlicott, 556. 
 Johnson v. Phifer, 533. 
 Johnson v. Pie, 528. 
 Johnson v. Pye, 525. 
 Johnson v. Silsbee, 360, 365. 
 Johnson v. Smallwood, 332. 
 Johnson v. Spear, 622. 
 Johnson v. State,' 340, 341, 342, 531. 
 Johnson v. Storle, 495. 
 Johnson v. Sumner, 173, 174, 179. 
 Johnson v. Terry, 334, 345, 352. 
 Johnson v. Towboat Ca, 626. 
 Johnson v. Water Co., 575, 629. 
 Johnson v. Western & A. R. Co., 653. 
 Johnson v. Williams, 180. ' 
 Johnson's Adm'r v. Johnson's Ex'r, 
 
 396. 
 
898 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Jolinson's Adm'rs v. Johnston, 134. 
 
 Johnson's Committee v. Mitchell, 535. 
 
 Johnson's Heirs v. Raphael, 41. 
 
 Johnston v. Coleman, 413, 415. 
 
 Johnston v. Disbrow, 121. 
 
 Johnston v. Gerry, 495. 
 
 Johnston v. Sumner, 171. 
 
 Johnstone v. Beattie, 393, 404, 405, 407, 
 416. 
 
 Johnstone v. Mappin, 227. 
 
 Joliet Mfg. Co. V. Dice, 602. 
 
 Jolly V. Bees, 171, 173. 
 
 Jonas V. Field, 592. 
 
 Jonas Glass Co. v. Glass Bottle Blow- 
 ers' Ass'n of United States and 
 Canada, 644. 
 
 Jones, Appeal of, 221. 
 
 Jones V. Bank, 476. 
 
 Jones V. Bean, 312. 
 
 Jones V. Blocker, 643, 644. 
 
 Jones V. Bond, 130. 
 
 Jones V. Bowman, 404. 
 
 Jones V. Brewer, 412. 
 
 Jones V. Carter, 14]. 
 
 Jones V. Clifton, 187. 282. 
 
 Jones V. Colvin, 486. 
 
 Jones Y. Crosthwaite. 207. 
 
 Jones V. Davenport, 133. 
 
 Jones V. Dun ton, 598. 
 
 Jones V. Field, 592. 
 
 Jones V. Jones, 31, 52, 63, 80, 83, 151, 
 160, 244, 253, 256, 260, 286, 287, 290, 
 292. 
 
 Jones V. Jones' Ex'r, 195. 
 
 Jones V. Jndd, 593. 
 
 Jones V. McMasters, 564. 
 
 Jones V. Monson, 117. 
 
 Jones V. Patterson, 141. 
 
 Jones V. Plummer, 142. 
 
 Jones V. Powell, 405. 
 
 Jones V. Read-Jones, 264. 
 
 Jones v. Reddick, 50. 
 
 Jones V. B. J. Reynolds Tobacco Co., 
 610. 
 
 Jones V. State, 531. 
 
 Jones V. Tevis, 385. 
 
 Jones V. Transportation Co., 586. 
 
 Jones V. Valentine's School of Teleg- 
 raphy, 474, 481, 482, 511. 
 
 Jones V. Ward, 451. 
 
 Jones V. W. A. Smith & Co., l49. 
 
 Jones V. Wocher, 163. 
 
 Jones-Rosquist-Killen Co. v. Nelson, 
 87. 
 
 Jordan v. Coffleld, 484, 488. 
 
 Jordan v. Hovey, 379. 
 
 Jordan v. Jackson, 167. 
 
 Jordan v. Jordan, 128. 
 
 Jordan y. Kirkpatrlck, 540. 
 
 Jordan v. Missouri & Kansas Tele- 
 phone Co., 5, 11, 16, 58, 69. 
 Jordan v. State, 551. 
 Jordan v. Wright, 331. 
 Joslin V. Ice Co., 651. 
 J. P. Leininger Lumber Co. v. Dewey^ 
 
 222. 
 Judge of Probate v. Chamberlain, 138. 
 Judge of Probate v. Toothaker, 458. 
 Judkins v. Walker, 517. 
 Judson V. Blanchard, 468. 
 Judson V. Judson, 83, 243, 244. 
 Julian V. Julian, 351. 
 Junction B. Co. v. Harris, 140. 
 June V. Labadie, 83, 206. 
 Just V. State Savings Bank, 212. 
 Justice V. Justice, 495. 
 Justis V. English, 187. 
 Juvenile Court of Sh^by County v. 
 State, 464. 
 
 K 
 
 Kahlo V. Kahlo, 36. 
 
 Kahl V. Schober, 559. 
 
 Kahn v. Kahn, 46. 
 
 Kain v. Larkin, 359, 360. 
 
 Kair, Ex parte, 574. 
 
 Kamil v. New York College of Den- 
 tistry, 514. 
 
 Kaminsky v. Chicago Bys. Co., 633. 
 
 Kampmann v. Rothwell, 653. 
 
 Kancevich v. Cudahy Packing Co.,. 
 611, 614. 
 
 Kane, In re, 330, 331. 
 
 Kane v. Babcock & Wilcox Co., 616, 
 624. 
 
 Kane v. Erie B. Co., 632. 
 
 Kansas Central B. Co. v. Fitzsimmons, 
 522. 
 
 Kansas City, M. & O. By. Co. v. Loos- 
 ley, 653. 
 
 Kansas Union Life Ins. Co. v. Bur- 
 man, 596. 
 
 Kantrowitz v. Prather, 190. 
 
 Kapigian v. Der Minassian, 288. 
 
 Karoly v. Industrial Commission, 636. 
 
 Karr v. Parks, 366, 368. 
 
 Karr's Adm'r v. Kan-, 431, 445. 
 
 Kaspar v. People, 458. 
 
 Kath V. East St. Louis & S. B. Co.. 
 618. 
 
 Kaufman v. Clark, 382. 
 
 Kaufman v. Geoson, 73. 
 
 Kaufman v. Kaufman, 240, 291. 
 
 Kavanaugh r. JanesvlUe, 112. 
 
 Kay V. Whittakei-, 141. 
 
 Kaye, In re, 403, 405, 
 
 Kayser v. Van Nest, .337. 
 
 Kayton v. Barnett, 655. 
 
CASES CITED 
 [The figures refer to pages] 
 
 699 
 
 Keagy v. Trout, 131, 133. 
 
 Keane v. Boycott, 472, 496, 643, 644. 
 
 Keane v. Liebler, 604. 
 
 Kearney v. Vann, 200. 
 
 Keaton v. Davis, 324. 
 
 Keats V. Keats, 279. 
 
 Keeble v. Cummins, .j3S. 
 
 Keecli V. Enrlquez, 309. 
 
 Keecli V. Keech, 89, 263. 
 
 Keedy v. Long, 589, 596, 597, 598, 599. 
 
 Keefer v. Amicone, 84. 
 
 Keegan v. Geraglity, 316, 317, 320. 
 
 Keeler v. Fassett, 386. 
 
 Keen v. Coleman, 99. 
 
 Keen v. Hartman, 99. 
 
 Keen v. Keen, 120. 
 
 Keesey v. Keesey, 264. 
 
 Keesling v. Keesling, 351. 
 
 Keffe V. Milwaukee & St. P. R. Co., 
 
 522. 
 Kehr v. Smith, 237. 
 Keil V. Keil, 245. 
 Keister's Adm'r v. Keister's Ex'rs, 
 
 107. 
 Keith V. Keith, 29. 
 Kekewich v. Manning, 231. 
 Kellar v. James, 101. 
 Keller v. Donnelly, 376, 384. 
 Keller v. Phillips, 170, 172, 173, 175. 
 Kelley v. Adams, 430. 
 Kelley v. Davis, 323, 324, 481. 
 Kelley v. Dearman, 234. 
 Kelley v.Haylock, 639. 
 Kelley v. Kelley, 59, 60. 
 Kelley v. Railroad Co., 619. 
 Kelliher v. Kennard, 212. 
 Kellogg, In re, 398, 399. 
 Kellogg V. Adams, 388. 
 Kelly, In re, 313. 
 Kelly V. Canon, 84. 
 Kelly V. Johnson, 575, 622. 
 Kelly V. Kelly, 255. 
 Kelly V. Neely, 27, 28. 
 Kelly V. Partington, 601. ' 
 Kelly V. Pratt, 565. 
 Kelly V. Scott, 58. 
 Kelly V. Smith, 405. 
 Kelly V. State, 559. 
 Kelly V. Tyra, 622. 
 Kelly's Estate, In re, 296. 
 Kellyville Coal Co. v. Bruzas, 611. 
 Kelsey v. Green, 461. 
 Kelso V. Tabor, 157. 
 Kemp V. Dowuham, 176, 178. 
 Kemp V. Cossart, 391. 
 Kemp V. Kemp, 82. 
 Kemp V. McNeill Cooperage Co., 613. 
 Kendall v: May, 470. 
 Kendall v. Miller, 396. 
 
 Kehdrick v. Neisz, 474, 498, 499, 504. 
 Kendrick's Estate, In re, 554. 
 Keneflck-Hammond Co. v. Rohr, 631. 
 Kenge v. Delavall, 156. 
 Kenley v. Kenley, 33, 253. 
 Kennaird v. Adams, 418. 
 Kennard v. Burton, 368. 
 Kennedy v. Baker, 503. 
 Kennedy v. Kennedy, 88, 251, 254, 
 
 259, 261. 
 Kennedy v. McCann, 388. 
 Kennedy v. Meara, 462. 
 Kennedy v. New York Cent. & H. R. 
 
 R. Co., 356, 376. 
 Kennedy v. Shea, 370, 371, 380. 
 Kennedy v. State, 295, 297. 
 Kennedy v. Swisher, 127, 161. 
 Kenner v. Kenner, 289, 368. 
 Kenney v. Baltimore & O. R. Co., 385. 
 Kenny v. Udall, 134, 135, 136. 
 Jfensington v. DoUond, 129. 
 Kent V. La Rue, 541. 
 Kent Furniture Mfg. Co. v. Ransom, 
 
 605. 
 Kentzler v. Kentzler, 351. 
 Kenure v. Braluerd & Armstrong Co., 
 
 354, 359. 
 Kenyon v. Farris, 181. 
 Keppelmann v. Keppelmann, 568. 
 Kepperly v. Ramsden, 653. 
 Kerley, Succession of, 154. 
 Kern v. Kern, 18. 
 Kerr v. Forgue, 368. 
 Kerrigan v. Hall, 310. 
 Kerrigan v. Rautigan, 388. 
 Kessler v. Kessler, 176. 
 Ketchum v. Faireloth-Segrest Co., 519. 
 Ketsey, Case of, 489. 
 Ketterer v. Nelson, 180, 182. 
 Kettletas v. Gardner, 405, 454. 
 Kevan v. Waller, 451. 
 Key, Lessee of, v. Davis, 539. 
 Key V.' Harris, 540. 
 Keyes v. Keyes, 10, 21, 60. 
 Keystone Brewing Co. v. Varzaly, 
 
 161. 
 Keystone Bridge Co. v. Newberry, 629. 
 Kibblewhite v. Rowland, 277. 
 Kidd V. Montague, 197. 
 Kientz v. Kientz, 81. 
 Kieman, In re, 416. 
 Kies V. Young, 184. 
 Kiley v. Rutland R. Co., 624, 627. 
 Kilgore v. Rich, 482, 484. 
 Killackey v. Killackey, 63. 
 Killiher v. Kennard, 212' 
 Killingswprth v. Keen, 103. 
 Kilpatrick v. Kllpatrick, 167, 
 Kimball, In re, 290. 
 
700 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Kimball v. Cushman, 651. 
 
 Kimball v. Keyes, 177, 178. 
 
 Kimball v. Perkins, 426. 
 
 Kimberlin v. Southwestern Bell Tele- 
 phone Co., .609, 610. 
 
 Kimberly v. Howland, 111. 
 
 Kimble v. Kimble, 155. 
 
 Kimmey v. Abney, 167. 
 
 Kinard v. Proctor, 502. 
 
 King V. Davis, 194. 
 
 King V. Ploding, 368. 
 
 King V. Ford, 621. 
 
 King V. King, 256, 444. 
 
 King V. Norfolk & g. R. Co., 617, 634. 
 
 King T. Railroad Co., 651, 652, 654, 
 655. 
 
 King V. Seaboard Air Line Ry. Co., 
 
 . 578, 
 
 King V, Smythe, 336. 
 
 King v/ State Ins. Fund, 640, 
 
 King V. Talbot, 433, 435. 
 
 King V. Thompson, 108, 111, 112. 
 
 King V. Woodstock Iron Co., 613. 
 
 King's Estate, In re, 391. 
 
 Kingman-Texas Implement Co. v. 
 Herring Nat. Bank, 200. 
 
 Kingsley, In re, 442. 
 
 Kinkaid v. Kinkaid, 271. 
 
 Kinkaid v. Lee, 153, 198. 
 
 Kinney v. Calumet Pub. Co., 581. 
 
 Kinney v. Com., 71. 
 
 Kinney v. Kinney, 327, 351. 
 
 Kinney v. Tri-State Tel. Co., 32, 62. 
 
 Kinnier v. Kinnier, 245. 
 
 Kinsey v. Feller, 199. 
 
 "Kinsey v. Kinsey, 77, 253, 260. 
 
 Kinsey v. State, 330. 
 
 Kintzinger's Estate, In re, 131. 
 
 Kirby v. Taylor, 448. 
 
 Kirckman's Estate, In re, 405. 
 
 Kirk V. Middlebrook, 367, 386. 
 
 Kirkham v. Wheeler-Osgood Co., 466. 
 
 Klrkland v. Matthews, 345. 
 
 Kirkland v. Whately, 417. 
 
 Kirkman, Ex parte, 488. 
 
 Kirkman v. Kirkman, 253. 
 
 Kirkpatrick v. Kirkpatrick, 261. 
 
 Kirkpatrick v. Lockhart, 385. 
 
 Kirkpatrick v. Metropolitan St. R. 
 Co., 111. 
 
 Kirkwall v. Kirkwall, 280. 
 
 Kistner v. American Steel Foundries, 
 620. 
 
 Kitchen v. Bedford, 229. 
 
 Kitchen v. Lee, 475, 508. 
 
 Kitzman v. KitRman, 6, 59, 70. 
 
 Kjellander v. Kjellander, 350. 
 
 Klapp Y. Pulsipher, 314, 316. 
 
 Klapp's Estate, In re, 316, 317. 
 
 Klaus V. A. C. Thompson Auto & Bug- 
 gy Co., 514.- 
 
 Klaus V. State, 468. 
 
 Klecman v. Collins, 579. 
 
 Klein v. Klein, 88, 118, 351. 
 
 JClein V. Landman, 64. 
 
 Kleinert v. Ehlers, 296. 
 
 Kleist V. Breitung, 117. 
 
 Klenke v. Noonan, 37, 41. 
 
 Klenke's Estate, In re, 147. 
 
 Kleps V. Bristol Mfg. Co., 634., 
 
 Kline v. Beebe, 396, 494. 
 
 Kline v. Galland, 495. 
 
 Kline vl Kline, 224, 252, 289. 
 
 Kline v. L'Amoureux, 486. 
 
 Kline's Estate, In re, 223. 
 
 Klingman v. Holmes, 368, 369, 375. 
 
 Klipfel Y. Klipfel, 42. 
 
 Klopfer V. Bromme, 382. 
 
 Klopfer V. Mittenthal, 181. 
 
 Klunk V. Blue Pearl Granite Co., 616. 
 
 Knapp V. Crosby, 469. 
 
 Knapp V. Knapp, 250. 
 
 Knapp V. Tolan, 345. 
 
 Knappen v. Freeman, 104. 
 
 Knecht v. Knecht, 53, 81. 
 
 Knee, Ex parte, 305. 
 
 Knight V. Callaway, 312, 314. 
 
 Knight V. Knight, 256. 
 
 Knight V. Plimouth, 432. 
 
 Knight V: Wilcox, 382. 
 
 Knights Templars & Masons' Life In- 
 demnity Co. V. Crayton, 430. 
 
 Knoblock & Rainold v. iJ'osey, 150. 
 
 Knorpp V. Wagner, 618. 
 
 Knost V. Knost, 5. 
 
 Knott, In re, 312, 313, 314, 395. 
 
 Knott y. Cottee, 403. 
 
 Knowack, In re, 461. 
 
 Knowlman v. Bluett, 306. 
 
 Knowlton t. Bradley, 422, 431, 445. 
 
 Knox V. Flack, 473. 
 
 Knox V. Haug, 543. 
 
 Kobogum V. Jackson Iron Co., 55. 
 
 Koch V. Sallee, 234. 
 
 Koehler v. Buhl, 582. 
 
 Koehler v. Koehler, 16. 
 
 Koenke v. Bauer, 379. 
 
 Koerner v. St. Louis Car Co., 624, 626, 
 633. 
 
 Kohlhoss V. Mobley, 122. 
 
 Kohn V. Fandel, 604. 
 
 Kol, In re, 462. 
 
 Konigmacher v. Kimmel, 434, 435. 
 
 Koonce v. Wallace, 22, 23. 
 
 Koopman v. Mansolf, 160. 
 
 Kosanke's Estate, In re, 82, 84. 
 
 Koschman v. Ash, 609. 
 
CASES CITED 
 [The figures refer to pages] 
 
 701 
 
 Kosciolek v. Portland Ey., Light & 
 
 Power Co., 113. 
 Kosminsky v. Goldberg, 97. 
 Kostachek v. Kostachek, 278, 279. 
 • Kotera v. American Smelting & Re- 
 
 flnliJg Co., 606, 609. 
 Kotzke V. Kotzke's Estate, 301. 
 Kovacs V. Mayoras, 109. 
 Kowing V. Manly, 96, 98, 99, 101. 
 Krachanake v. Acme Mfg. Co., 566. 
 Kraft V. Wlckey, 442. 
 Kraker v. Byrum, 411, 486. 
 Krautlioff, In re, 351. 
 Krbel v. Krbel, 494. 
 Krebs v. O'Grady, 158. 
 Kremer v. Eagle Mfg. Co., 614. 
 Kriz V. Peege, 194, 199, 207, 211. 
 KroeU v. Kroell, 216, 219. 
 Kroessin v. Keller, 121, 122, 123. 
 Kroff \. Amrbein, 314, 817. 
 >- Krom V. Schoonmaker, 546, 547. 
 Krompier v. Spivek, 582. 
 Krouse v. Krouse, 160. 
 Krouskop V. Shontz, 218. 
 Kruczkowski v. Polonia Publishing 
 
 Co., 639. 
 Krueger v. Railway Co., 626. 
 Krueger v. Eoxford Knitting Co., 589. 
 Krug V. Davis, 311. 
 Kuhlman v. Wieben, 555. 
 Kuipers v. Thome, 475. 
 Kujek V. Goldman, 105. 
 Kuklence v. Vocht, 103, 104. 
 Kupka V. Kupka, 262. 
 Kurtz V. St. Paul & D. R. Co., 407. 
 Kurtz V. West Duluth Land Co., 407. 
 Kuster v. Dickson, 164. 
 Kustuvin V. Chicago & A. R. Co., 634. 
 Kutch V. Kutch, 8, 18. " 
 Kutter's Estate, In re, 68. 
 Kyle V. Bamett, 418. 
 
 L. V. L.; 30. 
 
 La Boute v. La Boute, 245. 
 
 Lackman v. Wood, 363, 365, 466. 
 
 Lacoste v. Guidroz, 15. 
 
 La Cotts V. Quertermous, 502. 
 
 Lacy V. Getman, 594. 
 
 Lacy V. Plxler, 491, 495, 512. 
 
 Lacy V. Williams, 393. 
 
 La Flamme v. La Flamme, 261. 
 
 La Fleur v. M. A. Burns Lumber Co., 
 
 607. 
 La Framboise v. Day, 288. 
 La Graade Laundry Co. v. Pillsbury, 
 
 639. 
 
 Lahoma Oil Co. v. State Industrial 
 Commission, 636. 
 
 Laidley v. Central Land Co., 140, 167. 
 
 Laird v. Dickirsou, 534. 
 
 Laird v. Vila, 234. 
 
 Lake v. Bender, 151, 153, 154. 
 
 Lake v. Perry, 466, 491, 495, 512, 519. 
 
 Lake Erie & W. Ry. Co. v. Tlerney, 
 578, 582, 596. 
 
 Lakeman v. Pollard, 594. 
 
 Lake Shore & M. S. Ry. Co. v. La- 
 valley, 630. 
 
 Lake Shore & M. S. Ry. Co. v. Spang- 
 ler, 630. 
 
 Lake Superior Iron Co. v. Erickson, 
 623. 
 
 Lalande v. Aldrich, 577, 591. 
 
 Lally v. Cantwell, 645. 
 
 Lally V. Sullivan, 461. 
 
 Lalor V. R. Co., 620. 
 
 Lamar v. Micou, 393, 895, 416, 417, 426, 
 432, 433, 435, 436. 
 
 Lamb v. Harbaugh, 110. 
 
 Lamb v. Lamb, 210. 
 
 Lamb's Estate, In re, 404. 
 
 Lambert v. 'Lambert, 259, 275. 
 
 Lamkin & Foster v. Le Doux, 487, 498. 
 
 Lammi v. Milford Pink Granite Quar- 
 ries, 624. 
 
 Lamphier v.' State, 93. 
 
 Lamphir v. Creed, 128. 
 
 Lancaster County Nat. Bank v. Moore, 
 542. 
 
 Land v. Martin, 280. 
 
 Land v. State, 481. 
 
 Lander v. Seaver, 340. 
 
 Landers' Estate, In re, 317. 
 
 Landes v. Landes, 215, 228, 225. 
 
 Landgraf v. Tanner, 171. 
 
 Lando's Estate, In re, 62, 67, 68. 
 
 Landrum v. Loose-Wtles Biscuit Co., 
 610. 
 
 Landry v. American Creosote Works, 
 301. 
 
 Landry v. Bellanger, 88. 
 
 Lane v. Ironmonger, 171. 
 
 Lanferman v. Vanzile, 318. 
 
 Lang V. State, 462. 
 
 Lang V. Wilmer, 146. 
 
 Langdon v. Clayson, 494. 
 
 Langer v. Kaufman, 357, 363. 
 
 Langham v. Nenny, 131. 
 
 Lanham v. Lanham, 72. 
 
 Lanigan v. Miles, 198. 
 
 Laning v. New York Cent. R. Co., 616. 
 
 Laning v. Railroad Co., 611, 627. 
 
 Lannlng v. Brown, 495. 
 
 Lanning v. Chicago Great Western Ey. 
 Co., 632. 
 
702 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Lantry v. Parks, 604. 
 /La Point v. Monadnock Paper Mill, 
 
 638. 
 Lapre v. Woronco St. Ry. Co., 621. 
 Larisa v. Tiffany, 76, 127. 
 La Riviere v. La Riviere, 55. 
 Larkin v. Heckslier, 584. 
 Larkin v. Woosley, 126, 200. 
 La Rosa V. Nicliols, 474, 487, 491. 
 Larsen v. Johnson, 227. 
 Larson v. Kieburtz, 632. 
 Larson v. Larson, 199. 
 Larson v. St. Paul, M. & M. R. Co., 
 
 612. 
 La Rue v. Gilkyson, 540. 
 La Rue v. Kempf, 327. 
 Lasater v. Jamison, 155. 
 Laslibrook v. Patten, 335. 
 Lataillade v. Orena, 447, 457. 
 Latham v. Ellis, 345. 
 Latham v. Latham, 255. 
 Lathrop v. Smalley's Ex'rs, 433. 
 Latour v. Guillory, 153. 
 Latrobe v. Dietrich, 475, 496. 
 Laubach v. Cedar Rapids Supply Co., 
 
 605. 
 Lauber v. Mast, 252. 
 Lauer v. Banning, 6. 
 Laughlin v. Eaton, 108. 
 Laverty v. Hambrlck, 617. 
 Lavoie v. Dube, 83. 
 Law, In re, 426. 
 Law V. Com., 530, 531. 
 Law V. Long, 507. 
 Law's Estate, 434. 
 Lawder v. Larkin, 475, 494, 518. 
 Lawler v. Androscoggin R. Co., 631. 
 Lawler v. Railroad Co., 629. 
 Lawless v. Railroad Co., 626. 
 Lawrence v. Morris, 544. 
 Lawrence v. Sinnamon, 86. 
 Lawrence v. Willis, 538. 
 Lawrence's Lessee v. McArteir, 473. 
 Laws V. State, 558. 
 Lawshe v. Trenton Banking Co., 234. 
 Lawson v. Lovejoy, 500. 
 Lawson v. Scott, 305. 
 Lawyer v. Fritcher, 379. 
 Laycock v. Laycock, 277, 281. 
 Layne v. Clark, 426. 
 Lea v. Lea, 264. 
 Leach v. Leach, 255, 272. 
 Leach v. Railroad Co., 602. 
 Leache v. State, 551. 
 Leacox v. Griffith, 495. 
 Leake v. J. R. King Dry Goods Co., 
 
 332. 
 Leake v. Lucas, 87, 
 
 Leakey v. Maupin, 139. 
 Leary v. R. Co., 619. 
 Lease, In re, 312, 313, 314. 
 Leatherberry v. Odell, 588, 589, 591, 
 
 592, 596, 597. 
 Leavel v. Bettis, 452. 
 Leavitt v. Leavitt, 10, 11, 16, 237. 
 Leaycraft v. Hedden, 188. 
 Lebanon v. Griffin, 392.- 
 Le Barron v. Le Barron, 59, 60, 244. 
 Le Blanc, Succession of, 152. 
 Le Blanc v. Le Blanc, 152. 
 Le Blanc v. Sayers, 233. 
 Lechmere v. Brotheridge, 188. 
 Ledwith V. Ledwith, 405, 406. 
 Lee V. Ashbrook, 605. 
 Lee V. Brown, 415, 416. 
 Lee V. Equitable Life Assur. Soc, 472. 
 Lee V. Frater, 308. 
 Lee V. Henderson, 154. 
 Lee V. Hibernia Savings & Loan Soc, 
 
 473. 
 Lee V. Hodges, 383. 
 Lee V. Lee, 35, 270. 
 Lee V. Lord, 646. 
 Lee V. Muggeridge, 158. 
 Lee V. Savannah Guano Co., 126, 127. 
 Lee V. Shankle, 302. 
 Lee V. State, 8, 49. 
 Lee V. Yandell, 544. 
 Lee's Will, In re, 560. 
 Leech v. Leech, 280. 
 Leefield v. Leefleld, 71. 
 Leeson v. Saw Mill phoenix, 620. 
 Leete v. State Bank, 196. 197. 
 Lefens v. Industrial Commission, 642. 
 Lefever v. Lefever, 452. 
 LeFevre v. Laraway, 419. 
 Lefler v. Oelrichs, 513. 
 Legg V. Legg, 128, 131. 
 Lehigh Valley Coal Co. v. Washko, 
 
 562. 
 Lehigh & Wilkes-Barre Coal Co. v. 
 
 Hayes, 608. 
 Lehman v. Lehman, 275. 
 Lehman v. State, 566. 
 Lehman & Co. v. Slat, 201. 
 Lehmann v. Rothbarth, 401. 
 Leibold v. Leibold, 325. 
 Leimgruber v. Leimgi'uber, 160. 
 Lein v. Centaur Motor Co. of Illinois, 
 
 482, 487. 
 Leininger Lumber Co. v. Dewey, 222. 
 Leitensdorfer v. Hempstead, 506. 
 Leith V. Leith, 248. 
 Lemke v. Ady, 335. 
 Lemmon v. Beeman, 474, 510, 512. 
 Lemon v. Hansbarger, 456. 
 
CASES CITED 
 [The figures refer to pages] 
 
 703 
 
 Lemons v. BiCdy, 209. 
 
 Lemons v. Harris, 31. 
 
 Lenahan v.' Pittston Coal Miii. Co., 574. 
 
 Lenderman v. Talley, 132, 133. 
 
 Lennox v. Eldred, 157. 
 
 Leonard v. H. Weston Lumber Co., 316. 
 
 Leonard v. Leonard, 269, 542. 
 
 Leonard v. Licker, 463. 
 
 Leonard v. Putnam, 442. 
 
 Leonard & Sons v. Stowe, 172. 
 
 Leopold V. Salkey, 587, 593. 
 
 Leros v. Parker, 103. 
 
 Le Roy v. Jacobosky, 438. 
 
 Leslie v. Bell, 129. 
 
 Leslie V. Lewiston, 523. 
 
 Leslie V. Proctor & Gamble Mfg. Co., 
 
 387. 
 LessofE V. Gordon, 335, 336. 
 lie iSuer v. Le Suer, 8, 52. 
 Letot V. Peacock, 152. 
 Leuppie v. Osborn's Ex'rs, 181. 
 Levering v. Heighe, 496, 497. 
 Levering v. Levering, 260. 
 Levesque v. Charlton Mills, 608. 
 Levi V. Earl, 212. 
 Levy V. Brown, 154: 
 Levy V. Downing, 24, 70. 
 Levy V. Goldsoll, 76. 
 Lewicki v. John C. Wiardi & Co., 563. 
 Lewis, Ex parte, 464. 
 Lewis V. Alston, 539. 
 Lewis V. Castello, 406. 
 Lewis V. Edwards, 412. 
 Lewis V. Eutsler, 308. 
 Lewis V. France, 87. 
 Lewis V. Lewis, 10, 11, 18, 19, 62, 64, 
 
 83, 263. 
 Lewis V. Littlefield, 524, 527. 
 Lewis V. Lynch, 86. 
 Lewis V. Missouri, K. & T. Ry. Co., 
 
 360. 
 Lewis V. Railroad Co., 626. 
 Lewis V. Seifert, 612, 626, 627, 629. 
 Liewis V. Sizemore, 295. 
 Lewis V. Steele, 336. 
 Lewis' Estate, In re, 126. 
 Lewis & Clark County v. Industrial 
 
 Accident Board of Montana, 636. 
 Libby v. Berry, 105. 
 Liberty v. Palermo, 362. 
 Libhart v. Wood, 589. 
 Libman v. Libman, 10. 
 Lichtenberger v. Graham, 129. 
 Liebold v. Liebold, 325. 
 Ligare v. Semple, 145. 
 Ligon V. Wharton, 199, 201. 
 Lillard v. Turner, 190, 192. 
 Lllley V. Elwin, 589, 590, 604. 
 Lilliank;amp v. Rippetoe, 106. 
 
 Lillie v. Lillie, 270. 
 
 Lilly V. Waggoner, 538. , 
 
 Lilly V. Yeary, 151. 
 
 Limpus V. London General Omnibus 
 
 Co., 646. 
 Lincecum v. Llncecum, 295. 
 Lincoln v. Buckmaster, 542. 
 Lincoln v. Lincoln, 56. 
 Linden v. McClintock, 114. 
 Lindley v. Cross, 208. * 
 
 Lindner's Estate, In re, 344, 
 Llndo v. Bellsario, 49. 
 Lindsay v. Glass, 599. 
 Lindsay v. Lindsay, 280, 463. 
 Lindsay v. Oregon Short Line B. Co., 
 
 109, 110. 
 Line V. Lawder, 447. 
 Linebaugh v. Llnebaugh, 5. 
 Lingen v. Lingen, 304. 
 Link V. New York Life Ins. Co., 514. 
 Linguist v. Hodges, 633. 
 Linsey v. Jefferson, 50. 
 Linton v. Walker, 386, 396, 455, 456. 
 Lipinsky v. Revell, 83. 
 Lipps V. Milwaukee Electric Ry. & 
 
 Light Co., 521. 
 Lipsey v. Battle, 305. 
 Lister v. Lister, 229, 231, 288. 
 Lister's (Agricultural Chemical Works 
 
 V. Pender, 577. 
 Litchenstein v. Brooks, 596, 598. 
 Litchfield V. Cud worth, 140, 141. 
 Little V. Duncan, 499, 500. 
 Little V. Marsh, 132. 
 Little V. Nicholson, 153. 
 Little Miami R. Co. v. Stevens, 630. 
 Little Miami R. Co. v. Wetmore, 648. 
 Little Rock Gas & Fuel Co. v. Cop- 
 
 pedge, 109, 111. 
 Little Rock & Ft. S. Ry. Co. v. Barker, 
 
 377. 
 Little Rock & M. R. Co. v. Barry, 628. 
 Littler v. Geo. A. Fuller Co., 641. 
 Littleton v. Sain, 186. 
 Livermore v. Bemis, 457. 
 Livermore v. Ratti, 444, 451. 
 Liyernois' Estate, In re, 414. 
 Livingston, Ex parte, 310. 
 Livingston v. Conant, 88. 
 Livingston v. Livingston, 2, 231. 
 Lloyd, In re, 305. 
 Lloyd V. Fulton, 226, 235. 
 Lloyd V. Lee, 157. 
 Lloyd V. Lloyd, 19, 276. 
 Locke V. Smith, 482, 514. 
 Lockwood V. Corey, 164. 
 Lockwood V. Thomas, 178. 
 Loftus V. Loftus, 263. 
 Logan V. Fairlee, '405. 
 
704 
 
 CASES CITED 
 LI%e figures refer to pagesj 
 
 Logan V. Farlee, 407. ' 
 
 Logan V. Gardner, 475. 
 
 Logan V. Gay, 413. 
 
 Logan V. Murray, 371, 378, 384, 
 
 liOgan V. Vanarsdall, 534. 
 
 Lohmuller v. Lolamuller, 251. 
 
 Loker v. Gerald, 245, 290. 
 
 Lommis v. Deets, 385. 
 
 London v. G. L. Anderson Brass 
 
 Works, 227. 
 London Guarantee & Ace. Co. v. Horn, 
 I 645. 
 London & N. W. By. Oo. v. McMichael, 
 
 490. 
 Long V. Baxter, 23. 
 Long V. Booe, 121. 
 Long V. Dufer, 311. 
 Long V. Foley, 610. 
 Long V. Folwell Bros. & Co., 613. 
 Long V. Fox, 545. ' 
 
 Long V. Long, 10, 12, 448, 458. 
 Long v. Morrison, 112. 
 Long V. Norcom, 416. 
 Long V. Smith, 352. 
 Longendyke v. Longendyke, 105. 
 Longhofer v. Herbel, 360. 
 Longino v. Delta Bank, 428. 
 Longstr«et v. Tilton, 429. 
 Loomis V. Deets, 885. 
 Lord V. Goldberg, 583. 
 Lord V. Hough, 409. 
 Lord V. Poor, 334, 354, 365. 
 Lord V. Thomas, 587. 
 Lorimer v. Lorimer, 45, 48. 
 Loring v. Bacon, 458. 
 Los Angeles County v. Winans, 434. 
 Losey v. Bond, 503. 
 Lotz V. Hanlon, 647. 
 Loucks V. Butcher, 332. 
 Loud V. Loud, 240. 
 Louis V. Blfelt, 594. 
 Louisville Bolt & Iron Co. v. Hart, 620. 
 Louisville, B. & St. L. Consol. R. Co. 
 
 V. Hawthorn, 632. 
 Louisville, H. '& St. L. E. Co. v. Lyons, 
 
 366, 520. ' 
 
 Louisville, N. O. & T. R. Co. v. Con- 
 
 roy, 653. 
 Louisville & N. R. Cp. v. Brown, 632. 
 Louisville & N. E. Co. v. Collins, 630. 
 Louisville & N. E. Co. v. Cox, 589. 
 Louisville & N. E. Co. v. Gillen, 648. 
 Louisville & N. R. Co. v. Kemp, 634. 
 Louisville & N. E. Co. v. Kinman, 111. 
 Louisville & N. R. Co. v. Pendleton's 
 
 Adm'r, 575. 
 Louisville & N. E. Co. v. Shivell's 
 
 Adm'x, 621. 
 Louisville & N. R. Co. v. Wyatt's 
 
 Adm'r, 622. 
 
 Loux V. Loux, 262. 
 
 Love V. Logan, 429. 
 
 Love v. Love, 44, 48, 50, 157. 
 
 Love V. Moynehan, 158. 
 
 Love V. Robertson, 152, 153. 
 
 Love's Estate, In re, 38, 43. 
 
 Lovell V. House of Good Shepherd, 
 
 345. 
 Lovell V. Minot, 432, 433, 435. 
 Lovering v. Lovering, 273. 
 Lovett V. Robinson, 163. 
 Lovewell v. Schoolfield, 186. 
 Loving V. Atlantic Southern R. Co., 
 
 618. 
 Lowe V. Sinklear, 605. 
 Lowe V. Walker, 145. 
 Lowell V. Daniels, 156. 
 Lowery v. Gate, 525. 
 Lown V. Spoon, 514. 
 Lowrie v. Oxendine, 362. 
 Lowry v. Coster, 50. 
 Lowry v. Drake's Heirs, 507. 
 Lowry v. Houston, 134. 
 Lowry v. State, 458. 
 Loy V. Loy, 362. 
 Loyd's Estate, In re, 303. 
 Lozano v. Martinez, 346. 
 Lucas V. Lucas, 231, 253. 
 Lucas V. Parsons, 535. 
 Luce V. Jestrab, 474, 494, 500, 515. 
 Luck V. Luck, 350. 
 Ludlam V. Ludlam, 561. 
 Ludwick V. Com., 268. 
 Luettjohann v. Luettjohann, 250. 
 Lufkin V. Harvey, 324. 
 Lufkin V. Mayall, 516, 517. 
 Luhrs V. Elmer, 562. 
 Luick V. Arends, 116. 
 Lumley v. Gye, 643, 644. 
 Lumley v. Wagner, 599, 600. , 
 Lum Lin Ting, In re, 54, 67, 71. 
 Lumsden, Case of, 490. 
 Lunay v. Vantyne, 315, 316. 
 Lundy, In re, 464, 465. 
 Lunt V. Aubens, 405. 
 Luper V. Luper, 258, 261, 262, 269. 
 Luppie V. Winans, 312, 404. 
 Luse V. Oaks, 101. 
 Lusk V. Lusk, 350, 351. 
 Lusk V. Patterson, 412. 
 Lusk V. Phelps, 611, 621, 634. 
 Lutz's Estate, In re, 309. 
 Lyell V. Walbach, 205. 
 Lyman v. Conkey, 458. 
 Lyman v. Lyman, 12. 
 Lynam v. People, 462. 
 Lynch v. Doran, 538. 
 Lynch v. Knight, 118. 
 Lynch V. Nurdin. 521. 
 Lynch v. Smith, 521. 
 
CASES CITED 
 [The figures reJer to pages] 
 
 705 
 
 Lynde v. Budd, 503. 
 
 Lyndon v. Lyndon, 13, 14. 
 
 Lyon V. Lash, 64. 
 
 Lyon V. Lyon, 10, 242, 250, 253. 
 
 Lyons v. Blenkin, 349. 
 
 Lyons v. New York City E. Co., 110. 
 
 Lyons v. Ryerson, 633. 
 
 Lyons' Estate, In re, 325. 
 
 Lyster v. Lyster, 266. 
 
 Lyttle V. Railway Co., 607. 
 
 M 
 
 Maben v. Maben, 253, 256. 
 McAlister v. Olmstead, 452. 
 McAllister v. Com., 421. 
 McAllister v. Gatlin, 486. 
 McAllister v. McAllister, 260, 275. 
 McAlpine v. Kohler & Chase, 155. 
 McAnally v. Hawkins Lumber Co., 
 
 208. 
 McAndrews v. McAndrews, 266. 
 McAnnnlty v. McAnnulty, 226, 227. 
 Maeauley v. Press Pub. Co., 589. 
 McBee t. McBee, 268. 
 Macbeth-Evans Glass Co. v. Schnel- 
 
 bach, 603. . 
 McBride v. Jerry Madden Shingle 
 
 Co., 652. 
 McBride v. O'Neal, 644. 
 McBride v. Sullivan, 301. 
 McCaddin v. McCaddin, 81. 
 McCafErey v. Benson, 34. 
 McCaig V. State, 32. 
 McCarter v. McCarter, 178. 
 McCarthy v. Boston & L. R. Corp., 
 
 370. 
 McCarthy v. Heiselman, 335. 
 McCarthy v. Marsh, 564. 
 McCarthy v. Railroad Corporation, 
 
 862. 
 McCarthy v. Second Parish, 654. 
 McCartney v. Titsworth, 226. 
 McCartney & Sons' Co. v. Carter, 86. 
 McCarty v. McCarty, 64. 
 McCarty v. Woodstock Iron Co., 511, 
 
 518. 
 McCauley v. Elspd, 601. 
 MeCauley v. Wood, 335. 
 McCauU V. Braham, 600. 
 McCausland, In re, 43, 51. 
 MeCausland's Estate, In re, 40, 44. 
 McCaw V. Blewit, 891. 
 McClain v. Davis, 544, 546. 
 McClain v. McOlain, 28, 271. 
 McClanahan v. McClanahan, 391. 
 MdClanahan v. Williams, 507. 
 McCleary v. Menke, 444. 
 McClellan v. Filson, 188. 
 
 Tmt.P.&D.Rbl.(3d Ed.)— 45 
 
 McClenaghan v. Brock, 648. 
 McClendon v. Harlan, 457. 
 McCline v. Ridley,' 309. 
 McClintic v. McClintic, 126. 
 McCloskey v. Cyphert, 359, 365. 
 McClurg, Appeal of, 77, 262. 
 McClurg v. Terry, 7, 8, 60. 
 McColllgan V. Pennsylvania R. Co., 
 
 573. 
 McCoUister v. Yard, 312. 
 McConkey v. Barnes, 477. 
 McConkey v. Cockey,>-447. 
 MeConnell v. McConnell, 81, 260, 481, 
 McCook County v. Kammoss, 392. 
 MoCord V. Bright, 234. 
 McCord V. McCord, 64. 
 McCorkle v. Goldsmith, 205. 
 McCormic v. Leggett, 492. 
 McCormick v. Demary, 589. 
 McCormick v. Holbrook, 205. 
 McCormick v. Littler, 538, 540, 541. 
 McCormick v. McCormick, 289. 
 McCormick Harvesting Mach. Co. v. 
 
 Zakzewski, 617. 
 McCormlck's Estate, In re, 312, 313. 
 McCosker v. Railroad Co., 625. 
 McCov V. McCoy, 263. 
 McCrady v. Pratt, 332. 
 McCreery v. Davis, 34, 242, 290. 
 McCreery v. Scully, 172. 
 Mi'Creery, Lessee of v. Somerville, 
 
 564. 
 McCreery & Co. v. Martin, 172. 
 McCrillis v. Bartlett, 541, 556. 
 McCrillis v. How, 482. 
 McCrocklin v. McCrocklin, 241. 
 McCubbin v. Patterson, 240. 
 McCue V. Garvey, 182. 
 McCullen v. McCuUen, 82, 57, 58, 59. 
 McCullough V. Finley, 495. 
 McCullough Iron Co. v. Carpenter, 577, 
 
 584. 
 McCune v. Goodwillie, 514. 
 McCurdy v. Canning, 149. 
 McCutchen v. McGahay, 177. 
 McCutchen v. Eoush, 433, 434. 
 McCutcheon v. McGahay, 176. 
 McDaniel v. Jonesboro Trust Co., 160. 
 McDaniel v. Mann, 411. 
 McDaniel v. Whitman, 130. 
 McDaniels v. McClure, 86, 87. 
 McDavid v. Adams, 125. 
 McDeed v. McDeed, 22, 25, 57. 
 McDevitt, In re, 312, 314. 
 McDonald v. California Timber Co., 
 
 607, 622. 
 MacDonald v. MacDonald, 252, 253, 
 
 258. 
 McDonald v. Rozen, 164. 
 
706 
 
 CASES CITED 
 [The figures refer to pageSj 
 
 McDonald v. Smith, 231, 233. 
 McDonald v. Spring Valley, 473. 
 Maodonnell v. Harding, 421. 
 McDonnell v. Oceanic Steam Nav. Co., 
 
 614. 
 McDonnell v. Solomon, 87. 
 McDonough V. Pelham Hod Elevating 
 
 Co., 622. 
 McDow V. Brown, 444. 
 AfcDowell V. Caldwell, 415. 
 McDowell V. McDowell, 160. 
 McDowell V. Charles, 135. 
 McDowle, Case of, 353. 
 McDuff V. Beauchamp, 146, 149. 
 McDuffee v. McDufEee, 280. 
 McDuffee's Adm'x v. Boston & M. R. 
 
 R., 619. 
 McDuffle V. Mclntyre, 440. 
 McElfresh v. Kirkendall, 98, 101. 
 McElhenny, Appeal of, 445. 
 McEIllgott V. Randolph, 626. 
 McElroy, Case of, 18. 
 McEvoy V. Tucker, 539. 
 McFall V. Simmons, 462. 
 McFarland v. Johnson, 205. 
 McParlane y. McFarlane, 289. 
 McFerren, Ex parte, 472, 514. 
 McGahay v. Williams, 177, 260. 
 McGan v. Marshall, 506. 
 McGarr v. National & Providence 
 
 Worsted Mills, 376. 
 McGarvey's Guardian v. McGarvey's 
 
 Adm'r, 326. , 
 
 McGaugh v. Mathis, 61, 63. 
 McGee v. Cordage Co., 626. 
 McGeorge v. Egan, 169. 
 McGifltert v. McGifCert, 248. 
 McGill V. Doming, 245, 287, 289. 
 !lMcGilI V. McGill, 30, 268. ' 
 McGinnis v. Chicago, R. I. & P. Ry. 
 , Co., 656. 
 
 McGovern v. Interurban R. Co., 109. 
 McGrath, In re, 404. 
 McGrath v. Bell, 592. 
 McGr^th V. Fogel, 616. 
 McGrath v. Railroad Co., 618. 
 McGreevey v. Boston Elevated R. Co., 
 
 520. 
 McGregor v. ComstOck, 564. 
 McGregor v. McGregor, 114, 239. 
 McGuire v. Brown, 308. 
 McGuire v. Cook, 194. 
 McGuire v. People, 470, 471. 
 McGurk V. McGurk, 277, 280. 
 Machado v. Bonet, 257. 
 McHarge v. M. M. Newcomer & Co., 
 
 652, 654. 
 McHenry v. Brackin, 68. 
 Mcllvain v. Scheibley, '28. 
 
 Mclnery v. Buffalo & S. R. Corp., 640. 
 
 Macintosh v. Abbott, 590. 
 
 Mclntyre v. People,, 558, 559. 
 
 McTntyre v. Sholty, 546, 547. 
 
 Mclsaac v. Adams, 487. 
 
 Mack V. Brammer, 441. 
 
 Mack V. Handy, 268. 
 
 McKamy v. Cooper, 490. 
 
 McKanna v. Merry, 411, 484, 485, 488. 
 
 McKay v. McKay, 89, 351. 
 
 McKee v. Bevins, 147. 
 
 McKee V. Cunningham, 81, 178. 
 
 AleKee v. Ingalls, 557. 
 
 McKee v. Reynolds, 205. 
 
 McKee V. Thomas, 438. 
 
 JIcKee, Lessee of, v. Pfout, 141. 
 
 McKeever v. Ball, 439. 
 
 McKellar v. Harkins. 309, 317. 
 
 McKelway, In re,. 147. 
 
 McKelway's Estate, In re, 147. 
 
 McKenna v. McKenna, 38, 41. 
 
 McKennan v. Phillips, 241. 
 
 McKillop V. Superior Shipbuilding 
 
 Co., 626. 
 McKim V. McKim, 348, 349. 
 Mackin v. Boston & A. R. R., 627. 
 Mackin v. Detroit-Tinikin Axle Co., 
 
 637. 
 Mackin v. U. S., 269. 
 Mackin^ey v. McGregor, 169. 
 McKinley v. Railroad Co., 650. 
 McKinney v. Clarke, 2, 17. 
 McKinney v. Jones, 430, 439. 
 McKinney v. McKinney, 265. 
 MeKinny v. State, 531. 
 McKnight v. Kingsley, 222. 
 McKnight's Ex'rs v. \^alsh, 331. 
 McLaughlin v. Kemp, 104. 
 McLaughlin v. McLaughlin, 63, 72. 
 McLaughlin's Estate, In re, 39, 41, 65. 
 Maclay v. Love, 212. 
 McLean v. Burginger, 154. 
 McLean v. Jackson, 484. 
 McLean v. Longlands, 231. 
 McLean v. Swanton, 564. 
 McLemore v. Pinkston, 125. 
 McLennan v. McLennan, 70. 
 McLeod v. Board, 215, 216. 
 McLeod V. Poe, 210. 
 McLoskey v. Reld, 442. 
 McLoud V. State, 299. 
 McMahan v. Bangs, 622. 
 McMahiU v. McMahill, 81, 326. 
 McMahon v. Northern Cent. R. Co., 
 '523. 
 McManus v. Crickett, 649. 
 MacMaster v. Fobes, 318. 
 McMillan v. Page, 576, 577. 
 McMillan v. Vanderlip, 604, 
 
CASES CITED 
 [Tlie figures refer to pages] 
 
 707 
 
 McMlUen v. Lee, 323, 324. 
 McMinn v. Rlchmonds, 482. 
 MeMorrow v. Dowell, 362. 
 McMuUan v. Dickinson Co., 598, 599. 
 McMullen v. Blecker, 429. 
 McMullen v. McMuUen, 77. 
 McMurray v. Bodwell, 151. 
 McMurray v. Boyd, 592. 
 McMurtry v. Fairley, 470. 
 McMurtry v, Webster, 184. 
 McMyn, In re, 182. 
 McNabb v. Clipp, 412. 
 McNaghten, Case of, 548, 550. 
 McNair v. Toler, 567. 
 McNamara v. McNamara, 278. 
 McNeal v. McKain, 337. 
 McNeer v. McNeer, 196, 197. 
 McNeil V. Williams, 201. 
 McNemar v. Cohn, 102, 170. 
 McNemar v. McNemar, 315. 
 McPherson v. Day, 464. 
 McPhillips V. RfcPhillips, 453, 
 McQueen v. Fulgham, 101. 
 McRae, In re, 313, 316. 
 McRae v. Battle, 225. 
 McReynolds v. Stoats, 489. 
 Macri v. Macri, 22. 
 McShan V. McShan, 347. 
 McSparran v. Neeley, 556. 
 McSurley v. Venters, 308, 309. 
 McVeigh v. U. S., 567. 
 McWhorter v. Benson, 431. 
 McWilliams, Ex parte, 535. 
 Macy V. Railroad Co., 627. 
 Madalina, Ex parte, 293. 
 Madden's Adm'r v. Railway Co., 630, 
 
 632. 
 Madison County v. Johnston, 4^8. 
 Magahay v. Magahay, 268. 
 Magarahan v. Wright, 584. 
 Mageau v. Great Northern R. Co., 108. 
 Magee v. Holland, 368, 369, 375, 385, 
 
 386. 
 Magee v. Magee, 354, 355. 
 Magee v. Toland, 129. 
 Magee v. Welsh, 486. 
 Magee v. Young, 3. 
 Maggett V. Roberts, 38. 
 Magida v. Wiesen, 603. 
 Magill V. MagiU, 251. 
 Masniac v. Thompson, '219, 221, 222, 
 
 237. 
 Magnuson v. O'Dea, 385. 
 Magone v. Portland Mfg. Co., 614, 617. 
 Magowan v. Magowan, 290. 
 Magrath v. Magrath, 258. 
 Maguinay v. Saudek, 324, 376, 384. 
 Maguire v. Maguire, 3. 
 Mahan y. Clee, 620. 
 
 Maharajah, The, 608. 
 
 Maher v. Benedict, 335, 336. 
 
 Maher's Estate, In re, 48. 
 
 Mahnken t. Mahnken, 253. 
 
 Mahon v. Daly, 596. 
 
 Mahon v. Gormley, 208. 
 
 Mahone v. Mahone, 268. 
 
 Mahoney v. Park Steel Co., 468 
 
 Maier v. Brock, 63, 64. 
 
 Maier v. Waters, 63, 64. 
 
 MalUefer v. Saillot, 70. 
 
 Main v. Main, 105, 243. 
 
 Maiorano v. Baltimore & O. R. Co., 
 
 563. 
 Major V. Holmes, 159. 
 Makarell v. Bachelor, 483. 
 Malaney v. Cameron, 315, 319. 
 Malcolm v. Fuller, 621, 634. 
 Malcom V. FtiUer, 621.- 
 Maiden Hospital v. Murdock, 174. 
 Mali V. Lord, 648. 
 Mallory's Adm'rs v. Mallory's Adm'r, 
 
 226, 227. 
 Mallow V. Eastes, 216. 
 Maloney v. Maloney, 258. 
 Maloney v. People, 307. 
 Manby v. Scott, 176, 177. 
 Manchester v. Smith, 364. 
 Mandel Bros. v. Kingstrom, 84, 85, 86. 
 Mangam v. Peck, 101. 
 Mangam v. Railroad Co., 521. 
 Mann v. McDonald, 419. 
 Mann v. People, 307. 
 Manning v. Boylinson, 470. 
 Manning v. Gannon, 504. 
 Manning v. Johnson, 475, 512. 
 Manning v. Manning, 452, 456. 
 Manning v. Riley, 227. 
 Manning v. Wells, 324, 332. 
 Manny v. Rixford, 229. 
 Manor Nat. Bank v. Lowery, 210, 
 Mansfield v. Gordon, 496. 
 Mansfield v. Neff, 308. 
 Mansfield v. Watson, 536. 
 Mansfield Ry., Light & Power Co. v. 
 
 Barr, 633. 
 Mansfield's Estate, In re, 454. 
 Mansur v. Pratt, 469. 
 Manuel v. Beck, 313. 
 Manvell v. Thomson, 370, 376, 380, 383, 
 
 384. 
 Manwaring v. Powell, 147, 148. 
 Maples V. Wightman, 473. 
 Mapstrick v. Ramge, 603. 
 Maraman's Adm'r v. Maraman, 231. 
 Marble Co. v. Ripley, 599. 
 Marburg v. Cole, 149. 
 March v. Bennett, 435. 
 Mardt V. Scharmach, 146, 234. | 
 
708 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Margetts v. Barringer, 186. 
 
 Marliemeke v. Grotliaus, 417. 
 
 Marion y. Eallroad Co., 650. 
 
 Markel v. De Francesco, 210. 
 
 Markham v. Markham, 598. 
 
 Markinovich v. Northern Pac. R. Co., 
 611. 
 
 Marklewltz v. Olds Motor Works, 613. 
 
 Markover v. Krauss, 312. 
 
 Marks v. Crume, 13. 
 
 Marks v. Loewenberg, 161. 
 
 Marks v. McElroy, 51&. 
 
 Marks V. Marks, 53. 
 
 Marks v. Wooster, 352. 
 
 Marlow v. Barlew, 205, 206. 
 
 Marlow v. Pitfeild, 181, 483. 
 
 Marone v. Marone, 62. 
 
 Marquam v. Domestic Engineering Co., 
 584. . 
 
 Marquardt v. Flaugher, 87. 
 
 Marquette Cement Mfg. Co. v. Wil- 
 liams, 630. 
 
 Marre v. Marre, 13, 31. 
 
 Marris v. Marris, 275. 
 
 Miarsh, Ex parte, 219. 
 
 Marsh v. Chickering, 607, 615. 
 
 Marsh v. Fisher, 151. 
 
 Marsh v. Hand, 651, 652. 
 
 Marsh v. Marsh, 203, 257, 265. 
 
 Marsh v. Whittington, 13. 
 
 Marshak v. Marshak, 218, 260. 
 
 Marshall v. Chicago, K. I. & P. R. Co., 
 614. 
 
 Marshall v. Lane, 146. 
 
 Marshall v. Marshall, 239, 279. 
 
 MarAall v. bakes, 96, 97. 
 
 Marshall v. Reams, 305, 346, 349, 350. 
 
 Marshall v. Rench, 390. 
 
 Marshall v. Rutton, 156, 218. 
 
 Marshall v. Wing, 469. 
 
 Marshall v. Wymond, 337. 
 
 Marshall Field & Co. v. McFarlane, 
 199. 
 
 Marston v. Rue, 155. 
 
 Martin, Ex parte, 313. 
 
 Martin v. Banks, 200. 
 
 Martin v. Caldwell, 451. 
 
 Martin v. CoUison, 224. 
 
 Martin v. Davis, 434. 
 
 Martin v. Dwelly, 165 166, 167. 
 
 Martin v. Foster's Ex'r., 452. 
 
 Martin v. Hunt, 594. 
 
 Martin v. Martin, 28, 129, 229, 230, 244, 
 269. 
 
 Martin v. Payne, 370, 371, 380, 381. 
 
 Martin v. People, 328. 
 
 Martin v. Eobson, 96, 101, 102. 
 
 Martin v. State, 530, 558. 
 
 Martin v. Tobin, 503, 504. 
 Martin v. 'Wabash R. Co., 616. 
 Martin Bros. v. Vertres, 87. 
 Martin's Adm'r v. Fielder, 401. 
 Martin's Heirs v. Martin, 32. 
 Martinez v. Meyers, 434. 
 Martrick v. Linheld, 388. 
 Marts V. Brown, 442. 
 Martz V. Fulhart, 332. 
 Marvin v. Marvin, 14, 15. 
 Marvin v. Schilling, 441. 
 Marx V. McGlynn, 564, 565. 
 Maryland Casualty Co. v. Pillsbury, 
 
 639. 
 Marzette v. Cronk, 50. 
 Mason v. Buchanan, 430. 
 Mason v. McNeill's Ex'rs, 130. 
 Mason V. Morgan, 135. 
 Mason v. Mason, 107, 455. 
 Mason V. Wait, 438, 439. 
 Mason v. Williams, 346, 352, 409. 
 Mason v. Wright, 48?, 518. 
 Massachusetts General Hospital v. 
 
 Fairbanks, 412, 540. 
 Massy y. Rowen, 186. 
 Masten v. Masten, 286. 
 Masterman v. Masterman, 148, 149, 
 
 202. 
 Masterson v. Harris, 315. 
 Masterson v. Howard, 567. 
 Masterson's Estate, In re, 316, 404. 
 Matchin v. Matchin, 248. 
 Mather v. Brokaw, 587, 604. 
 Mathes v. Bennett, 430. 
 Mathew v. Brise, 418. 
 Mathews v. Cowan, 527. 
 Mathewson v. Mathewson, 248, 253, 
 
 279. 
 Mathewson v. Phoenix Iron Foundry, 
 
 3, 43, 44, 46. 
 Mathison v. Minneapolis Street R. Co., 
 
 637, 638. 
 Matney v. Bush, 639. 
 Matre v. Sankey, 320. 
 Mattar v. Wnthen, 172, 173. 
 Matteote's Estate, In re, 49, 241. 
 Matteson V. R. Co., 1^0, 111. 
 Matthes v. Matthes, 22, 23, 62. 
 Matthew v. R. Co., 109. 
 Matthewman, Case of, 189, 191. 
 Matthews v. Baxter, 555, 556. 
 Matthews v. Missouri Pac. R, Op., 372, 
 
 oTo, 
 Matthews v. Park Bros. & Co. 590 
 Matthews v. Terry, 601. ' 
 
 Matthews v. Tiestel, 96. 
 Matthewson v. Perry, 356. 384 
 Matthiessen & Hegel er Zinc Co v In- 
 dustrial Board, 636. 
 
CASES CITED 
 [The figures refer to pages] 
 
 709 
 
 Matthiessen & Weichers Refining Co. 
 
 V. McMahon's Adm'r, 542. 
 Mattingly v. tlom., 464. 
 Mattlngly v. Montgomery, 647. 
 Mattocks T. Stearns, 141, 142. 
 Mattoon v. Cowing, 457, 459. 
 Mattox V. Mattox, 284. 
 Mattson v. Minnesota & N. W. B. Co., 
 
 523. 
 Mauchle v. Panama-Pacific Interna- 
 tional Exposition Co., 647. 
 Mauldin v. Southern Shorthand & 
 
 Business University, 482, 484, 486. 
 Maunder v. Venn, 370, 380. 
 Maupin's Ex'r v. Dulany's Devisees, 
 
 416. 
 Maurer, Appeal of, 188. 
 Maurer v. Rogers, 610. 
 Mauro v. Ritchie, 404, 405. 
 Maxey v. Logan, 148. 
 Maxsom, Lessee of, v. Sawyer, 406. 
 Maxwell, Bx parte, 405. 
 Maxwell v. Boyd, 828. 
 Maxwell v. Jurney, 200. 
 Maxwell v. Maxwell, 251, 391. 
 May V. Calder, 396. 
 May V. Duke, 425. 
 May V. Josias, 172. 
 May V. May, 387, 435, 445, 446. 
 May V. Smith, 84. 
 Mayberry v. Northern Pac. Ry. Co., 
 
 656. 
 Mayer v. Davis, 296, 300. 
 Mayer v. Lithauer, 83. 
 Mayfield v. Clifton, 133. 
 Mayhew v. Mayhew, 250. 
 Mayhew v. Thayer, 176, 180. 
 Maynard v. Hill, 3, 5, 6, 198, 292^, 
 Mayo V. Bank of Gleason, 196. 
 Mays V. State, 328.' 
 Mayton v. Railway Co., 623. 
 Maze's Ex'rs v. Maze, 223, 224. 
 Meade's Estate, In re, 38, 50. 
 Meadows v. Meadows, 391. 
 Meagher v. Harjo, 55. 
 Meaher v. Mitchell, 180. 
 Meakings v. Cromwell, 564. 
 Mears v. Bickford, 355. 
 Mears v. Sinclair, 417. 
 Measham v. McNair, 87. 
 Mechling. v. "Meyers, 469. 
 Medbury v. Watrous, 514, 517. 
 Medrano v. State, 14. 
 Meech v. Stoner, 109. 
 Meehan v. Edward Valve & Mfg. Co., 
 
 52, 53. 
 Meehan's Estate, In re, 63. 
 Meek v. Pacific Electric R. Co., 112. 
 
 Meeks v. Southern Pac. R. Co., 523. 
 Meese v. Fond du Lac, 108, 109, 112. 
 MefCert v. MefCert, 351. 
 Megginson, Estate of, 43. 
 MehrhotC v. Mehrhoff, 118, 120. 
 Meier & Prank Co. v. Bruce, 159. 
 Meier & Prank Co. v. Mitlehner, 86, 
 
 170. 
 Meister v. Moore, 38, 39, 44, 65, 66. 
 Melcher v. Melcher, 39. 
 Meldowney v. Meldowney, 264. 
 Mellanson v. Mellanson, 77. 
 Mellen v. Thomas Wilson Sons & Co., 
 
 626. 
 Mellinger's Adm'r v. Bausman's Trus- 
 tee 197 
 Mellish v." Mellish, 401, 450. 
 Mellor V. Mfg. Co., 619. 
 Mells, In re, 425. 
 Melton V. State, 48. 
 Memphis Steel Const. Co. v. Lister, 
 
 370. 
 Menage v. Jones, 440. 
 Mendelson v. Bronner, 577. 
 Mendes v. Mendes, 451. 
 Mendiola v. Gonzales, 563. 
 Meraman's Heirs v. Caldwell's Heirs, 
 
 141. 
 Mercantile Bxch. Bank v. Taylor, 206. 
 Mercein v. People, 347. 
 Mercer v. Jackson, 361, 375. 
 Mercer v. Walmsley, 370, 371, 379, 
 
 380, 383. 
 Meredith v. Crawford, 518. 
 Merida v. Cummings, 475. 
 Merithew v. Ellis, 360. 
 Merrell v. Moore, 14, 151. 
 Merrell v. Purdy, 199, 205, 207, 213. 
 Merrells v. Phelps, 457. 
 Merriam v. Boston, C. & F. R. Co., 
 
 157. 
 Merriam v. Cunningham, 466, 487, 
 
 488, 490. 
 Merriam v. Merriam, 81. 
 Merriam v. Patrick, 155. 
 Merriam v, Wilkins, 499. 
 Merrick v. Betts, 31. 
 Mertill v. Hussey, 362. 
 Merrill v. Marshall, 90. 
 Merrill v. Moore, 14, 150. 
 Merrill v. Smith, 126. 
 Merrimack County v. Kimball, 536. 
 Merritt v. Cravens, 121. 
 Merrltt v. Scott, 220. 
 Alerritt v. Swimley, 350, 353. 
 Merritt v. V^^allace, 431. 
 Merry v. Bergfeld, 544. 
 Mertens v. Schlemme, 210. 
 Messenger v. Messenger, 851. 
 
710 
 
 CASES CITED 
 [ITie figures refer to pages] 
 
 Messer v. Manufacturers' Light & 
 
 Heat Co., 641. 
 Messer v. Smyth, 199, 206, 207. 
 Metayer v. Grant, 613. 
 Metcalf V. Cook, 188. 
 Meton V. State Industrial Ins. Dept., 
 
 42. 
 iMetropolitan Baiik of St. Louis v. 
 
 Taylor, 188. 
 Metteote's Estate, In re, 49. 
 Mettler v. Snow, 171, 172. 
 Metzinger v. New Orleans Board of 
 
 Trade, 652. 
 Meurin v. Kopplin, 466. 
 Meuschke v. Peck, 173. 
 Mewhirter v. Hatten, 103, 110, 111. 
 Mews V. Mews, 231. 
 Meyer v. Haworth, 157. 
 Meyer v. Kinzer, 153. 
 Meyer v. Ladewig, 609. 
 Meyer v. McCabe, 198. 
 Meyer v. Meyer, 16. 
 Meyers, Ex parte, 462. 
 Meyers v. Albert, 153. 
 Meyers v. Ideal Steain Laundry, 614. 
 Meyers v. Meyers, 31. 
 Michael v. Locke, 434. 
 Michael v. Morey, 219. 
 Michael v. Stanley, 618. 
 Michels, In re, 462. i 
 Michigan Cent. R. Co. v. Coleman, 
 
 108, 109, 615. 
 Michigan Cent. R. Co. v. Dolan, 611. 
 Michigan Cent. R. Co. v. Gilbert, 611. 
 Michigan Cent.' R. Co. v. Vreeland, 
 
 634. 
 Michoud V. Girod, 419. 
 Mickels v. .Fennell, 58. 
 Micou V. McDonald, 205, 209. 
 Middlebury College v. Chandler, 484. 
 Middleton v. Hoge, 499. 
 Middleton v. Middleton, 258. 
 Middleton v. Nichols, 382. 
 Middleton v. Texas Power & Light 
 
 Co., 637. 
 Mighell V. Stone, 382. 
 Milage v. Woodward, 597. 
 Milburne v. Byrne, 643. 
 Miles V. Boyden, 396, 468, 469. 
 Miles V. Chilton, 31. 
 Miles V. Cuthbert, 385. 
 Miles V. Lingerman, 157, 489, 516. 
 Miles V. Williams, 139. 
 Milford V. Worcester, 41. 
 Mill V. Brown, 463, 464. 
 Millar v. Cuddy, 605. 
 Millar v. Millar, 16, 56. 
 Millard v. Hewlett, 518. 
 Miller v. Aram, 133. 
 
 Miller v. Ash, 443, 444. 
 
 Miller V. Blackburn, 129. 
 
 Miller v. Brown, 83. 
 
 Miller v. Craig, 538. 
 
 Miller v. Davis, 324. 
 
 Miller v. Finley, 555. 
 
 Miller v. Goddard, 604. 
 
 Miller v. Harris, 398. 
 
 Miller v. Kelsey, 458. 
 
 Miller v. Keown, 132. 
 
 Miller v. Meche, 335. 
 
 Miller v. Miller, 67, 68, 116, 141, 245, 
 '246, 250, 252, 288, 301, 302, 303, 304, 
 314, 353, 389. 
 
 Miller v. Newton, 188. 
 
 Miller v. Pearce, 114. 
 
 Miller v. Pennington, 301. 
 
 Miller v. Railway Co., 630. 
 
 Miller v. St. Louis & S. F. K. Co., . 
 490. 
 
 Miller v. Sanders, 211. 
 
 Miller v. Shackleford, 141. 
 
 Miller v. Simonds, 389. 
 
 Miller v. Sims, 503. 
 
 Miller v. Smith, 485, 512. 
 
 Miller v. State, 91, 92, 464. 
 
 Miller v. Sweitzer, 98. 
 
 Miller v. Voss, 188. 
 
 Miller v. Wetherby, 202, 208. 
 
 Miller's Estate, In re, 137, 434. 
 
 Miller & Lux, Inc., v. Industrial Acci- 
 dent Commission, 637, 639. 
 
 Minis v., Thayer, 392. 
 
 Mills V. Graham, 524. 
 
 Mills V. State, 464. 
 
 Millsaps V. Estes, 476, 510. 
 
 Milne v. Kane, 154. 
 
 Jlilner v. Harewood, 425. 
 
 Milroy v. Lord, 231. 
 
 Milton V. Setze, 161. 
 
 Mims V. Mims, 248.. 
 
 Miner v. Miner, 349, 351. 
 
 Mines v. Phee, 217, 225. 
 
 Mink V. State, 300. 
 
 Minnehaha County v. Boyce, 536. 
 
 Minnesota Loan & Trust Co. v. Beebe, 
 406. 
 
 Minock v. Shortridge, 476, 503, 515. 
 
 Minors Long, In re, 452. 
 
 Minotto V. Bradley, 566. 
 
 Minter v. Clark, 455, 457. 
 
 Minville, Succession of, 31, 56. 
 
 Misselwitz, In re, 534. 
 
 Missio V. Williams, 103. 
 
 Mississippi Cent. R. Co. v. Hardy, 616. 
 
 Missouri, K. & T. R. Co. v. Hngan, ,608. 
 
 Missouri, K. & T. R. Co. v. Hendricks, 
 622, 631. 
 
CASES CITED 
 [The figures refer to pages] 
 
 Til 
 
 Missouri, K. & T. R. Co. v. Hudson, 
 
 617. 
 Missouri, K. & T. R. Co. v. Wise, 624, 
 
 625. 
 Missouri Paci E. Co. v. Behee, 601. 
 Missouri Pac. R. Co. v. Lasca, 3S6, 430. 
 Missouri Pac. R. Co. v. Palmer, 325. 
 Mitchell, Ex parte, 329. 
 Mitchell, Case of, 490. 
 Mitchell V. Crassweller, 648. 
 Mitchell V. Kingman, 537, 538. 
 Mitchell V. Mitchell, 5, 24, 25, 58, 71. 
 Mitchell V. Otey, 213. 
 Mitchell V. Penny, 444. 
 Mitchell V. Robinson, 629. 
 Mitchell V. Spaulding, 469. 
 Mitchell V. Swanwood Coal Co., 638. 
 Mitchell V. Toale, 586. 
 Mitchell V. Treanor, 174. 
 Mitchell's Distributees v. Mitchell's 
 
 Adm'r, 891. 
 Mitchinson v. Hewson, 97, 184. 
 Mitford V. Mitford, 135. 
 Mittelstadt v. Kelly, 567. 
 Mixer v. Sibley, 567. 
 Mizen v. Pick, 178. 
 Moberg v. Scott, 113. 
 Mobile & M. R. Co. v. Clanton, 602. 
 Moch V. Superior Court, 463. 
 Mock V. Chaney, 42. 
 Mockey v. Grey, 468.' 
 Modisett v. McPike, 113, 115, 118, 
 Mohr V. Manierre, 439. 
 Mohr V. Porter, 439, 440. 
 Mohr V. Tulip, 440, 543. 
 Mohry v. Hoffman, 371. 
 Moir V. Moir, 117. 
 Moley V. Brine, 476. 
 MoUer v. Sommer, 44, 53. 
 Molony v. Kennedy, 129, 187. 
 Molony v. Molony, 89. 
 Molton V. Comroux, 541, 542. 
 Monaghan v. School Dist., 356. 
 Monahan v. Monahan, 127. 
 Monarch Mining & Development Co. v. 
 
 De Voe, 620. 
 Moncrief v. Ely, 306. 
 Mondou V. New York, N. H. & H. R. 
 
 Co., 635. 
 Monell V. Monell, 455. 
 Monget T. Walker, 429. 
 Monk V. Hurlburt, 326. 
 Monnin v. Beroujon, 448. 
 Monroe v. Proctor, 597. 
 Monsen v. Crane, 607. 
 Slontacute v. Maxwell, 226, 228. 
 Montgomery v. Gordon, 467. 
 Montgomery v. Montgomery, 12. 
 Montgomery v. Smith, 405, 454. 
 
 Montmorency v. Montmorency, 291. 
 Moody V. Hagan, 564, 565. 
 Moody V. Manufacturing Co., 628. 
 Moody V. Southern Pac. Co., Ill, 150, 
 
 151. 
 Mooers v. White, 564. 
 Moon V. Towers, 335. 
 Moon's Adm'r v. Railroad Co., 626, 630, 
 
 632. 
 Moor V. Moor, 154. 
 Moore, In re, 805, 899, 434, 444, 446. 
 Moore v. bullock, 110. 
 Moore v. Cornell, 203, 208. 
 Moore v. Grandall, 126, 151, 200. 
 Moore v. Dubblih Cotton Mills, 612, 
 
 616. 
 Moore v. Eastman, 526. 
 Moore v. Flack, 308, 309. 
 Moore v. Graves, 467. 
 Moore v. Hegeman, 67, 72. 
 Moore v. Heineke, 49. 
 Moore v. Hershey, 544. 
 Moore v. Home, 547. 
 Moore v. King Mfg. Co., 629. 
 Moore v.'Xehigh Valley R. Co., 640. 
 Moore V. McBwen, 470. 
 Moore v. Moore, 9, 10, 137. 
 Moore v. Nah-con-be, 55. 
 Moore v. Railroad Co., 620. 
 Moore v. St. LOuis Transit Co., 622. 
 Moore v. Sanborne, 653. 
 Moore v. Saxton, 305, 308. 
 Moore v. Shields, 430. 
 Moore v. Stancel, 152. 
 Moore v. State, 328. 
 Moore v. Whitaker, 61. 
 Moorsom v. Moorsom, 274. 
 Moot V. Moot, 3, 18. 
 Morain v. Devlin, 546. 
 Moran, In re, 812. 
 Moran v. Dawes, 643. 
 Moran v. Mulligan, 618. 
 Moran v. Stewart, 315, 316. 
 Mordecai v. Pearl, 512. 
 Morehouse v. Cooke, 404. 
 Morey v. Webb, 646. 
 Morgan v. Bank, 128. 
 Morgan v. Bridge Co., 521. 
 Morgan v. Johnson, 419. 
 Morgan v. Lones, 154. 
 Morgan v. Martin, 118. 
 Morgan v. Morgan, 21. 
 Morgan v. Shelton, 587. 
 Morgan v. Smith, 622. 
 Morgan v. State, 27. 
 Morgenroth v. Spencer, 176. 
 Morin v. Morin, 351. 
 Moritz V. Garnhart, 376, 385. 
 Morning v. Long, 122. 
 
712 
 
 CASES CITED 
 [The figures refer tp pages] 
 
 Morovick v. Inland Steel Co., 628. 
 
 Moirell V. Morrell, 286. 
 
 Morrill v. Aden, 500. 
 
 Morrill v. Morrill, 351. 
 
 Morrill v. Palmer, 38, 41. 
 
 Morris v. Clay, -538. 
 
 Morris v. Davis, 299. 
 
 Morris v. Hastings, 153, 154. 
 
 Morris v. Martin, 177. 
 
 Morris V. Morris, 253, 260. 
 
 Morris v. Waring, 199. 
 
 Morris v. Warwick, 115. 
 
 Morris v. Z. T. Briggs Photographic 
 
 Supply Co., 585. 
 Morris' Estate, In re, 52. 
 Morrison, In re, 245. 
 Morrison v. Clark, 111. 
 Morrison v. Holt, 180. 
 Morrison v. Kinstra, 420, 423, 438. 
 Morrison v. Morrison, 259, 263, 273, 
 
 274, 282, 283, 286. 
 Morrison v. San Pedro, L. A. & S. L. 
 
 Bi. Co., 612. 
 Morrison v. Sessions' Estate,. 310. 
 Morrow v. Whitesides' Ex'r, 129, 183, 
 
 184. 
 Morse v. Crawford, 546, 
 Morse v. Ely, 512, 513. 
 Morse V. Scott, 553. 
 Morse v. Welton, 334, 359, 363, 387. 
 Morse v. Wheeler, 504, 505. 
 Mortimer v. Mortimer, 239. 
 Mortimore v. Wright, 322, 481. 
 Morton v. Detroit, B. C. & A. E. Co., 
 
 616. 
 Morton v. State, 91, 92. 
 Morton v. Steward, 474, 482. 
 Moses V. Pogartie, 175, 179. 
 Moses V. Stevens, 517. 
 Mosher v. Mosher, 253, 278. 
 Mosley V. Stratton, 169. 
 Moss V. Mosley, 6l7. 
 Moss V. Moss, 12. 
 Moss V. Pacific Railroad, 611. 
 Mosteller, Appeal of, 390. 
 Mott V. Mott, 543. 
 Motte V. Feltgen, 515. 
 Moulton V. Moulton, 256. 
 Mound City Paint & Color Co. v. Con- 
 Ion, 646. 
 Mount V. Tremont Lumber Co., 315. 
 Mountain Timber Co. v. State of 
 
 Washington, 636. 
 Mountfort, Ex parte, 404, 410. 
 Mouser v. Nunn, 451. 
 Mowbry V. Mowbry, 325, 331. 
 Mowry v. Chaney, 111. 
 Moyer, Appeal of, 133. 
 Moyer v. Fletcher, 409, 414. 
 
 Moyers v. Kjnnick, 434. 
 Moyler v. Moyler, 252, 253. 
 Moynihan v. Hills Co., 626. 
 Mueller v. Kuhn, 87. 
 Mulford V. Beveridge, 439. 
 Mulhern v. McDavitt, 414. 
 Mullan V. Steamship Co., 629. 
 Mullen v. Little, 639. 
 Mullen v. Manhattan R. Co., 466. 
 MuUer v. Muller, 262. 
 Multer v. Knibbs, 116, 117. 
 Mulvehall v. Millward, 370, 371, 381. 
 
 383. 
 Mulvey V. State, 90. 
 Mumford v. Rood, 414, 432. 
 Mundell v. Coster, 22. 
 Munden v. Harris, 524, 525. 
 Munnerlyn v. Munnerlyn, 141. 
 Munsey v. Goodwin, 357. 
 Munson v. Washband, 487. 
 Murchison v. Green, 62, 64. 
 Murchison v. Murchison, 278. 
 Murd'ock v. Murdock, 223, 224, 225. 
 Murdy v. Styles, 87. ' 
 Murph v. McCuUough, 426, 431. 
 Murphy, Ex parte, 347. 
 Murphy, In re, 353. 
 Murphy v. Cady, 457. 
 Murphy V. Grand Rapids Veneer 
 
 Works, 617. 
 Murphy v. Murphv, 390, 391. 
 Murphy v. Old Colony St. R. Co., 613, 
 
 616. 
 Murphy v. Ottenheimer, 332. 
 Murphy y. Railway Co., 608. 
 Murphy v. Superior Court, 456. 
 Murphy v. Walker, 434. 
 Murray v. Feinour, 433. 
 Jlurray v. Thompson, 476. 
 Murray v. Wood, 458. 
 Muse v. Stern, 651. 
 Musgi'ave v. Conover, 439. 
 Musgrove v. Kornegay, 356. 
 Musselman v. Galligher, 103. 
 Mussey v. Pierre, 564. 
 Musson V. Trigg, 186, 190, 191, 192, 
 
 194, 195. 
 Mustard v. Wohlford's Heirs, 474, 
 
 475, 489, 505, 508, 510, 512,. 515, 516. 
 Mutter V. Mutter, 271. 
 Mutual Ben. Life Ins. Co. v. Hillyard, 
 
 667, 568. 
 Mutual Life Ins. Co. v. Hunt, 541. 
 Mutual Life Ins. Co. of New York v. 
 
 Wiswell, 535. 
 Myers v. Knabe, 542. 
 Myers v. McGavock, 438, 439, 440. 
 Myers V. Myers, 273, 331. 
 Myers v. Wade, 415. 
 Mytton V. Mytton, 251. 
 
GASES CITED 
 [The figures refer to pages] 
 
 713 
 
 N 
 
 Nadau v. Lumber Co., 610. 
 
 Nadel v. Weber Bros. Shoe Co., 207. 
 
 Nadra v. Nadra, 56. 
 
 Nagel V. Nagel, 283. 
 
 Nagel V. Railroad Co., 522. 
 
 Naill V. Maurer, 217. 
 
 Nairn v. Prowse, 219. 
 
 Naler v. Ballew, 146, 148. 
 
 Nance V. Nance, 221, 433, 435. 
 
 Napier v. Church, 31. 
 
 Nash V. Jewett, 528. 
 
 Nash V. Nash, 135. 
 
 Nashua & L. R. Corp. v. Paige, 583. 
 
 NashviUe C. & St. L. Ry. v. Kallock, 
 628. 
 
 Nashville, C. & St. L. R. Co. v. Whe- 
 less, 628. 
 
 Nashville Lumber Co. v. Barefleld, 
 430, 440. 
 
 Nashville & C. K. Co. v. Stames, 651. 
 
 Natchez, J. & C..B. Co. v. Cook, 376, 
 377. 
 
 Nathan y. Morgenthau, 172, 175. 
 
 National Drainage Co. v. Bell, 614. 
 
 National Enameling & Stamping Co. 
 V. Padgett, 610, 638. 
 
 National Fire Proofing Co. v. An- 
 drews, 619, 624. 
 
 National Metal Edge Box Co.- v. Van- 
 derveer, 541. 
 
 National Surety Co. v. State, 444, 
 447. 
 
 Naugle V. State, 457. 
 
 Naylor v. Field, 202, 203, 208. 
 
 Neal V. Bartleson, 407. 
 
 Neal V. Gillett, 524. 
 
 Neal V. Neal, 388. 
 
 Neal v. Northern Pac. R. Co., 631. 
 
 Neal v. State, 340, 342, 343, 530. 
 
 Nebo Coal Co. v. Barnett, 622. 
 
 Needham v. Bremmer, 177. 
 
 Needles v. Needles, 131, 132, 133. . 
 
 Neel's Ex'r v. Noland's Heirs, 134. 
 
 Neely's Appeal, 225. 
 
 Neff V. Landis, 527. 
 
 Neft V. Neff, 266. 
 
 Nehring v. Nehring, 68. 
 
 Neil, Appeal of, 308. ' 
 
 Neil V. Idaho & W. N. B. Co., 634. 
 
 Neill V. Neill, 457. 
 
 Nekoosa-Edwards Paper Co. v. Indus- 
 trial Commission, 642. 
 
 Nelichka v. Esterly, 604. 
 
 Nelson, In re, 454, 535. 
 
 Nelson v. Brown, 2. 
 
 Nelson v. Carlson, 52. 
 
 Nelson v. Cowling, 443, 
 
 Nelson V. Green, 403. 
 
 Nelson v. Jones, 295. 
 
 Nelson v. Nelson, 202. 
 
 Nelson v. State, 49. 
 
 Nesmith v. Piatt, 219, 224, 225. 
 
 Netherland-American Steam Nav. Co. 
 
 V. Hollander, 372, 374. 
 Neudecker v. Leister, 128. 
 Neves v. Scott, 220. 
 Neville V. Cheshire, 186, 195. 
 Neville v. Chicago & A. R. Co., 649. 
 New V. New, 891. 
 New V. Southern R. Co., 369. 
 Newbery v. Wilkinson, 457. 
 New Castle Bridge Co. v. Steele, 608. 
 Newell V. Fisher, 555. 
 New England Telephone & Telegraph 
 
 Co: V. Butler, 625. 
 New Hampshire Mut. Fire Ins. Co. v. 
 
 Noyes, 487. 
 New Jersey Title Guaranty & Trust 
 
 Co. V. Parker, 215. 
 Newkirk v. New York & H. R. Co., 587. 
 Newlands v. Paynter, 129, 187. 
 Newlin's Estate, In re, 57. 
 Newman v. Kimbrough, 69. 
 Newman v. Newman, 150, 155. 
 Newman v. Reagan, 605. 
 Newman's Case, In re, 176, 178. 
 New 'Orleans, J. & G. N. R. Co. v. Har- 
 rison, 623, 649, 650. 
 New Orleans, St. L. & C. R. Co. v. 
 
 Burke, 650. 
 Newport v. Cook, 830, 410, 415. 
 Newport News & M. Val. Co. v. Dent- 
 
 zel's Adm'r, 630. 
 Newsome v. Newsome, 278. 
 Newton v. Cooper, 356. 
 Newton v. Evers, 544. 
 Newton v. Hatter, 108. 
 Newton v. New York Cent. & H. R. R. 
 
 Co., 606, 608, 616. 
 New York Building Loan Banking Co. 
 
 V. Fisher, 466, 490. 
 New York Building Loan & Banking 
 
 Co. V. Fisher, 466. 
 New York Cent. R. Co. v. White, 636. 
 New York, C. & St. L. R. Co. v. Schaf- 
 
 fer, 601. 
 New York Life Ins. Co. v. Thomas, 
 
 581. 
 Niagra Fire Ins. Co. v. Whlttaker, 583. 
 Niccol's Estate, In re, 153. 
 Nichols V. Bryden, 438. 
 Nichols V. Nichols, 248. 
 Nicholson, Appeal of, 454. 
 Nicholson v. Nicholson, 14. 
 Nicholson v. Patchin, 577. 
 
714 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Nicholson V. Spencer, 411, 484, 485. 
 Nicholson v. Wilborn, 451, 470, 477, 
 
 486. 
 Nickals, In re, 442. 
 Nickerson, Case of, 641, 642. 
 NicUerson v. Harriman, 377. 
 Nickerson v. Hoover, 316. 
 Nickerson v. Nickerson, 105. 
 Nickleson v. Stryker, 383. 
 Nicrosi v. Phillippi, 566. 
 Nightingale v. Wlthington, 356, 35&, 
 
 362, 476, 496. 
 Niles V. Hall, 196. 
 Nilson V. Morse, 586. 
 Nine V. Starr, 306. 
 Nixon V. Lead Co., 626. 
 Nixon V. Ludham, 112. 
 Nixon V. Spencer, 362. 
 N. K. Fairbanks Co. v. Industrial Com- 
 mission, 640. 
 Noel V. Ewing, 2, 3. 
 Noel V. Fitzpatrick, 234. 
 Noel V. O'Neill, 172. 
 Noel V. Quincy, O. & K. O. R. Co., 607. 
 Nogees v. Nogees, 278. 
 Noice V. Brown, 385. 
 Nolasco V. Lurty, 308. 
 Nolin V. Pearson, 119. 
 Nones v. Homer, 579. 
 Nonnemacher v. Nonnemacher, 19. 
 Norcross v. Norcross, 41, 49. 
 Nord Deutscher Ins. Co. of Hamburg, 
 
 Germany, v. John L. Dudley, Jr., Co., 
 
 567. 
 Nordholt v. Nordholt, 478. 
 Norfolk V. S. R. Co. v. King, 617, 634. 
 Norfolk & W. R. Co. v. Gesswine, 618. 
 Norfolk & W. R. Co. v. Hoover, 628. 
 Norman v. Norman, 40, 71. 
 Norman v. Southern R. Co., 611, 614. 
 Norman v. Virginia-Pocahontas Coal 
 
 Co., 615. 
 Normile v. Wheeling Traction Co., 109. 
 Norris v. Beyea, 197. 
 Norris v. Corkill, 103. 
 Norris v. Harris, 398. 
 Norris v. Kohler, 651. 
 Norris v. Lantz, 157. 
 Norris v. Vance, 491, 504. 
 North American Coal & Coke Co. v. 
 
 O'Neal, 515. 
 North Chicago City R. Co. v. Gastka, 
 
 650. 
 Northern v. Scruggs, 466. 
 Northern Alabama R. Co. v. Harper, 
 
 634. 
 Northern Cent. R. Co. v. Husson, 608. 
 Northern Pac. R. Co. v. Herbert, 616, 
 
 626, 627j 
 
 Northfleld v. Plymouth, 38, 41. 
 
 North Pac. S. S. Co. v. Industrial Ac- 
 cident Commission, 641. 
 
 North Platte Milling & Elevator Co. v. 
 Price, 228. 
 
 Northwall Co. v. Osgood, 205. 
 
 Northvi^estern Mutual Fire Ins. Co. v. 
 Blakenship, 541. 
 
 Northwestern R. Co. v. McMichael, 
 489. 
 
 Norton V. Cowell, 584. 
 
 Norton v. Fazan, 177. 
 
 Norton v. Norton, 29. 
 
 Norton v. Seton, 29. 
 
 Norton v. Strong, 451. 
 
 Norton v. Wkrner, 121. 
 
 Norwood V. Francis, 163, 164. 
 
 Nowell V. Wl'ight, 656. 
 
 Noxon V. Remington, 118. 
 
 Noyes V. Noyes, 275. 
 
 Nuding V. Urich, 126, 127, 200. 
 
 Nugent V. Brooklyn Heights R. Co., 
 521. . 
 
 Nugent V. Vetzera, 442. 
 
 Nulhneyer v. Nullmeyer, 280. 
 
 Nunn V. Robertson, 407, 469, 
 
 Nurse v. Craig, 178, 217. 
 
 Nyman v. Lynde, 367. 
 
 o 
 
 Oakes V. Oakes, 152. 
 
 Oakes v. West, 199. 
 
 Oatman v. Watrous, 175. 
 
 Oberlin v. Upson, 379. 
 
 Obermayer v. Greenleaf, 217. 
 
 Oborn v. State, 549, 551. 
 
 O'Brien v. Galley-Stockton Shoe Co., 
 
 85, 327. 
 O'Brien v. McSherry, 198. 
 O'Brien v. Rideout, 634. 
 Ochoa V. Edwards, 152. 
 O'Connell's Guardianship, In re, 398. 
 O'Daily V. Morris, 205. 
 O'Dea V. O'Dea, 290. 
 Odenbreit v. Utheim, 315, 819. 
 Odeneal v. Henry, 593, 597. 
 Odom V. Bush, 583, 584. 
 Odom V. Odom, 278, 281. 
 Odom V. Riddick, 546. 
 O'Donohue v. Smith, 488, 492. 
 Oesau V. Oesau's Estate, 216. 
 O'Farrell v. O'Farrell, 152. 
 O'Farrell v. Vickrage, 210. 
 Officer V. Swlndiehurst, 389. 
 Offleld V. Davis, 38, 41. 
 Offley V. Clay, 125. 
 Ogden V. Ogden, 68, 226. 
 Ogden V. Prentice, 171. 
 Ogden V. State, 464. 
 
CASES CITED 
 [The figures refer to pages] 
 
 715 
 
 Ogilvie V. Ogilvie, 258. 
 
 O'Hara v. McConnell, 470. 
 
 Ohchoa V. Edwards, 154. 
 
 Ohio Valley Tie Co. v. Hayes, 468. 
 
 Ohrns v. Woodward, 403. 
 
 OUschlager's Estate v. Widmer, 62, 68. 
 
 Oinson v. Heritage, 176, 177. 
 
 O'Kane v. O'Kane, 268. 
 
 O'Keef e v. Casey, 452. 
 
 O'Keefe v. Thorn, 617. 
 
 Oklahoma Land Co. v. Thomas, 55. 
 
 Olcott V. Maclean, 562. 
 
 Oldfleld V. New York & H. R. Co., 377. 
 
 O'Leary v. Brooks Elevator Co., 524, 
 
 525. 
 Oliver, Succession of, 405. 
 Oliver v. Oliver, 251,' 253, 351. 
 Oliver v. Wright, 146, 148. 
 Olmstead v. Bach, 598, 599. 
 Olmstead v. Beale, 604.' 
 Olmsted v. Olmsted, 290, 301. 
 Olson V. Great Northern R. Co., 609. 
 Olson V. Olson, 254. 
 Olson V. Railway Co., 628. 
 Olson V. Seldovia Salmon Co., 620. 
 Olson V. Springer, 155. 
 Omaha Water Co. v. Schmal, 313. 
 O'Malley v. O'Malley, 48, 49, SO. 
 Oneida County Sav. Bank v. Saunders, 
 
 515. 
 O'Neil v. Cardina, 86. 
 O'Neal v. Karr, 612. ( 
 
 O'Neil's Guardian, In re, 453. 
 Oneonta Grocery Co. v. Preston, 509. 
 Ongaro v. Twohy, 624. 
 Oolitic Stone Co. v. Ridge, 619. 
 Orchard v. Wright-Dalton-Bell-Anchor 
 
 Store Co., 502. 
 Ordinary v. Dean, 430. 
 Ordinary v. Heishon, 458. 
 Ordway v. Bright, 187. 
 Ordway v. Phelps, 451. 
 Ormsby v. Rhoades, 577. 
 Oropa, The, 567. 
 Orr V. Brown, 576. 
 Orr V. Hodgson, 564. 
 Orr- V. Wahlfeld Mfg. Co., 354; 
 Orr & Rolfe Co. v. Merrill, 160. 
 Orthwein v. Thomas, 296. 
 Ortley v. Ross, 55. 
 Ortwein v. Com., 549. 
 Oshorn v. Allen, 356. 
 Osborn v. Cooper, 234. 
 Osbom V. Gillett, 377. 
 Osborn v. Nelson, 158. 
 Osborne v. McDonald, 308. 
 Osborne v. Morgan, 656. 
 Osborne v. Railroad Co., 623. 
 Osborne v. Ramsey, 49. 
 
 Osburn v. Throckmorton, 234. 
 
 Ostrander v. Quln, 466. 
 
 Oswald V. Jones, 211. 
 
 Otis, In re, 436. 
 
 Otis V. Hall, 414. 
 
 Ottaway v. Hamilton, 180. 
 
 Otte V. Becton, 831. 
 
 Otto V. Long, 150. 
 
 Otto V. Matthie, 87. 
 
 Otto V. Schlapkahl, 396. 
 
 Otto F. Stifel's Union Brewing Co. v. 
 Saxy, 128, 147, 148. 
 
 Otway V. Otway, 282, 283. 
 
 Outcalt V. Van Winkle, 135. 
 
 Outlaw V. Outlaw, 252. 
 
 Overland Cotton^ Mill Co. v. People 
 462. 
 
 Overseers of Poor of Town of New- 
 bury V. Overseers of Poor of Town 
 of Brunswick, 38, 44. 
 
 Overseers of Washington Tp. t. Over- 
 seers of Beaver Tp., 393. 
 
 Overton v. Banister, 528. 
 
 Overton v. Beavers, 411, 450. 
 
 Overton v. Overton, 309. 
 
 Overton v. State, 93. 
 
 Ovitt v. Smith, 35. 
 
 Owen V. CofCey, 24, 25, 58. 
 
 Owen V. Frink, 587. 
 
 Owen V. Long, 475, 504. 
 
 Owen V. Peebles, 431. 
 
 Owen V. White, 324, 333. 
 
 Owens V. Dickenson, 190. 
 
 Owens V. Gunther, 469. 
 
 Owens V. Johnson, 190, 191, 192. 
 
 Ov/ens V. Pearce, 415. 
 
 Owens .V. Snodgrass, 99. 
 
 O. W. Schultz Lumber Co. v. Robin- 
 son, 210. 
 
 Oxford V. Peter, 649. • 
 
 OzogSar v. Pierce, Butler & Pierce Mfg. 
 Co., 625. 
 
 O. & W. Thum Co. v. Tloczvnski, 603. 
 
 P. V. S., 30. 
 
 Pace V. Appanoose County, 640. 
 
 Pace V. Cawood, 491. 
 
 Pack V. Mayor, 652. ■ 
 
 Paddock v. Wells, 27. 
 
 Pagan v. Southern R. .Co., 607, 608, 
 
 609, 621, 625, 630. 
 Page V. Hodgdon, 404. 
 Page V. Morse, 475. 
 Page V. Page, 278. 
 Page V. Truf ant, 240. 
 Pain. V. Pain, 33. 
 Paine v. Hill, 586. 
 
716 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Pair V. Pair, 309. 
 
 Palet V. Aldecoa Co., 396. 
 
 Palliser v. Gurney, 162. 
 
 Palm V. Ivorson, 335. 
 
 Palmer v. Abrahams, 438. 
 
 Palmer v. Baum, 3tO, 375, 383. 
 
 Palmer v. Oheseboro, 436. 
 
 Palmer v. Crook, 115. 
 
 Palmer v. Miller, 489, 506, 515. 
 
 Palmer v. Oakley, 405. 
 
 Palmer v. Palmer, 248, 253, 260. 
 
 Palmer v. Wakefield, 96. 
 
 Palmer Window Glass Co., In re, 564. 
 
 Pancoast v. Burnell, 103. 
 
 Pancoast v. Pancoast, 150. 
 
 Pannill's Adm'r v. Calloway's Commit- 
 tee, 407. 
 
 Pantzar v. Mining Co., 629. 
 
 Paramour v.iTardley, 502. 
 
 Parent v. Callerand, 202. 
 
 Park V. Barron, 35. 
 
 Park Bros. Co. v. Bushnell, 590. 
 
 Parker, Appeal of, 28, 66. 
 
 Parker v. Brooke, 186. 
 
 Parker v. Davis, 543. 
 
 Parker v. De Bemardi, 44, 51, 53. 
 
 Parker v. Ibbetson, 583. 
 
 Parker v. Joslin Dry Goods Co., 84. 
 
 Parker v. Kane, 205. 
 
 Parker' v. Lechmere, 133. 
 
 Parker v. Lewis, 400, 404. 
 
 Parker v. Meek, 370, 378, 380, 383, 
 384. 
 
 Parker v. Monteith, 382. 
 
 Parker v. Newman, 119. 
 
 Parker v. Parker, 18, 19, 258. 
 
 Parker v. Kicks, 466. 
 
 Parker v. Steed, 184. 
 
 Parker v. Way, 300. 
 
 Parker v. Wiggins, 345, 346, 353. 
 
 Parker v. Wilson, 335, 457, 575. 
 
 Parkes v. Seasongood, 652. 
 
 Parkhurst v. Johnson, 613. 
 
 Parmelee v. Smith, 387. 
 
 Parnell v. Parnell, 19. 
 
 Parrish v. Treadway, 475, 489, 495, 
 507. 
 
 Parry Mfg. Co. T. Eaton, 624. 
 
 Parsee Merchant, Case of, 536. 
 
 Parsley's Adm^r v. Martin, 421, 422. 
 
 Parsons v. Keys, 481. 
 
 Parsons v. Parsons, 135, 136, 137, 139, 
 313. 
 
 Parsons v. State, 550. 
 
 Parsons v. ^Teller, 502, 504. 
 
 Parsons v. Winchell, 656. 
 
 Parton v. Hervey, 21, 22, 23, 38, 39. 
 
 Partridge v. Arnold, 359, 365. 
 
 Partridge v. Stocker, 162, 163. 
 
 Paskewie v. East, 387. 
 
 Paslick V. Shay, 407. 
 
 Passenger R. Co. v. Young, 649, 650. 
 
 Patelski v. Snyder, 112. 
 
 Pater v. Superior Steel Co., 636. 
 
 Patterson v. Booth, 423. 
 
 Patterson v. Gage, 687. 
 
 Patterson v. Gaines, 34, 37, 56, 57, 
 29«. 
 
 Patterson v. Kasper, 493, 527. 
 
 Patterson v. Kates, 648. 
 
 Patterson v. Melchior, 430. 
 
 Patterson v. Nutter, 340, 342. 
 
 Patterson v. Patt^son, 199, 265, 348. 
 
 Patterson v. Pullman, 469. 
 
 Patterson v. Thompson, 383. 
 
 Patterson's Estate, In re, 51, 53. 
 
 Pattison v. Gulf Bag Co., 367. 
 
 Pattison v. Jones, 601. 
 
 Patton V. Philadelphia & New Or- 
 leans, 44. 
 
 Patton V. Thompson, 413. 
 
 Patton's Ex'r v. Smith, 200. 
 
 Paty V. Smith, 438. 
 
 Paul V. Davis, 315. 
 
 Paul v. Frazier, 379. 
 
 Paul V. Hummel, 335, 337. 
 
 Paul V. Smith, 487. 
 
 Paulin V. Howser, 335. 
 
 Pavlovski v. Thornton, 109. 
 
 Paxtin V. Paxton, 325. 
 
 Payne v. Payne, 205, 264, 271. , 
 
 Payne v. Stone, 435. 
 
 Payne v. Williams, 116, 117. 
 
 Peacock v. Coltrane, 597. 
 
 Peacock v. Oummings, 583. 
 
 Peacock's Trusts, In re, 187. 
 
 Peak V. Lemon, 103. 
 
 Pearce v. Pearee, 53. 
 
 Pearll v. Pearll Advertising Co., 127. 
 
 Pearman v. Pearman, 80. 
 
 Pearsall v. New York Cent. & H. B. 
 Co., 612. 
 
 Pearson, Case of, 559. 
 
 Pearson v. Cox, 654. 
 
 Pearson v. Darrington, 175, 178, 179, 
 180. 
 
 Pearson v. Pearson, 81, 83. 
 
 Pearson v. White & Cochran, 478, 
 486. 
 
 Pease v. Pease, 283, 284. ' 
 
 Pease v. Roberts, 454. 
 
 Peaslee v. Peaslee, 224. 
 
 Peaslee v. Robbins, 538. 
 
 Pecararo v. Pecararo, 507. 
 
 Peck y. Braman, 456. 
 
 Peck V. Peck, 45, 48, 49, 52, 53, 216. 
 
 Pecos & N. T. R. Co. v. Blasengame, 
 370. 
 
CASES CITED 
 [Tie figures refer to pages] 
 
 717 
 
 Pedan v. Robb's Adm'r, 416, 417. 
 
 Pederson v. Cbristofferson, 303, 309. 
 
 Pedrick v. Kuemmell, 234.' 
 
 Pedro V. Pedro, 494. 
 
 Peel V. MeCartby, 451. 
 
 Peerless Pacific Co. v. Burckhard, 72. 
 
 Peese v. Gellerman, 845. 
 
 Pegg V. Pegg, 42. 
 
 Pellage v. Pellage, 390. , 
 
 Pelzer v. Campbell, 193. 
 
 PendreU v. Pendrell, 296, 298. 
 
 Penfield v. Savage, 411. 
 
 Penn v. Penn, 351. 
 
 Penn v. Whitehead, 162, 188, 360. 
 
 Pennegar v. State, 69, 71, 72. 
 
 Pennington v. L'Hommedieu, 401. 
 
 Pennsylvania v. Ravenel, 88. 
 
 Pennsylvania Co. v. Dolan, 575, 579. 
 
 Pennsylvania Co. v. Lilly, 377. 
 
 Pennsylvania Co. v. Lynch, 607. 
 
 Pennsylvania Co. v. Purvis, 510. 
 
 Pennsylvania R. Co. v. Goodman, 111, 
 
 112. 
 Pennsylvania R. Co. v. Hartell, 611, 
 
 613, 629. 
 Penrose v. Curren, 527. 
 People V. Adams, 45, 49. 
 People V. Baker, 290. 
 People V. Booth, 32. 
 People V. Brooks, 450. 
 People V. Bffck, 453. 
 People V. Byron, 451. 
 People V. Calder, 62. 
 People V. Case, 2, 5, 242, 276, 297, 
 
 300. 
 People V. Chamberlain, 306, 328. 
 People V. Chapman, 94, 248. 
 People V. Chicago, 574. 
 People V. Conklin, 569. 
 People V. Connell, 329. 
 People V. DaweU, 33, 288. 
 People V. Domenico, 530. 
 People V. Eggleston, 558. 
 People V. Ewer, 462. 
 People V. Finley, 550, 551. 
 People V. Fitzgerald, 329. 
 People V. Forester, 329. 
 People V. Foy, 551. 
 People V. Garbutt, 557. 
 People V. Ham, 24, 25, 39, 58. 
 People V. Hammill, 558. 
 People V. Harty, 307. 
 People V. Insurance Co., 594. 
 People V. Koerner, 558. 
 People V. Landt, 306. 
 People V. Lochner, 575. 
 People V. Loomis, 462. 
 People V. McLeod, 562. 
 People V. Mercein, 240, 352. 
 
 People V. Miller, 90. 
 
 People V. Moores, 478, 479, 481. 
 
 People V. Mortimer, 551. 
 
 People V. MuUin, 478. " 
 
 People V. Olmstead, 343, 345. 
 
 People V. Overseers of Poor of Town 
 of Ontario, 300. 
 
 People v. Pierson, 462. 
 
 People V. Pine, 550. 
 
 People V. Porter, 347. 
 
 People V. Randolph, 531. 
 
 People V. Rogers, 557, 559. 
 
 People V. Schlott, 329. 
 
 People V. Schmidt, 551. 
 
 People V. Schuyler, 93. 
 
 People V. Seelye, 457. 
 
 People V. Shaw, 51. 
 
 People V. Siems, 68, 70. 
 
 People V. Sinclair, 345, 349. 
 
 People V. Slack, 24, 25, 57. 
 
 People V. Smith, 574. 
 
 People V. Souleotes, 24. 
 
 People V. Spencer, 46, 48. 
 
 People V. Steere, 70. 
 
 People V. Sullivan, 313. 
 
 People V. Taylor, 462, 550. 
 
 People V. Todd, 531. 
 
 People V. TownSend, 529. 
 
 People V. Trank, 462. 
 
 People V. Turja, 464. 
 
 People V. Walker, 557, 559. 
 
 People V. Wethel, 311. 
 
 People V. Wilcox, 344, 400, 404, 407, 
 409. 
 
 People V. Willard, 550. 
 
 People V. WHUams, 575. 
 
 People V. Winaters, 80. 
 
 People V. Woodby, 36. 
 
 People V. Woodley, 72. 
 
 People V. Woodson, 296, 297. 
 
 People V. Wright, 91, 92. 
 
 People ex rel. Beaudoin v. Beaudoin, 
 
 • 345. 
 
 People ex rel. Catlin v. Catliii, 291. 
 
 People ex rel. Levine v. Shea, 243, 
 244. 
 
 People ex rel. New York Juvenile 
 Asylum v. Board of Sup'rs of Nas- 
 sau County, 464. 
 
 People ex rel. Sinclair v. Sinclair, 
 348. 
 
 People ex rel. Snell v. Snell, 345. 
 
 People's Home Telephone Co. v. Cock- 
 rum, 111. 
 
 People's Trust Co. v. Merrill, 161, 
 207. 
 
 Peoria, D. & B. R. Co. v. 'Rice, 632. 
 
 Pepin's Estate, In re, 316. 
 
 Pepper v. Stone, 418, 451. 
 
718 
 
 CASES CITED, 
 [Tbe figures refer to pages] 
 
 Pepper's Estate, In re, 153. 
 
 Percy v. Cockrill, 197. 
 
 Peretti v. Peretti, 260. 
 
 Ferine v. Grand? Lodge, 429. 
 
 Perkins v. Blethen, 75, 160. 
 
 Perlcins v. Dyer, 441. 
 
 Perkins v. Elliott, 212. 
 
 Perkins v. Finnegan, 454. 
 
 Perkins v. Middleton, 502. 
 
 Perkins v. Morgan, 86, 180, 
 
 Perkins v. Perkins, 290. 
 
 Perkins v. U. S., 549, 558. 
 
 Perrin v. Wilson, 486. 
 
 Perry v. Blumenthal, 126, 200. 
 
 Perry v. Carmiehael, 386, 396. 
 
 Perry v. Michigan Alkali Co., 619. 
 
 Perry v. Pearson, 538. 
 
 i'erry v-. Perry, 58, 59, 60, 80. 
 
 Perry v. Tozer, 615. 
 
 Perryclear v. Jacobs, 136. 
 
 Person v. Chase, 518. 
 
 Pertreis v. Tondear, 59. 
 
 Peru Basket Co. v. Kuntz, 642. 
 
 Peschel v. Railway Co., 629. 
 
 Peter Adams Paper Co. v. Cassard, 
 205. 
 
 Peters v. Fleming, 484, 485, 
 
 Peters v. Peters, 105, 106. 
 
 Peters v. Scoble, 330. 
 
 Peterson v. Drew, 596. 
 
 Peterson ,v. Haffner, 524. 
 
 Peterson v. J^aik, , 506. 
 
 Peterson v. Mining Co., 629. 
 
 Peterson v. Widule, 30. 
 
 Peterson's Estate, In re, 314. 
 
 Petit V. Petit, 70. 
 
 Petras v. Petras, 67. 
 
 Petre v. Petre, 489. 
 
 Petrie v. Williams, 512, 514. 
 
 Pettee v. Pettee, 275. 
 
 Pettis V. Pettis, 290, 291. 
 
 Pettit V. Atlantic Coast Line R. Co., 
 462. 
 
 Pettit V. Pettit, 32, 34, 240. 
 
 Pettus V. Dawson, 307. 
 
 Pettus V. Sutton, 431. 
 
 Petty V. Anderson, 163. 
 
 Petty V. Roberts, 492. 504. 
 
 Peugnet v. Phelps, 59. 
 
 Pevehouse v. Adams, 389, 419. 
 
 Pfannebecker v. Pfannebecker, 259. 
 
 Phelin v. Kenderdine, 382. 
 
 Phelps V. Phelps, 133, 280. 
 
 Phelps V. State, 329. 
 
 Phelps V. Worcester, 487. 
 
 Philadelphia, B. & W. R. Co. v. Schu- 
 bert, 635. 
 
 Philadelphia Trust, Safe & Deposit 
 Ins. Co. V. Allison, 556. 
 
 Philadelphia, W. & B. R. Co. v. Lar- 
 
 kin, 650. 
 Philadelphia & Reading Coal & Iron 
 
 Co. V. Oravage, 634. 
 Phil Hollenbach Co. v. HoUenbach, 
 
 639. 
 Phil HoUenbeck Co. v. Hollenbach, 
 
 635. 
 Philips V. Hatch, 567. 
 Phillips V. Allen, 296. 
 Phillips V. Bamet, 105, 229. 
 Phillips V. Corbin & Fannin, 616. 
 Phillii)s V. Davis, 409, 415. 
 Phillips V. Graves, 212, 213. 
 Phillips V. Green, 503, 507. 
 Phillips V. Hoskins, 203, 505, 506. 
 Phillips V. Lloyd, 487. 
 Phillips V. Meyers, 76. 
 Phillips V. Phillips, 275, 278, 391. 
 Phillips V. Railway Co., 622. 
 Phillips V. Richardson, 96, 98. 
 Phillips V. Spalding's Guardian, 439. 
 Philp V. Squire, 115. 
 Philpott, In re, 296. 
 Philpott V. Kirkpatrick, 114. 
 Phinney v. Illinois Cent. R. Co., 621. 
 Pickens' Estate, In re, 2^8. 
 Pickering v. Gunning, 484. 
 Pidge V. Pidge, 260, 201. 
 Pidgin v. Cram, 324. 
 Pieper v. Shahid, 430. 
 Pierce, In re, 231. 
 Pierce v. Boyer-Van Duran Lumber 
 
 Co., 639. 
 Pierce v. Chaee, 148, 157. 
 Pierce v. Pierce, 223, 224, 272, 273, 
 
 ■351. 
 Pierce v. Prescott, 426, 428. 429, 457. 
 Pierce v. Vansell, 218, 225. 
 Pierce's Adm'r v. Trigg's Heirs, 437. 
 Pierpont v. Wilson, 175, 179. 
 Piers V. Piers, 49. 
 Pierson v. Heisey, 388. 
 Pierson v. Lawler, 566. 
 Pigeon V. Lane, 622. 
 Pike V. Brittan, 647. 
 Pike V. Pike, 53. 
 Pile V. Pile, 263, 270. 
 Pillar V. Pillar, 252. 
 Pillsbury's Estate, In re, 317. 
 Pinckney v. Talmage, 584. 
 Ping Mln. & Mill. Co. v. Grant, 357, 
 
 362, 476. 
 Pinkard v. Pinkard, 263. 
 Pinkley v. Chicago & B. I. R. Co., 613. 
 Pinnebad v. Pinnebad, 251. 
 Pinnell v. Hinkle, 411. 
 Pioneer, The, 579. 
 Pior V. Giddens, 150. 
 
CASES CITED 
 [Tbe figures refer to pages] 
 
 719 
 
 Pippin V. Jones, 84. 
 
 Pirtle V. State, 559. 
 
 Pitcairn v. Pitcairn, 60. 
 
 Pitcher v. Laycock, 506. 
 
 Pittam V. Foster, 156. 
 
 Pittis V. Pittis, 256. 
 
 Pitts V. Pitts, 279. 
 
 Pittsburgh, C. & St. L. R. Co. v. 
 
 Adams, 614, 619. 
 Pizzati, Succession of, 312. 
 P. J. Hunycutt & Co. v. Thompson, 
 
 333, 361. 
 Place V. Grand Trunk R. Co., 619. 
 Plahn V. Dribred, 347, 353. 
 Planche v. Colburn-, 586. 
 Plant V. Taylor, 31. 
 Plaster v. Plaster, 324. 
 Platner v. Patchin, 183, 184. 
 Piatt V. Southern Photo Material Co., 
 
 615. 
 Plattner v. Plattner, 50. 
 Pleasonton's Estate, In re, 444. 
 Pledge V. Griffith, ^24. 
 Plowes V. Bossey, 296, 299. 
 Plowman v. Nicholson, 391. 
 Plummer v. Jarman, 129. 
 Plummer v. Northern Pac. R. Co., 481, 
 
 515. • 
 
 Plummer v. Webb, 354, 377, 385, 643. 
 Plymate v. Plymate, 258. 
 Pochelu's Emancipation, In re, 519. 
 Poe V. Schley, 457. 
 Poindexter v. Blackburn, 131. 
 Pokanoket, The, 583, 584. 
 Pollock V. Pollock, 76, 258. 
 Poison V. Poison, 281. 
 Pomeroy v. Manhattan Life Ins. Co., 
 
 202. 
 Pond V. C;arpenter, 157, 188, 205, 212. 
 Pond V. Curtiss, 430. 
 Ponder v. D. W. Morris & Bro., 173. 
 Ponder v. Graham, 32. 
 Ponder v. Morris & Bros., 82. 
 Ponsford v. Johnson, 72, 74. 
 Pool V. Pratt, 22. 
 Poole V. People, 51, 82. 
 Pooley V. Dutton, 117. 
 Poor V. Poor, 80, 256. 
 Pope V. Heywooid Bros. & Wakefield 
 
 Co., 638. 
 Pope V. Pope, 244. 
 Popejoy V. Hydraulic Press Brick Co,. 
 
 325. 
 Popkin V. Popkin, 279. 
 Popp V. Connery, 208. 
 Porch V. Fries, 142, 451. 
 Porritt V. Porritt, 265, 268. 
 Port V. Port, 38, 41, 44, 45. 48, 49, 
 
 52, 53. 
 
 Porter, In re, 467. 
 
 Porter v. Bank of Rutland, 187. 
 
 Porter v. Briggs, 180, 181. 
 
 Porter v. Brooks, 544. 
 
 Porter v. Day, 655. 
 
 Porter v. Porter, 263. 
 
 Porter v. Powell, 324, 325, 332. 
 
 Porter v. U. S., 42. 
 
 Porterfield V. Butler, 157. 
 
 Portland Iron Works v. Willett, 602. 
 
 Portland Terminal Co. v. Jarvis, 021. 
 
 Portsmouth v. Portsmouth, 18, 19. 
 
 Post V. Post, 245, 246, 291. 
 
 Poston V. Williams, 473. 
 
 Potier V. Barclay, 40. 
 
 Potinger v. Wightman, 393, 416. 
 
 Potter V. Carpenter, 576. 
 
 Potter V. Clapp, 62. 
 
 Potter V. Faulkner, 624. 
 
 Potter V. Hiscox, 426, 428. 
 
 Potter V. Mobley, 160. 
 
 Potter V. New York, etc., R. Co., 632. 
 
 Potter V. Potter, 62. 
 
 Potter V. Thomas, 486. 
 
 Potts V. Terry, 399. 
 
 Poussard v. Spiers, 588. 
 
 Powell, Ex parte, 463, 464. ' 
 
 Powell V. Benthall, 116, 117. 
 
 Powell V. Construction Co., 653. 
 
 Powell V. Evans, 432. 
 
 Powell V. Mansom, 218. 
 
 Powell V. Powell, 29, 56, 59, 60, 68 
 
 89, 202, 447. 
 Powell V. Sherwood, 635. 
 Powell V. State, 295, 297, 462. 
 Powelson v. Powelson, 255. 
 Powers V. Harlow, 522. 
 Powers V. Maine Central R. R.', 622. 
 Powers V. Powers, 23, 122, 388. 
 Powhatan Lime Co. v. Whetzel's 
 
 Adm'x, 612. 
 Prall V. Prall, 253, 259. 
 Prall V. Smith, 196. 
 Prat V. Taylor, 125. 
 Prather v. Prather, 262. , , 
 Pratt V. Nitz, 305. 
 Pratt's Adm'r v. Baker, 414. 
 Pray v. Gorham, 355. 
 Pray v. Pray, 14. 
 Pray v. Standard Electric Co., SSl. 
 Pray v. Stebbins, 149. 
 Preble v. Longfellow, 410, 413. 
 Prendergast v. Prendergast, 248. 
 Prentice v. Decker, 387. 
 Prentiss v. Kent Furniture Mfg. Co., 
 
 619. 
 Prentiss v. Ledyard, 584, 592. 
 Prentiss v. Mfg. Co., 617. 
 Prentiss v. Paisley, 218. 
 
720 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Prescott V. Brown, 125, 130. 
 
 Prescott V. Norrls, 527. 
 
 Prescott V. White, 602. 
 
 President, etc., of Mechanics' Bank v. 
 
 New York & N. H. R. Co., 646. 
 Pressley v. Incorporated Town of Sal- 
 
 lislaw, 626. 
 Presson v. Presson, 245. 
 Prettyman v. Williamson, 121. 
 Pretzinger v. Pretzinger, 324, 328. 
 Preuitt V. Preuitt, 253. 
 Prevost, Succession of, 41. 
 Prevent V. Gratz, 420. 
 Prewit V. Wilson, 221. 
 Price V. Furman, 493, 509, 510, 512, 
 
 517. 
 Price V. Greer, 565. 
 Price V. Hewett, 528. 
 Price V. Jennings, 487, 528. 
 Price V. Price, 88, 120. 
 Price V. Sanders, 481, 483, 484. 
 Price V. Tompkins, 63. 
 Pride v. Earls df Bath, 31. 
 Prince v. Edwards, 51. 
 Prince v. Hine, 416. 
 \ Prince v. Prince, 319. 
 Prindle v. Holcomb, 443. 
 Prine v. Pi-ine, 20. 
 Pringle v. Producers' Turpentijie Co., 
 
 589. 
 Printz V. Brown, 152. 
 Prior V. Giddens, 150. 
 Probate Court v. Niles, 133. 
 Probate Judge v. Stevenson, 450. 
 Proctor V. Blgelow, 50. 
 Proctor V. Proctor, 284. 
 Proctor V. Sears, 498, 499. 
 • Proctor V. Woodruff, 169. 
 ProudJey v. Fielder, 139. 
 ProUt V. Wiley, 495. 
 Prouty V. Edgar, 478. 
 Provost V. Provost, 260. 
 Prudential Life Ins. Co. of America 
 
 V. FullCT, 487. 
 Bruitt, Ex parte, 463. 
 Pryor v. Pryor, 239. 
 Pugh V. Bowden, 463. 
 Pulver v.- Leonard, 442. 
 Purdy V. Ernst, 352. 
 Purinton v. Janarock, 305, 311, 315. 
 Purnell v. Purnell, 88. 
 Purple v. Railroad Co., 108. 
 Pursley v. Plays, ^502. 
 Puterbaugh's Estate, In re, 314. 
 Putnal V. Walker, 492, 495, 505, 510, 
 
 512. 
 Putnam v. Bicknell, 231, 232. 
 Putnam v. Tennyson, 157. 
 Putney, In re, 334, 416. 
 
 Pyatt V. Pyatt, 331, 414, 446. 
 Pyle V. Cravens, 473. 
 Pyne v. Wood, 485, 505. 
 Pyott V. Pyott, 18. 
 
 Quadring v. Downs, 397. 
 
 Quarles v. Quarles, 279. 
 
 Quarman v. Burnett, 651, 
 
 Quealy v. Waldron, 13. 
 
 Queen v. Smith, 352. 
 
 Quick V. Miller, 101. 
 
 Quigley v. Graham, 196. 
 
 Quilty V. Battle, 103. 
 
 Quincey Mining Co. v. Kitts, 627. 
 
 Quincey v. Quincey, 277, 279, 281. 
 
 Quinlan v. Lackawanna Steel Co., 625. 
 
 Quinlan v. Westervelt, 174. 
 
 Quinn v. Ladd, 564. 
 
 Quinn v. Power, 648. 
 
 Quintana v. Lerma, 240. 
 
 Quisenberry v. Thompson, 83. 
 
 R 
 
 Eabb v. Flenniken, 82. 
 
 Babe V. Hanna, 116. 
 
 Kaborn ». State, 329. 
 
 Rademacher v. Rademacher, 275. 
 
 Raden v. Georgia R. Co., 368. 
 
 Rader v. Adamson, 471. 
 
 Rader v. Rader, 250. 
 
 Radford v. Carwile, 188, 191. 
 
 Rafferty v. People, 558. 
 
 Ragland v. Justices of Inferior Court, 
 
 457. 
 Ragon V. R. Co., 618. 
 Rahn v. Hamilton, 311. 
 Railsback v. Railsback, 118, 120. 
 Railway Co. v. Whitton's Adm'r, 112. 
 Hains v. Wheeler, 240. 
 Rajnowski v. Detroit, B. C. & A. R. 
 
 Co., 377. 
 Ralph V. Taylor, 556. 
 Ralston, Ex parte, 408. 
 Ralston v. Lahee, 470. 
 Ralston v. Ralston, 271. 
 Ramsay \. Thompson, 399. 
 Ramsdell v. Coombs Aeroplane Co., 
 
 476. 
 Ramsey, In re, 462. 
 Ramsey v. Ramsey, 251, 327, 404, 409. 
 Ramsey v. Yount, 234. 
 Rand v. Bogle, 35, 72. 
 Randall v. Morgan, 228. 
 Randall v. Randall, 240, 241. 
 Randall v. Rotch, 572. 
 Randall v. Sweet, 479, 482, 483, 
 Randlett v. Rice, 53. 
 
CASES CITED 
 [The figures refer to pages] 
 
 721 
 
 Bankin v. Miller, 440. 
 
 Rankin v. Schiereck, 216, 225. 
 
 Eannells v. Gerner, 543. 
 
 Ransom v. New York, C. & St. L. R. 
 
 Co., 315. 
 Ransom v. Nichols, 139, 194. 
 Ransom v. Ransom, 246, 290. 
 Rapho V. Moore, 608. 
 Rapid, The, 567. 
 Rapid Transit Land Co. v. Sanford, 
 
 500. ■ 
 Rapp V. Rapp, 268, 277. 
 RatclifEe v. Walker, 118. 
 Rath V. Rankins, 199. 
 Ratlife V. Baltzer's Adm'r, 538, 539, 
 _ 540, 541. 
 Ratte V. Dawson, 522. 
 Rawdon v. Rawdon, 21, 56, 57, 59, 60. 
 Rawlyns v. Vandyke, 323. 
 Rawson v. Corbett, 414, 431. 
 Bawson v. Rawson, 32. 
 Ray V. Haines, 492, 517. 
 Ray V. Tubbs, 479, 526, 527. 
 Raymond v. General Motorcycle Sales 
 
 Co., 466, 491, 528. 
 Raymond v. Loyl, 323. 
 Raymond v. Raymond, 259. 
 Eaynes, In re, 641. 
 Raynes v. Bennett, 175, 179, 180. 
 Raysor v. Lumber Co., 576. 
 Rea V. Durkee, 174, .175, 176. 
 Rea V. Englesing, 467. 
 Rea V. Rea, 233. 
 Rea V.' Tucker, 121, 122. 
 Eeab v. Moor, 604. 
 Read v. Legard, 540. 
 Read v. Morse,*615. 
 
 Reade v. Livingston, 225, 226, 228, 236. 
 Reading v. Wilson, 410, 412. 
 Reading Fire Ins. & Trust Co., Appeal 
 
 of, 53. 
 Real V. Warren, 203. 
 Ream v. Watkins, 362. 
 Reams v. Taylor, 546. 
 Reando v. Misplay, 540, 541. 
 Reaves v. Reaves, 2, 3, 43. 
 Rebstock v. Rebstock, 252. 
 Rector v. Bryant Lumber & Shingle 
 
 Mill Co., 618. 
 Rector v. Rector, 259, 466. 
 Redden v. Baker, 535. 
 Redford v. Redford, 265. 
 Redgrave v. Redgrave, 50. 
 Redlngton v. Redington, 283. 
 Red River Nat. Bank v. Ferguson, 210, 
 
 211. 
 Reed v. Boshears, 504. 
 Reed v. Harper, 557. 
 Reed v. Lane, 474, 475. 
 
 TIFF.P.& D.Rbl.(3d Ed.)— 46 
 
 Reed v. Reed, 59, 116, 117, 120, 256, 
 
 263. 
 Reed v. Ryburn, 444. 
 Reed v. Swift, 578. 
 Reedie v. Railway Co., 653. 
 Reese v. Chilton, 177. 
 Reese v. Starner, 308. 
 Reeves v. McNeill, 199. 
 Reeves v. Reeves, 32, 34, 57, 252. 
 Reg. V. Avery, 93.. 
 Reg. V. Barnardo, 305. 
 Reg. V. 'Brighton, 27. 
 Reg. V. Chadwick, 27, 34. 
 Reg. V. Cruse, 92. 
 Reg. V. Davis, 558. 
 Reg. V. Doody, 558. 
 Reg. V. Dykes, 90, 91. 
 Reg. V. Featherstone, 93. 
 Reg. V. Griffin, 340. 
 Reg. V. Gyngall, 344. 
 Reg. V. Hill, 470. 
 Reg. V. Jackson, 79, 80, 94. 
 Reg. V. Kenny, 93. 
 Reg. V. Millis, 16, 40, 45, 48, 52. 
 Reg. V. Morby, 323. 
 Reg. V. Murray, 298. 
 Reg. V. Nash, 305. 
 Reg. V. Nicholas, 470. 
 Reg. V. Orgill, 14. 
 Reg. V. PhilUps, 531. 
 Reg. V. Stokes, 550. 
 Reg. V. Thompson, 93. 
 Reg. V. ToUett, 93, 94. 
 Reg. V. Torpey, 92. 
 Regal Realty & Inv. Co. v. Gallagher, 
 
 160. 
 Regan v. Superb Theatre, 368. 
 Rehart v. Rehart, 250. 
 Rehfuss V. Rehfuss, 242. 
 Reid V. Medley's Adm'r, 611, 628. 
 Reid V. Miller, 209. 
 Reid V. Reid, 68, 259, 284. 
 Reid's Estate, In re, 303. 
 Reiersen v. Reiersen, 275. 
 Reifschneider v. Reifschneider, 22, 38, 
 
 39, 40, 67. 
 Reinders v. Koppelmann, 319. 
 Reinskopf v. Rogge, 556. 
 Reis, In re, 217. 
 Reithmaier v. Beckwith, 76. 
 Reitman v. Scheyer, 181. 
 Remmington v. Lewis, 308. 
 Renfrow y- Renfrew, 37, 38. 
 Reniger v. Fogossa, 558. 
 Rennington v. Cole, 58. 
 Rentie v. Rentie, 301, 309. 
 Republic of Hawaii v. Li Shee, 54. 
 Respublica v. De Longchamps, 563. 
 Reuter v. Lawe, 457. 
 
722 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Reutkemeier v. Nolte, 379, 380. 
 
 itevel V. Prultt, 359. 
 
 Eevett V. Harvey, 401, 447. 
 
 Hex V. Birmingham, 39. 
 
 Rex V. Burton-upon-Trent, 16. 
 
 Rex V. Clark, 93. 
 
 Rex T. De Manneville, 343, 844. 
 
 Rex V. Greenliill, 343. 
 
 Rex V. James, 93. 
 
 Rex V. Lister, 78. 
 
 Rex V. Luffe, 294, 297, 299. 
 
 Rex V. March, 94. 
 
 Rex V. Morris, 91. 
 
 Rex V. Munden, 392. 
 
 Rex V. New, 305. 
 
 Rex V. Oakley, 436. 
 
 Rex V. Owen, 530. 
 
 Rex V. Price, 90. 
 
 Rex V. Rook, 300. 
 
 Rex V. Rotherfield, 478. 
 
 Rex V. Tolfree, 93. 
 
 Rex V. Twyning, 64. 
 
 Rex V. Wakefield, 13, 14. 
 
 Rex V. Welford, 589. 
 
 Rex V. Williams, 470. 
 
 Reynolds, In re, 451. 
 
 Reynolds v. Garber-Buick Co., 412. 
 
 Reynolds v. Hart, 592. 
 
 Reynolds v. Hitchcock, 309. 
 
 Reynolds v. Lansford, 237. 
 
 Reynolds v. McCurry, 512. 
 
 Reynolds v. Reynolds, 10, 11, 12, 46, 
 
 259. 
 Reynolds v. Robinson, 125. 
 Reynolds v. Sweetser, 176, 324. 
 Reynolds v. U. S., 2, 248. 
 Reynolds' Adm'r v. Reynolds, 391. 
 Rezabek v. Rezabek, 147, 196. 
 Rhame v. Rhame, 251. 
 Rhea v. Rhenner, 32, 158. 
 Rhoades v. Lyons, 152. 
 Rhoades v. McNnlty, 386. 
 Rhoades v. Rhoades, 77. 
 Rhode Island Hospital Trust Oo. v. 
 
 Humphrey, 317. 
 Rhodes v. Des Moines, 621. 
 Rhodes v. Frazier's Estate, 483, 485. 
 Rhodes v. State, 462. 
 Rhyne v. HofEman, 295. 
 Ribet V. Ribet, 283. 
 Ricard v. Ricard, 63. 
 Ricci V. Mueller, 103. 
 Rice, Case of, 407, 442. 
 Rice V. 'Anderson, 510. 
 Rice V. Boyer, 492, 493, 515, 528. 
 Rice V. Butler, 516. ■ 
 Rice V. Norfolk Southern R. Co., 370, 
 
 372 
 Rice V. Peet, 538. 
 
 Rice V. Railroad Co., 108. 
 
 Rice V. Rice, 43. 
 
 Rice V. Shipley, 198., 
 
 Rich V. Cockell, 188. 
 
 Rich V. Rich, 233. 
 
 Richard, In re, 37. 
 
 Richard v. Brehm, 43, 48, 50. 
 
 Richards v. Collins, 349, 350, 353. 
 
 Richards V. Richards, 79, 131, 138, 252, 
 
 256, 268. 
 Richardson v. Boynton, 457. 
 Richardson v. Cooper, 607, 608, 614. 
 Richardson v. Day, 423. 
 Richardson v. Linney, 447. 
 Richardson v. Machine Works, 598. 
 Richardson v. Pate, 495. 
 Richardson v. Richardson, 76, 283, 
 
 436. 
 Richardson v. Smallwood, 236. 
 Richardson v. Stodder, 194. 
 Richardson v. Strong, 540. 
 Richardson v. Stuesser, 81, 88, 536. 
 Rlchburg v. Sherwood, 172. 
 Richlands Iron Co. v. Elklns, 619. 
 Richmond v. Taylor, 303. 
 Richmond v.' Tibbies, 206. 
 Rickards v. Attorney General, 221. 
 RIddell V. Vizard, 441. 
 Riddle V. Riddle, 2. 
 Riddle's Estate, In re, 391. 
 Riddlesden v. Wogan, 31. 
 Ridenour v. International Harvester 
 
 Co., 647. 
 Rldgely v. Ridgely, 59. 
 Rldgeway v. Market Co., 593, 604. 
 Rie v. Rie, 261. 
 Rieger v. Schaible, 216. 
 Rlesen v. Riesen, 273. 
 Rietman v. Stolte, 618. 
 Riff, In re, 359, 361, 362, 364. 
 Rlggan V. Green, 542. 
 Riggs V. American Tract See., 539. 
 Riggs V. Price, 167. 
 Riggs V. Riggs, 327. 
 Riggs V. Zaleski, 429. 
 Rigley v. Lee, 98. 
 Rigsby V. Oil Well Supply Co., 609, 
 
 617, 618, 625. 
 Riley v. Carter, 540. 
 Riley v. Day, 314, 316. 
 Riley v. Dillon & Pennell, 496. 
 Riley v. MaUory, 493. 
 Rima v. Iron Works, 468. 
 Rindlaub v. Rindlaub, 243, 268. 
 Elnehart v. Bills, 113, 114. 
 Ring V. Jamison, 505. 
 Ringstad v. Hanson, 395, 396. 
 Rinker v. Streit, 415. 
 Rinn v. Rhodes, 234. 
 
CASES CITED 
 [The figures refer to p^ges] 
 
 72S 
 
 Hio Grande Southern R. Co. v. Camp- 
 bell, 607, 608, 609. 
 Ripple V. Kuehne, 389. 
 Rish V. I5wa Portland Cement Co, 
 
 636. 
 Rist V. Hartner, 447. 
 Rlstine v. Ristine, 285. 
 Ritch V. Hyatt, 205. 
 Rltter V. Ritter, 12. 
 Rivers v. Durr, 470. 
 Rivers v. Gregg, 483, 486. 
 Rives V. Sneed, 313, 314, 315. 
 Rix V. Rix, 274, 275. 
 Rixey's Adm'r v. Deitrick, 129, 186 
 Roach V. Garvan, 67, 330, 409. 
 Roach V. Quick, 184, 477. 
 Roadcap v. Sipe, 97, 98. 
 Robalina v. Armstrong, 305. 
 Robbins v. Eaton, 500, 502, 503. 
 Robbing v. Robbins, 224, 275, 278, 279, 
 
 282. 
 Roberts, In re, 445. 
 Roberts v. Coleman, 391. 
 Roberts v. Frisby, 76. 
 Roberts v. Haines, 200. 
 Roberts v. Knights, 563. 
 Roberts v. People, 90, 91. 
 Roberts v. Rockbottom Co., 580. 
 Roberts' Widow v. Stanton, 469. 
 Robertson v. Cole, 13. 
 Robertson v. Railroad Co., 628. 
 Robertson v. Robertson, 240. 
 Robertson v. State, 45, 48, 52. 
 Robertson v. Warden, 86. 
 Robinson v. Allison, 475, 494. 
 Robinson v. Cone, 523. 
 Robinson v. Davison, 594, 603. 
 Robinson v. Gosnold, 177. 
 Robinson v. Hathaway, 518. 
 Robinson v. Hindman, 589. 
 Robinson v. Hoskins, 501. 
 Robinson v. Reynolds, 158. 
 Robinson v. Robinson, 250, 327, 423. 
 Robinson v. Ruprecht, 301. 
 Robinson v. Weeks, 473, 510. 
 Robinson v. Zollinger, 399, 455. 
 Roche V. Chaplin, 412. 
 Roche V. Washington, 55, 69. 
 Roche V. Waters, 437. 
 Rockcastle Mining, Lumber & Oil Co. 
 
 V. Baker, 50. 
 Rockford, R. I. & St U R. Co. v. De- 
 
 laney, 377. 
 Rockwell v. Robinson's Estate, 127. 
 Rodemeyer v. Rodman, 157. 
 Rodgers v. Bank, 133. 
 Kodgers v. Rodgers, 289. 
 Roebling Const. Co. v. Thompson, 622. 
 RofE v. Summit Lumber Co., 610. 
 
 Rogers v. Blackwell, 539, 545. 
 
 Rogers v. Brooks, 140. 
 
 Rogers v. Clifton, 601. 
 
 Rogers v. Dill, 437. 
 
 Rogers v. Eaton, 207. 
 
 Rogers v. Harris, 436. 
 
 Rogers v. Illinois Cent. R. Co., 637. 
 
 Rogers v. Lindsay, 446. 
 
 Rogers v. McLean, 442. 
 
 Rogers v. Manufacturing Co., 627. 
 
 Rogers v. Parham, 598. 
 
 Rogers v. Rogers, 106, 241, 265, 273, 
 
 274, 275, 279, 280, 281, 327. 
 Rogers v. Smith, 108, 111, 367, 368,^ 
 
 369. , . . . ^ 
 
 Rogers v. State, 463. 
 
 Rogers Mfg. Co. v. Rogers, 599. 
 
 Rohrer, In re, 303. 
 
 Rohwer v. District Court of First Ju- 
 dicial District, 302, 477, 488. 
 
 Roller V. Roller, 340. 
 
 Rolling Mill Co. v. Corrigan, 613. 
 
 Rollins V. Chalmers, 381. 
 
 Rollins V. Marsh, 412. 
 
 Rood V. Wright, 206, 211. 
 
 Rooks V. Tindall, 463. 
 
 Roos V. Basham, 155. 
 
 Root V. Kansas City Southern R. Co., 
 622. 
 
 Root V. Root, 250. 
 
 Roscoe V. McDonald, 410. 
 
 Rose V. Bates, 158. 
 
 Rose V. Boston & A. R. Co., 631. 
 
 Rose V. Rose, 244, 257, 264. 
 
 Rose V. Sanderson, 196. 
 
 Roseborough v. Roseborough, 415, 416. 
 
 Rosenfeld v. Rosenfeld, 255. 
 
 Rosenkrans v. Rosenkrans, 316. 
 
 Rosenthal v. Mayhugh, 158. 
 
 Ross V. Howard, 154. 
 
 Ross V. Johnson, 86, 179, 180. 
 
 Ross. V. Ross, 178, 303, 304, 310, 311, 
 316, 320. 
 
 Ross V. Singleton, 156, 157. 
 
 Ross V. Southwestern R. Co., 407. 
 
 Ross V. Sparks, 39, 64. 
 
 Ross' Guardianship, In re, 409. 
 
 Ross P. Curtice Co. v. Kent, 518. 
 
 Roszel v. Roszel, 7. 
 
 Roth V. Roth, 10, 59, 60. ' 
 
 Roth's Estate, In re, 447. 
 
 Rothbarth v. Herzfeld, 567. 
 
 Rott V. Goehring, 114, 119. 
 
 Rounds V. Railroad Co., 650. 
 
 Rounds Bros. v. McDaniel, 334, 358, 
 
 359, 360, 361, 363, 364. 
 Roush V. Griffith, 429. 
 Rousk V. Griffith, 428. 
 Rous V. Lumber Co., 626. 
 
724 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Rowe V. Rowe, 253, 345. 
 
 Rowe V. Rugg, 340. 
 
 Rowe V. Smith, 103, 104. 
 
 Rowell V. Barber, 226, 227. 
 
 Rowell V. Rowell, 32T. 
 
 Rowlands v. Chicago & 'N. W. R. Co., 
 
 634. 
 Rowley v. Towsley, 424. 
 Rowney, Case of, 141. 
 Royal v. Grant, 354. 
 Royal V. Royal, 350. 
 Royal V. Southerland, 161, 210. 
 Royer, Appeal of, 426, 427, 434. 
 Roys V. Johnson, 579. 
 Royston v. Royston, 436. 
 Rubin V. Strandberg, 505. 
 Rudd V. Rounds, 113. 
 Ruddock V. Marsh, 169, 172. 
 Rudowsky's Estate, In re, 176. 
 Rudy V. Rudy, 457. 
 Rue V. Meirs, 469. 
 Ruhl V. Heintze, 82, 173. 
 Rule V. Broach, 439 
 RuUman v. RuUman, 450. 
 Rummels v. Clark, 453. 
 Rumney v. Keyes', 177. 
 Humping v. Rumping, 243, 245. 
 Rundle v. Pegram, 8. 
 Runkle V. Runkle. 270. 
 Ruohs V. Backer, 453, 454. 
 Rush V. Wick, 477. 
 Russel V. Chambers, 381. 
 Russel V. Hammond, 236. 
 Russel V. People's Sav. Bank, 204, 206, 
 
 207. 
 Russell V. Borden's Condensed Milk 
 
 Co., 616. 
 Russell V. Brooks, 125, 130. 
 Russell V. Corne, 368, 369. 
 Russell V. Railroad Co., 628, 632. 
 Russell V. Russell, 252. 
 Russell V. Slade, 579. 
 Russell V. Tillotson, 620. 
 Russner v. McMillan, 404. 
 Rust V. GofE, 167. 
 Rust V. Vanvacter, 345. 
 Rutledge v. Rutledge, 81, 186, 196. 
 Rutledge v. Tunns, 43, 48. 
 Ryall V. Kennedy, 393. 
 Ryals V. Ryals, 19. 
 Ryan v. Dayton, 586, 597, 605. 
 Ryan v. Delaware & Hudson Co., 612, 
 
 622. 
 Ryan v. Foreman, 315, 317. 
 Ryan v. Fralick, 376. 
 Ryan v. Morrison, 507. 
 Ryan v. Ryan, 283. 
 Ryan v. XJ. S., 557. 
 Ryan's Estate, In re, 81. 
 
 Ryder, Ex parte, 481. 
 Ryder, In re, 324. 
 Ryder v. BickertOn, 432. 
 Ryder v. Hulse, 197. 
 Ryder v. Ryder, 271. 
 Ryder v. Wombwell, 484, 486. 
 Rye V. Stubbs, 598. 
 Ryerson v. Ryerson, 107. 
 
 V. S- 
 
 271. 
 
 Sabens v. U. S., 558. 
 
 Sadowski v. Thomas Furnace Co., 638. 
 
 SafEer v. Mast, 538. 
 
 SafEord v. SafEord, 12. 
 
 Sage V. B-altimore & O. R. Co., 632. 
 
 Sainsevain v. Luce, 430. 
 
 St. John V. St. John, 240. 
 
 St. John s Parish v. Bronson, 484. 
 
 St. Johnsbury & L. C. R. Co. v. Hunt, 
 643. 
 
 St. Louis, I. M. & S. R. Co., v. An- 
 drews, 609. 
 
 St. Louis, I. M. & S. R. Co. v. Dupree, 
 632. 
 
 St. I.K)uis, I. M. & S. R. Co. V. Tonley, 
 653. 
 
 St. Louis, K. C. & C. R. Co. v. Conway, 
 612. 
 
 St. Louis Southwestern R. Co. v. 
 Harvey, 648. 
 
 St. Louis Southwestern R. Co. v. Pur- 
 cell, 110. 
 
 St. Louis & S. F. R. Co. V. Ames, 612. 
 
 St. Louis & S. F. R. Co. v. Little, 634. 
 
 St. Louis & S. F. R. Co. V. "Weaver, 632. 
 
 St. Louis & S. F. R. Co. v. Wyatt, 650. 
 
 Sale V. Saunders, 133, 141. 
 
 Salinas v. Bennett, 503. 
 
 Salisbury, In re, 437. 
 
 Salisbury v. Spofford, 198. 
 
 Sallee v. Arnold, 129. 
 
 Sallier, Succession of, 514. 
 
 Salorgne v. Salorgne, 265. 
 
 Salser v. Barron, 494. 
 
 Salter v. Howard, 643, 644. 
 
 Salter v. Salter, 137. 
 
 Saltmarsh v. Candia, 108. 
 
 Salvin's Will, In re, 63, 65. 
 
 Sammon v. Wood, 359. 
 
 Sample v. Guyer, 205, 207, 211, 233. 
 
 Sampson v. Holbrook, 624. 
 
 Sampson v. Sampson, 391. 
 
 Sams v. Sams' Adm'r, 301. 
 
 Samuel v. Marshall, 539. 
 
 San Antonio Light Pub Co. v. Moore, 
 597. 
 
 Sanborn v. Goodhue, 387. 
 
CASES CITED 
 [The figures reter to pages] 
 
 725 
 
 Sanborn v. Neilson, 122. 
 
 Sanders v. Forgasson, 443. 
 
 Sanders v. Gurley, 388. 
 
 Sanders v. Sanders, 306, 327. 
 
 Sanderson, In re, 641. 
 
 Sandmeyer v. Dolljsi, 466. 
 
 Sandusky Portland Cement Co. v. 
 Bice, 624. 
 
 Sanford v. Bertrau, 148. 
 
 Sanford v. Sanford, 391. 
 
 Sanger Bros. v. Trammell, 176. 
 
 Santiago v. Cruz, 37. 
 
 Santiago v. John E. Walsh Steve- 
 dore Co., 612. 
 
 Santos V. Sweeney, 87, 244. 
 
 Saperstone v. Saperstone, 288. 
 
 Sargent v. , 376, 378. 
 
 Sargent v. Mathewson, 385. 
 
 Sassaman v. Wells, 323, 333. 
 
 Saul V. His Creditors, 70. 
 
 Saunders v. Alvido & Laserre, 376. 
 
 Saunders v. Saunders, 345. 
 
 Saunders Transfer Co. v. Underwood, 
 110. 
 
 Saunderson v. Marr, 473. 
 
 Sausey v. Gardner, 130.. 
 
 Savage v. Foster, 528. 
 
 Savage v. Savage, 234. 
 
 Savannah, F. & W. R. Co. v. Smith, 
 356, 376. 
 
 Savery v. King, 389. 
 
 Savini v. Lousada, 442. 
 
 Sawyer v. Churchill, 225. 
 
 Sawyer v. Cutting, 479. 
 
 Sawyer v. Luf kin, 540, 541. 
 
 Sawyer v. Martins, 651. 
 
 Sawyer v. Metters, 233. 
 
 Sax V. Detroit, 6. H. & M. R. Co., 575. 
 
 Saxe V. Shubert Theatrical Co., 582. 
 
 Saxon V. Saxon, 147. 
 
 Say's Ex'rs v. Barnes, 444. 
 
 Sayles v. Foley, 636, 637. 
 
 Sayles v. Sayles, 240. 
 
 Scamell v. St. Louis Transit Co., 356. 
 
 Scammon v. Chicago, 647. 
 
 Scammon v. City, 652. 
 
 Scanlan v. "Cobb, 541. 
 
 Scanlon v. Walshe, 296. 
 
 Scantland v. Com., 307. 
 
 Scarborough v. Watkins, 230. 
 
 Scarlett v. Norwood, 378, 383. 
 
 Scawen v. Blunt, 131. 
 
 Sceva V. True, 540, 541. 
 
 Schaadt v. Mutual Life Ins. Co. of 
 New York, 155. 
 
 Schafer v. Bneu, 316. 
 
 Schaffer v. Krestovnikow, 51, 53, 63, 
 65, 68. 
 
 Schaffer v. Richardson's Estate, In re, 
 
 63. 
 Schaible v. Railway Co., 632. 
 Schammel v. Schammel, 352. 
 Schaps V. Lehner, 542. 
 Schaub V. Schaub, 268. 
 Scheller v. Silbermintz, 656. 
 Schenk v. Strong, 527. 
 Scheuer v. Monash, 587. 
 Schichtl V. Schichtl, 351. 
 ScMekhaus v. Sanford, 203. 
 Schillinger Bros. Co. v. Smith, 618. 
 Schlehuber v. American Express Co., 
 
 638. 
 Schlereth v. Railway Co., 632. 
 Schlitz V. Roenitz, 316. 
 Schlossberg v. Lahr, 335. 
 Schmelzer v. Chester Traction Co., 110. 
 Schmidt v. Keehn, 100. 
 Schmidt v. Milwaukee & St. P. R. Co., 
 
 521, 523. 
 Schmlnkey v. T. M. Sinclair & Co., 616, 
 
 619, 624. 
 Schmisseur v. Beatrie, 64. 
 Schmit V. Mitchell, 382. 
 Schmitheimer v. Eiseman, 528. 
 Schneider v. Biberger, 151. 
 Schneider v. Breier's Estate, 183, 210, 
 Schneider v. Garland, 207. 
 Schneider v. Rosenbaum, 180. 
 Schoen v. Schoen, 264. 
 Schoenberg v. Voigt, 360. 
 Schoennauer v. Schoennauer, 327. 
 Schofield V. Schofield, 26, 28, 67, 69, 71. 
 Scholefleld v. Eichelberger, 567. 
 School Directors v. James, 417. 
 School Dist. No. 1 V. Bragdon, 524. 
 Schoonover v. Sparrow, 362. 
 Schorn v. Berry, 122. 
 Schradln v. New York Cent. & H. B. B. 
 
 Co., 635. 
 Schrimpf v. Settegast, 323, 356. 
 Schroeder v. State, 345, 347. 
 Schroter v. Schroter, 10, 29. 
 Schubert v. Barnholdt, 62, 65. 
 Schuchart v. Schuchart, 42, 51. 
 SchufE V. Ransom, 544. 
 Schuler v. Henry, 101, 103. 
 Schultz V. Christopher, 106. 
 Schultz V. Morrison, 337. 
 Schultz Lumber Co. v. Robinson, 210. 
 Schulz V. Schulz, 105. 
 Schulz, Jr., Co. V. Raimes & Co., 566, 
 
 567, 568. 
 Schumacher v. Great Northern R. Co., 
 
 6, 38, 39, 41, 
 Schumer v. Register, 335. 
 Schumpert, Ex parte, 347, 348. 
 
726 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Schurr v. Savigny, 605. 
 
 Schurz V. McMenamy, 87. 
 
 Schuster v. Bauman Jewelry Co., 357. 
 
 Schuyler v. Broughton, 154. 
 
 Schuyler y. Hoyle, 133, 134, 139. 
 
 Schwartz, in re, 345. 
 
 Schwartz v. Gilmore, 653!. 
 
 Schwartz v. Saunders, 125. 
 
 Schwartz v. Schwartz, 16. 
 
 Schwerdt v. Schwerdt, 392. 
 
 Schwingle v. Keifer, 49. 
 
 Scldmore v. Smith, 643. 
 
 Scoggins V. Scoggins, 349. 
 
 Scott, Case of, 636. 
 
 Scott V. Buchanan, 494, 507. 
 
 Scott V. Collier, 206, 207. 
 
 Scott V. Com., 551. 
 
 Scott V. Cotten, 163. 
 
 Scott V. Freeland,.419, 420. 
 
 Scott V. Key, .304. 
 
 Scott V. O'Brien, 120. 
 
 Scott V. Paquet, 20. 
 
 Scott V. Payne Bros., 637, 640. 
 
 Scott V. Royston, 400, 468. 
 
 Scott V. Scott, 203, 208, 314. 
 
 Scott V. Sebright, 13, 14. 
 
 Scott V. Shufeldt, 12, 16, 60. 
 
 Scott V.' Watson, 335, 525. 
 
 Scott V. White, 363. 
 
 Scott's Account, In re, 444. 
 
 Scott-Sparger Co. v. Ferguson, 163. 
 
 Scottish. American Mortgage Co. v. 
 
 Butler, 564. 
 Scoville V. Brock, 426. 
 Scranton v. Stewart, 489, 506. 
 Scripps V. Reilly, 120. 
 Scroggins v. Scroggins, 10. 
 Scruggs V. Gage, 201. 
 Scudamore, Ex parte, 534. 
 Scully V. Industrial Commission, 641. 
 Scully's Estate, In re, 159. 
 Seaburn v. Zachmann, 601. 
 Seaman v. Duryea, 456. 
 Searcy v. Hunter, 489, 516. 
 Searing v. Searing, 135. 
 Searle v. Galbraith, 539. 
 Searle v. Ridley, 589. 
 Searles v. Northwestern Mut. Life Ins. 
 
 Co. of Milwaukee, 533. 
 Searles v. Searles, 289. 
 Sears v. Collie, ^30. 
 Sears v. Giddey, 182, 183. 
 Sears v. Terry, 406, 407. 
 Seaton v. Benedict, 171. 
 Seaver v. Adams, 118, 120, 122. 
 Seaver v. Lang, 193, 207. 
 Seaver v. Railroad Co., 632. 
 Seaverns v. Gerke, 407. 
 Seavey v. Shurick, 383. 
 
 Sebastian v. Bryan, 458. 
 
 Secklich v. Harris-Emery Co., 639. 
 
 Secor V. Secor, 264. 
 
 Seed V. Jennings, 517. 
 
 Seeds v. Seeds, 264, 265. 
 
 Seeley v. Seeley, 350. 
 
 Seeley v. Seeley-Howe-Le Van Co., 490,. 
 
 517. 
 Segelbaum v. Segelbaum, 256, 259. 
 Seguin, Appeal of, 418. 
 Seibert v. Seibert, 283. 
 Seigmund v. Seigmund, 270. 
 Seller v. People, 91, 97. 
 Seilheimer v. Seilheimer, 12. 
 Seipel V. Trust Co., 586. 
 Seiter v. Straub, 417. 
 Seitz V. Mitchell, 125. 
 Selah V. Selah, 60. 
 Selby V. Selby, 450. 
 Sellars v. Davis, 58. 
 SeUeck v. Selleck, 217. 
 Seller v, Seller, 286. 
 Sells V. Grand Trunk Ry., 634. 
 Selman v. Barnett, 385. 
 Semet-Solway Co. v. Wilcox, 596. 
 Semmes v. City Fire Ins. Co., 567,. 
 
 568. 
 Sencerbox v. First Nat. Bank, 201. 
 Senge v. Senge, 62. 
 Senser v. Bower, 64. 
 Sergeant v. Steinberger, 149. 
 Sergent v. Sergent, 258. 
 Sergison, Ex "parte, 467. 
 Serres, Succession of, 303. 
 Sessions v. Kell, 405. 
 Sessions' Estate, In re, 310. 
 Setzer v. Setzer, 20. 
 Severa v. National Slavonic Society 
 
 of U. S., 72. 
 Severance v. Severance, 49. 
 Sewall V. Roberts, 315, 316. 
 Sewall V. Sewall, 277, 278. 
 Sewell V. Sewell, 528. 
 Sexton V. New York Cent. & H. R. R^ 
 
 Co., 651. 
 Seybold v. Morgan, 175, 183. 
 Seymour v. Fellows, 234. 
 Shackelton v. Sebree, 555. 
 Shackett v. Shackett, 283. 
 Shackleton v. Shackleton, 278, '280 
 
 281. 
 Shade v. Ash Grove Lime & Portland 
 
 Cement Co., 636. 
 ShaefCer v. Sheppard, 125. 
 Shaffer v. Detle, 475. 
 Shafher V. State, 23, 24. 
 Shamleffer v. Mill Co., 438. 
 Shanks v. Seamonds, 438. 
 Shanny v. Androscoggin Mills, 626. 
 
CASES CITED 
 [The figures refer to pages] 
 
 727 
 
 Sharbero v. Miller, 535. 
 
 Sharon v. Slmrou, 48, 52. 
 
 Sharron's Estate, In re, 311. 
 
 Sharp, Ex parte, 463, 464. 
 
 Sharp V. Erie R. Co., 649. 
 
 Sharp V. McBride, 592, 598. 
 
 Sharp V. Rhiel, 579. 
 
 Sharpe v. Baker, 140, 147. 
 
 Sharpe v. Crispin, 393. 
 
 Sharpless, Appeal of, 158. 
 
 Sharron's Estate, In re, 311, 314. 
 
 Shattock V. Shattock, 191. 
 
 Shattuck V. Hammond, 121. 
 
 Shattuek v. Shattuck, 38, 48. 
 
 Shaver v. Ingham, 590, 591, 593. 
 
 Shaver v. McCarthy, 553. 
 
 Shaw V. Bernal, 200. 
 
 Shaw V. Boyd, 511. ' 
 
 Shaw V. Coffin, 529. 
 
 Shaw V. Gould, 277. 
 
 Shaw V. Nachtwey, 350. 
 
 Shaw V. Euss. 166. 
 
 Shaw y. Shaw, 246, 250, 253. 
 
 Shaw V. Sheldon, 618. 
 
 Shaw V. Thompson, 540. 
 
 Shaw's Estate, In re, 201. 
 
 Shawnee Gas & Electric Co. v. Hunt, 
 
 368. 
 Shawnee Gas & Electric Co. v. Mote- 
 
 senbocker, 368, 369. 
 Shea V. Railroad Co., 650. 
 Sheddon v. Patrick, 303. 
 Sheehan v. Railroad Co.. 629. 
 Sheehan v. Sheehan, 276. 
 Sheers v. Stein, 349, 853. 
 Sheetz's Estate, In re, 399. 
 Sheffield v. Franklin, 312. 
 Sheldon v. Sheldon, 251. 
 Sheldon's Lessee v. Newton, 479. 
 Shell V. Shell, 251. 
 Shelmerdine, In re, 467. 
 Shelton v. Pendleton, 180. 
 Shelton v. Springett, 322, 481. 
 Shepard v. Carter, 64. 
 Shepard v. Shepard, 231, 232. 
 Shepherd v. Evans, 428. 
 Shepherd v. Shepherd, 14, 16. 
 Shepperson v. Shepperson, 230. 
 Sheridan v. Charlick, 648. ' 
 Sheriff of Fayette v. Buckner, 129. 
 Sherley v. Billings, 650. 
 Sherlock v. Eiinmell, 357. 
 Sherman v. Ballou, 401. 
 Sherman v. Champlain Transp. Co., 
 
 596, 598. 
 Sherman v. Johnson, 377. 
 Sherman v. Sherman, 13, 16. 
 Sherry v. Littlefleld, 83. 
 Sherry v. Sansberry, 420.' 
 
 Sherwood v. Hall, 643. 
 
 Sherwood v. Warner, 647. 
 
 Shiek V. Howe, 320. 
 
 Shields v. Tonge, 368, 372, 373, 377. 
 
 Shipley v. Smith, 493, 509, 519. 
 
 Shirey v. Shirey, 224, 225., 
 
 Shirk V. Shultz, 475, 493, 512. 
 
 Shirley v. Shirley, 129. 
 
 Shirley v. Taylor's Heirs, 535, 
 
 Shiver v. Brock, 391. 
 
 Shivey v. Shivey, 280. 
 
 Shockley v. Shepherd, 335. 
 
 Shomaker v. Waters, 201. 
 
 Shoro v. Shoro, 13, 14. 
 
 Shors V. Shors, 77. 
 
 Short V. Battle, 195. 
 
 Shoulters v. Allen, 541. 
 
 Shrader v. Shrader, 32. 
 
 Shrady v. Logan, 11. 
 
 Shreeves v. Caldwell, 492, 506. 
 
 Shreve, In re, 466. 
 
 Shuey v. Adair, 154. 
 
 Shuman v. Steinel, 171, 179. 
 
 Shumate v. Shumate, 167, 168. 
 
 Shumway v. Cooper, 194. 
 
 Shurtleff v. Millard, 518. 
 
 Shurtleff v. Rile, 426. 
 
 Shute v. Dorr, 354, 356, 359, 360, 363, 
 
 Shutt V. Carloss, 451. 
 
 Sias V. Consolidated Lighting Col, 613. 
 
 Sickles V. Carson, 14. 
 
 Sidway v. Nichol, 199, 206. 
 
 Signaigo v. Signaigo, 319. 
 
 Sikes V. Bradley, 234. 
 
 Sikes V. Tippins, 114, 122. 
 
 Sillings V. Bumgardner, 429. 
 
 Silverstein v. Silverstein, 264. 
 
 Siman v. Lens, 451. 
 
 Simmons v. Arnim, 469. 
 
 Simmons v. Brown, 97, 98. 
 
 Simmons v. Bull, 305, 306. 
 
 Simmons v. International, Harvester 
 
 Co., 210. 
 Simmons v. McElwain, 231, 232, 237. 
 Simmons v. Meyers, 147. 
 Simmons v. State, 530. 
 Simmons v. Stevens, 13. ' 
 Simms v. Norris, 412. 
 Simoeneau v. Pacific Electric R. Co., 
 
 333. 
 Simon v. Allen, 597. 
 Simon v. Meaux, 155. 
 Simon v. Simon, 249. 
 Simon v. State, 44. 
 Simonds v. Simonds, 248. 
 Simonson's Estate, In re, 81. 
 Simonton v. Bacon, 538. 
 Simpson v. Alexander, 468. 
 Simpson v. Belcher, 167. 
 
728 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Simpson V. Gonzalez, 452, 453. 
 
 Simpson v. Gutteridge, 217. 
 
 Simpson v. Prudential Ins. Co. of 
 
 America, 475, 487. 
 Simpson v. Simpson, 77. 
 Sims V. Birden, 295. 
 Sims V. Everhardt, 466, 491, 495, 528. 
 Sims V. Gunter, 467, 474, 478, 481, 519. 
 Sims V. Eenwick, 442. 
 Sims V. Rickets, 230, 231, 232, 233. 
 Sims V. Sims, 20, 109, 119. 
 Sims V. Sims' Adm'r, 388. 
 Sinclair v. Sinclair, 12. 
 Sines v. Superintendents of Poor, 577. 
 Singer v. McCormick, 589. 
 Singer Mfg. Co. v. Lamb, 496, 506. 
 Singer's Estate, In re, 239. 
 Singleton v. State, 529, 530. 
 Sioux City & T. R. Co. v. Stout, 521, 
 
 522 
 Sir Ralph Bovy, Case of, 225, 226. 
 Sisemore v. Sisemore, 260. 
 Siter, Case of, 134. 
 Skarf V. Soulby, 236. 
 Skean v. Skean, 260. 
 Skelton v. Ordinary, 434. 
 Skidmore v. Davies, 458. 
 Skidmore v. Skidmore, 326. 
 Skillman v. Skillman, 125. 
 Skillman's Estate, In re, 84. 
 Skinner, Ex parte, 343. 
 Skinner v. Housatonic R. Corporation, 
 
 377. 
 Skinner v. Maxwell, 476, 507. 
 Skinner v. Skinner, 256, 278. 
 Skinner v. Tirrell, 175, 179, 181. 
 Slafter v. Savage, 468. 
 Slanning v. Style, 281. 
 Slater v. Advance Tliresher Co., 647. 
 Slater v. Jewett, 612, 625, 627, 628. 
 Slater v. Nason, 564. 
 Slater v. Rudderforth, 492, 507. 
 Slater v. Slater, 345, 349. 
 Slattery v. Lawrence Ice Co., 521. 
 Slattery v. Slattery, 350. 
 Slaughter v. Heath, 535. 
 Slaughter v. Nashville, C. & St. L. R. 
 
 Co., 366. 
 Slaymaker v. Bank, 132. 
 Slayton v. Barry, 528. 
 Slinger's Will, In re, 559. 
 Slingerland v. Slingerland, 223. 
 Sloane V. Boyer, 175, 179. 
 Sloan's Estate, In re, 147, 153. 
 Slocum's Estate, In re, 150. 
 Slusher v. Weller, 487. 
 Small V. Champeny, 585. 
 Smalley v. Lawrence, 153. 
 Smallwood v. Smallwood, 252. 
 
 Smart v. Wlialey, 57. 
 Smedley v. Felt, 87. 
 Smedley v. Smedley, 250. 
 Smee v. Smee, 553, 554. 
 Smelser 'v. Meier, 234. 
 Smidt V. Btoenga, 406, 417. 
 Smilie's Estate, In re, 133. 
 Smith, Appeal of, 401. 
 Smith, In re, 345, '347. 
 Smith V. Allen, 219, 221, 593. 
 Smith V. Atchison, T. & S. F. R. Co., 
 523. 
 
 Smith V. Baker, 589, 590. 
 
 Smith V. Bank, 37, 39. 
 
 Smith V. Bean, 428. 
 
 Smith V. Car Works, 609, 614. 
 
 Smith V. Cashie & Chowan R. & Lum- 
 ber Co.. 596, 597, 598. 
 
 Smith V. Chicago Junction R. Co., 607. 
 
 Smith V. Cole, 509. 
 
 Smith V. Davenport, 335. 
 
 Smith V. Davis, 448. 
 
 Smith V. Dayton Coal & Iron Co., 616. 
 
 Smith V. Deer's Adm'rs, 300, 304. 
 
 Smith V. Dibrell, 425. 
 
 Smith V. Farmers' & Merchants' Nat. 
 Bank, 131. 
 
 Smith V. Foran, 602, 603. 
 
 Smith V. Puller, 68, 64. 
 
 Smith V. Garber, 308. 
 
 Smith V. Geortner, 381. 
 
 Smith V. Gilbert, 332, 361. 
 
 Smith V. Gillapp, 119. 
 
 Smith V. Gott, 209. 
 
 Smith V. Gummere, 437, 458, 459. 
 
 Smith V. Haas, 409, 454. 
 
 Smith V. Haire, 134. 
 
 Smith V. Hoekenberry, 120, 122. 
 
 Smith V. Howe, 207, 208. 
 
 Smith V. Jordan, 387. 
 
 Smith V. Joshua Levines, The, 605. 
 
 Smith v. Kaye, 113, 115. 
 
 Smith v. Kelley, 500. 
 
 Smith v. Kelly's Heirs, 303. 
 
 Smith V. Knowles, 241. 
 
 Smith V. Knowlton, 359. 
 
 Smith V. Kron, 525. 
 
 Smith V. Lyke, 117. 
 
 Smith V. McDonald. 210, 469. 
 
 Smith V. Martin, 184. 
 
 Smith V. Masten, 121. 
 
 Smith V. Mayo, 498, 504. 
 
 Smith V. Moorehead, SO. 
 
 Smith V. Morehead, 56. 
 
 Smith V. Nicholas Bldg. Co., 113. 
 
 Smith V. North Memphis Sav. Bank, 
 38. 
 
 Smith V. Oliphant, 483. 
 
 Smith V. People, 44, 50. 
 
CASES CITED 
 [The figures refer to pages] 
 
 729 
 
 Smith V. Potter, 627, 628. 
 
 Smith V. Railroad Co., 589, 619. 
 
 Smith V. Reed, 42, 51. 
 
 Smith y. Rice, 114. 
 
 Smith V. Robson, 582. 
 
 Smith V. Rock Island, A. & I.. R. Co., 
 
 612. 
 Smith V. Russell, 146. 
 Smith V. Ryan, 539, 542. 
 Smith V. Sacliett, 466. 
 Smith V. St. Joseph, lOS, 111. 
 Smith V. Silence, 158. 
 Smith V. Smith, 11, 15, 19, 67, 77, 107, 
 
 117, 152, 246, 253, 268, 284, 290, 
 
 362, 418, 438, 434, 461. 
 Smith V. Smith's Ex'r, 475. 
 Smith V. Taylor, 96. 
 Smith V. Theobald, 584. 
 Smith V. Thompson, 188. 
 Smith V. Weed, 154, 198. 
 Smith V. Williams, 578. 
 Smith V. Williamson, 556. ' 
 
 Smith V. Young, 352, 395, 406. 
 Smith's Committee v. Forsythe, 540, 
 
 541, 542. 
 Smith's Ex'r v. Johns, 200. 
 Smith's Guardianship, In re, 844. 
 Smith's Will, In re, 554. 
 Smith & Co. V. Ohler, 596. 
 Smoot V. Bell, 442. 
 Smoot V. Ryan, 473, 481, 496, 516. 
 Smyley v. Reese, 182. 
 Smyth V. Burns' Adm'rs, 433. 
 Smyth V. State, 39. 
 Snavely v. Harkrader, 481, 458. 
 Snediker v. Everingham,.356, 859, 863. 
 Sneed v. Ewing, 50. 
 Sneed v. Sneed, 246. 
 Snell V. Ham, 324, 332. 
 Snell V. Snell, 35. 
 Snell V. Stone, 170. 
 Snell V. Weldon, 554. 
 Snelling v. Lord Huntingfield, 579. 
 Snickles v. St. Joseph, 127. 
 Snider v. Newell, 380. 
 Snodgrass' Appeal, 434. 
 Snook V. Watts, 543. 
 Snover v. J?lair, 176. 
 Snow "v. Sheldon, 164. 
 Snow V. Snow, 279, 280. 
 Snowball's Estate, In re, 398, 404. 
 Snowman v. Herrick, 540. 
 Snuffer v. Karr, 74. 
 Snyder v. Jett, 110, 128. 
 Snyder v. People, 93, 94. 
 Snyder v. Railroad Co., 648. 
 Sobol V. Sobol, 11. 
 Society for the Propagation of the 
 
 Gospel V. Wheeler, 196. 
 
 Sockett V. Wray, 166. 
 Sockey v. Winstoek, 439. 
 Sodowsky v. Sodowsky, 83. 
 Soldanels v. Missouri Pac. Railway 
 
 Co., 364. 
 Soley's Estate, In re, 454. 
 SoUinger's Estate, In re, 301. 
 SoltykofC, In re, 482. 
 Somers v. Pumphrey, 538, 540. 
 Somerville y. Somerville, 393. 
 Sonsmith v. Pere Marquette R. Co., 
 
 632. 
 Soper V, Igo, Walker Co., 385. 
 Soper V. Soper, 256. 
 Sorenson v. Rasmussen, 816. 
 Sorenson v. Sorenson, 45. 
 Sorrels v. Matthews, 367. 
 Sottomayer v. De Barros, 3. 
 Soule V. Bonney, 14. 
 Soules V. Robinson, 534. 
 Sousa V. Irome, 337^ 
 South V. Denniston, 376, 384. 
 Southard v. Pltunmer, 202. 
 South Bend Land Co. v. Denio, 428. 
 South Covington & C. St. B. Co. v. 
 
 Cleveland, 647. 
 Southern Bank of Fulton v. Nichols, 
 
 134. 
 Southern Cotton Oil Co. v. Dukes, 478, 
 
 512. 
 Southern Cotton Oil Co. v. Gladman, 
 
 613. 
 Southern Cotton Oil Co. v. Skipper, 
 
 613, 617. 
 Southern Indiana R. Co. v. Baker, 628. 
 Southern Marble Co. v. Stegall, 398. 
 Southern Pac. Co. v. Allen, 618. 
 Southern Pac. Co. v. Dusablon, 73. 
 Southern Pac. Co. v. Pillsbury, 638. 
 Southern R. Co. v. Carr, 614. 
 Southern R. Co. v. Elliott, 681. 
 Southern R. Co. v. Flemister, 357, 370. 
 Southern R. Co. v. King Bros. & Co., 
 
 354. 
 Southern R. Co. v. Power Fuel Co., 
 
 650. 
 Southern R. Co. v. Reynolds, 656. 
 Southern R. Co. v. Rutledge, 624. 
 Southern R. Co. v. Smith, 631. 
 Southmayd v. Insurance Co., 581. 
 Southwick V. Southwick, 259. 
 Spade V. State, 827. 
 Spafford v. SpafEord, 89. 
 Spain V. Arnott, 589, 590. -- 
 
 Spalding v. Rosa, 594. 
 Spangler v. Vermillion, 167. 
 Spangler Co. v. Haupt, 526. 
 Sparhawk v. Allen, '418. 
 Sparkhawk v. Sparhawk, '292, 
 
730 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Sparks v. Bodensick, 565. 
 
 Sparks v. River & Har'bor Improve- 
 ment Co., 608. 
 
 Sparks v. Ross, 62, 64. 
 
 Sparks V. Sparks, 279. 
 
 Sparman v. Keim, 511. 
 
 Spath's Estates, In re, 446. 
 
 Spear v. Robinson, 27. 
 
 Spears v. Burton, 64. 
 
 Speck V. Phillips, 589. 
 
 Speckmann v. Foote, 83. 
 
 Speer v. Tlnsley, 413. 
 
 Speidel v. N. Barstow Co., 567, 
 
 Speler v. Opfer, 149, 201, 204. 
 
 Speiglit V. Gaunt, 426. 
 
 Speight V. Knight, 407, 454. 
 
 Speight V. Oliviera, 371. 
 
 Spencer v. Earl of Chesterfield, 452. 
 
 Spencer v. Leland, 210. 
 
 Spencer v. Lewis, 141. 
 
 Spencer v. Spencer, 53, 327. 
 
 Spencer v. State, 77. 
 
 Sperry v. Fanning, 412. 
 
 Sperry v. Haslam, 196. 
 
 Spicer v. Holbrook, 544. 
 
 Spiehs V. InsuU, 638. 
 
 Spitz, Appeal of, 160. 
 
 Spokane & I. B. R. Co. v. Wilsoij, 639. 
 
 Spondre, In re, 33, 43, 68. 
 
 Spondre's Estate, In re, 288. 
 
 Spoonheim v. Spoonheim, 555. 
 
 Spotswood V. Barrow, 589, 593, 
 
 Spradling v. Spradling, 233. 
 
 Sprague v. Tyson, 191. 
 
 Spreckels v. Spreckels, 155. 
 
 Spring V. Kane, 439. 
 
 Spring V. Woodworth, 411. 
 
 Sprung V. Morton, 50. 
 
 Spurgeon v. McBlwain, 579. 
 
 Spurlock V. Brown, 224, 225. 
 
 Spurlock V. Spurlock, 160. 
 
 Squib V. Wyn, 138. 
 
 Squier v. Hydlife, 483. 
 
 Squire v. State, 64. 
 
 Sroufe V. Sroufe, 444. 
 
 Stack V. Padden, 207. 
 
 Stackhouse v. Horton, 554. 
 
 StafCord v. Roof, 492, 493, 518. 
 
 Stalcup V. Staleup, 147. 
 
 Staley V. State, 63. 
 
 Stammers v. Macomb, 175, 179. 
 
 Standard Oil Co. v. Gilbert, 577. 
 
 Standard Oil Co. v. Parkinson, 647, 
 652. 
 
 Standeford v. Devol, 133. 
 
 Standen v. Pennsylvania R. Co., Ill, 
 112, 127. 
 
 Standidge v. Lynde, 590. 
 
 Stanhope v. Shambow, 477, 481, 505, 
 510. 
 
 Stanley v. National Union Bank, 363. 
 Stans V. Baitey, 53. 
 Stansberry v. Stansberry, 223. 
 Stansbury v. Bertron, 362. 
 Stanton, In re; 33. 
 Stanton v. Wetherwax, 553. 
 Stanton v. Willson, 324, 327, 333. 
 Stanwood v. Stanwood, 135. 
 Stapelton v. LangstafC, 43V. 
 Staples, Appeal of, 182. 
 Staples V. Wellington, 538. 
 Stapleton v. Poynter, 352. 
 Starbird v. Moore, 469. 
 Starbuck v. Starbuck, 245, 291. 
 Stark V. Gamble, 431, 444, 447. 
 Stark V. Johnson, 121. 
 Stark V. Kirchgraber, 186. 
 Starke v. Storm's Ex'r, 483. 
 Starkweather v. Dunlap, 609. 
 Starkweather v. Emerson Mfg. Co., 
 
 582. 
 Starr v. Pease, 292. 
 Starr v. Watkins, 510. 
 Starr v. Wright, 478. 
 Starrett v. Douglass, 559. 
 Starrett v. Wynn, 158. 
 State V. Aaron, 530. 
 State V. Adams, 530, 558. 
 State V. Alexander, 551. 
 State V. Alford, 340, 342. 
 State V. Anderson, 462. 
 State V. Armington, 245, 288, 290. 
 State V. Baird, 345. 
 State V. Baker, 90. 
 State V. Baldwin, 352. 
 State V. Baltimore & O. R. Co., 356. 
 State V. Bank, 41. 
 State V. Banks, 93, 94. 
 State V. Barney, 345. 
 State V. Barrett, 3"3, 356. 
 State V. Barton, 530. 
 State V. Beers, 328. 
 State V. Bell, 90, 91. 
 State V. Beslin, 345. 
 State V. Bitman, 340. 
 State V. Bittick, 2, 42, 44. 
 State V. Block, 328. 
 State V. Blodgett, 558. 
 State V. Bostick, 530. 
 State V. Brady, 31. 
 State V. Branch, 444. 
 State V. Bratton, 350. 
 State V. Brown, 457. 
 State V. Broyer, 77. 
 State V. Bryant, 463. 
 State V. Bunce, 520. 
 State V. Burton, 340. 
 State V. Cagle, 463, 465. 
 State V. Clark, 412, 415, 441, 
 State V. Clark, 461. 
 
CASES CITED 
 [The figures refer to pages] 
 
 731 
 
 state V. Clausen, 636. 
 
 State V. Cleaves, 92. 
 
 State V. Cone, 23, 24. 
 
 State V. Cook, 411. 
 
 State V. Cox, 459. 
 
 State V. Creamer, 636. 
 
 State y. Davis, 14, 529, 530. 
 
 State V. Day, 39. 
 
 State V. Deck, 462. 
 
 State V. De La Foret, 563. 
 
 State V. District Court of Ramsey 
 
 County, 640. 
 State V. District Court of Hennepin 
 
 County, 635, 641. 
 State V. District Court of St. Louis 
 
 County, 639, 640. 
 State V. District Court of Watonwam 
 
 County, 639. 
 State V. Dowell, 94. 
 State V. Duket, 292. 
 State V. Duncan, 290. 
 State V. Dunn, 463, 464. 
 State V. Ebarbo, 464. 
 State V. Eisen, 464. 
 State V. Engeike, 454. 
 State V. English, 14. 
 State V. Evans, 307. 
 State V. Fenn, 35, 69, 72. 
 State v. Finley, 94. 
 State V. Fisk, 529, 530. 
 State V. FUnt, 345. 
 State V. Fowler, 530. 
 State V. Foy, 430, 445. 
 State V. Freudenberg, 464. 
 State V. Fry, 292. 
 State V. Fuchs, 77. 
 State V. Fulton, 94. 
 State V. Gill, 90. 
 State V. Gilmore, 446. 
 State V. Gipson, 328. 
 State V. Goin, 530. 
 State V. Guild, 530. 
 State V. Guthridge, 557. 
 State V. Hand, 70, 72. 
 State V. Hansbrough, 45. 
 State V. Harrison, 551. 
 State V. Harvey, 90. 
 State v. Herman, 294. 
 State V. Hill, 81, 82. 
 State v. Hodgskins, 41. 
 State V. Holden, 575. 
 State V. Hooper, 31. 
 State V. Houston, 90, 91, 403. 
 State v. Howard, 464. 
 State V. Ikey's Estate, 537. 
 State v. Industrial Commission, 637. 
 State V. Isenhuth, 462, 463. 
 State V. Johnson, 462, 559j 
 
 State V. Jones, 340, 341, 342, 443, 458, 
 
 531, 550. 
 State V. Kean, 62. 
 State V. Kelley, 316, 453. 
 State V. Kelly, 90, 91. 
 State V. Kennedy, 49, 71. 
 State V. King, 348. 
 State V. Klasen, 461, 462. 
 State V. Kluseman, 530. 
 State V. Langford, 329. 
 State V. Lankford, 94. 
 State V. Lawrence, 536. 
 State V. Leslie, 444. 
 State V. Lewis, 550. 
 State V. Libbey, 352. 
 State V. Livingston Concrete Bldg. & 
 
 Mfg. Co., 574. 
 State V. Lowell, 76, 360. 
 State V. McCants, 559. 
 State V. McDonald, 307. 
 State V. McQilvery, 38. 
 State V. MePherson, 81. 
 State V. Martin, 410. 
 State V. Miller, 444. 
 State V. Morrison, 426. 
 State V. Morse, 246, 247. ■ 
 State V. Mushied, 307. 
 State V. Nakashima, 27. 
 State V. Neibekier, 562. 
 State V. Newman, 176, 177. 
 State V. Nichols, 307. 
 State V. Nowell, 92. 
 State V. Oliver, 94. 
 State V. Paine, 348, 350. 
 State V. Parker, 23. 
 State V. Peabody, 328. 
 State V. Pendergrass, 342. 
 State V. Porter, 550. 
 State V. Postal Telegraph & Cable Co., 
 
 637. 
 State V. Potter, 91. 
 State V. Pratt, 268. 
 State V. Pugh, 530. 
 State V. Rhodes, 80^ 
 State V. Richardson, 345, 346, 446. 
 State V. Richie, 470. 
 State V. Riddle, 549, 551. 
 State V. Robinson, 90, 205, 558. 
 State V. Rose, 462. 
 State V. Rosenfield, 462. 
 State V. Roswell, 27. 
 State V. Rucker, 306. 
 State V. St. John, 49. 
 State V. Sanner, 328. 
 State V. Sartwell, 35. 
 State V. Schnables, 462. 
 State V. Schweitzer, 77. 
 State V. Servier, 534. 
 
732 
 
 CASES CITED 
 [The figures refer to pages] 
 
 State V. Shackleford, 458. 
 
 State V. Shattuek, 35, 68, 72, 74. 
 
 State V. Shaw, 295, 296, 298. 
 
 State V. Shee, 91. 
 
 State V. Shorey, 462. 
 
 State V. Shouse, 329. 
 
 State V. Slevin, 458. 
 
 State V. Smith, 28, 353, 566. 
 
 State V. Snell, 551. 
 
 State y. Sparegrove, 328. 
 
 State V. Stebbins, 558. 
 
 State V. Stewart, 443. 
 
 State V. Stigall, 347. 
 
 State V. Superior Court, 83. 
 
 State V. Ta-cha-na-tah, 55. 
 
 State V. Thomas, 565. 
 
 State V. Thompson, 43. 
 
 State V. Thornton, 329. 
 
 State V. Thrallkill, 530. 
 
 State V. Tice, 530. 
 
 State V. Tilllnghast, 40. 
 
 State V. Toole, 94. 
 
 State V. Trultt, 558. 
 
 State V. Vineyard, 630. 
 
 State V. Walker, 38, 42. 
 
 State V. Weatherby, 72. 
 
 State V. Weatherwax, 478. 
 
 State V. Welch, 558. 
 
 State V. Westmoreland, 34. 
 
 State V. Wilson, 41, 294. 
 
 State V. Witham, 77, 83. 
 
 State V. Worthingham, 7, 38, 42, 44, 49, 
 
 51. 
 State V. Yates, 558. 
 State T. Yoder, 35, 57. 
 State V. Yturria; 315, 317. 
 State V. Zichfeld, 37, 38, 39, 43. 
 State Bank v. McCoy, 556. 
 State Board of Control v. Buckstegge, 
 
 462. 
 State Commission in Lunacy v. El- 
 
 dridge, 540. 
 State ex rel. Baker v. Bird, 400, 453. 
 State ex rel. Bush v. Traham, 351. 
 State ex rel. Cave v. Tincher, 344, 345, 
 
 463. 
 State ex rel. Deckard v. Macom, 326. 
 State ex rel. Gardiner v. Dickman, 534. 
 State ex rel. Finger v. Reynolds, 405. 
 State ex rel. Taubman v. Davis, 75. 
 State ex rel. Young v. Cook, 403, 404. 
 State Fair Ass'n V. Terry, 451. 
 StauflEer v. Morgan, 153, 154. 
 Staver Carriage Co. v. Beaudry, 84, 87. 
 Stayte v. Farquharson, 16. 
 Stebbins v. Waterhouse, 601, 602, 603. 
 Stecher Cooperage Works v. Steadman, 
 
 624. 
 Steel V. Steel, 359, 388, 
 
 Steele, In re, 456. 
 
 Steele V. Atlantic Coast I/ine B. Co., 
 
 621. 
 Steele v. Hohenadel, 345, 
 Steele v. Leyhan, 175. 
 Steele v. Poe, 493. 
 Steele v. Keese, 458. 
 Steele v. Steele, 12, 259. 
 Steen v. Railroad Co., 619. 
 Stegall V. Stegall, 294. 
 Steller v. Hart, 613. 
 Steimer v. Steimer, 16. 
 Stein V. Stein, 32. 
 Stein's Adm'r v. Stein, 301. 
 Steinberger v. Young, 205. 
 Steinfield v. Girrard, 171, 177. 
 Stem, Appeal of, 429. 
 Stephens v. James, 407. 
 Stephens v. Stephens, 223, 224, 337, 
 
 525. 
 Stephens v. Trueman, 220. 
 Stephenson v. Duncan, 607. 
 Sterling v. Arnold, 423. 
 Sterling Emery Wheel Co. v. Magee, 
 
 593. 
 Sterns v. Weathers, 197. 
 Sterry v. Arden, 219, 221. 
 Stertz V. Industrial Ins. Commission, 
 
 639. 
 Stetz V. F. Mayer Boot & Shoe Co., 639- 
 Stevens v. Armstrong, 654. 
 Stevens v. Crane, 597. 
 Stevens v. Cunningham, 126. 
 Stevens v. Hush, 83, 169. 
 Stevens v. Meserve, 433, 435. 
 Stevens v. Stevens, 262. 
 Stevens v. Story, 175. 
 Stevenson v., Gray, 38, 39, 67, 69. 
 Stevenson v. Morris, 109. 
 Stevenson v. Stevenson, 13. 
 Stevenson's Heirs v. McReary, 50. 
 Steves V. Smith, 44. 
 Stewart v. Bailey, 439. 
 Stewart v. Crump, 413. 
 Stewart v. Howe, 521. 
 Stewart v. Lewis, 331. 
 Stewart v. Parr, 469. 
 Stewart v. Stewart, 248, 253, 259. 
 Stewart v. Swartz, 337. 
 Stewart v. Weiser Lumber Co., 203. 
 Sticken v. Schmidt, 211. 
 Stifel's Union Brewing Co. v. Saxy, 
 
 128, 147, 148. 
 Stiles v. Hawkins, 152. 
 Stiles V. Stiles, 260. 
 Stilley V. Folger, 217. 
 Stilphen v. Stilphen, 197. 
 Stilwell V. Mills, 458. 
 Stinson v. Leary, 450. 
 
CASES CITED 
 [The figures refer to pages] 
 
 733 
 
 Stinson v. Pickering, 469. 
 
 Stittgen, In re, 461. 
 
 Stitzel V. Farley, 543. 
 
 Stocket V. Holliday, 231. 
 
 Stockstill V. Bart, 151. 
 
 StofEal V. Jarvis, 147. 
 
 Stoffer V. Stoffer, 258. 
 
 Stoker v. Gowans, 464. 
 
 Stokes V. Anderson, 240, 276. 
 
 Stokes V. Brown, 498. . 
 
 Stokes V. Payne, 437. 
 
 Stokes V. Stokes, 32, 59, 264. 
 
 Stoltz V. Doerlng, 45, 52. 
 
 Stone V. Bancroft, 602. 
 
 Stone V. Carr, 323. 
 
 Stone V. Damon, 554. 
 
 Stone V. Dennlson, 482. # 
 
 Stone V. Duffy, 244, 327, 409. 
 
 Stone V. Hills, 647. 
 
 Stone V. Pulsipher, 356. 
 
 Stone V. State, 462. 
 
 Stone V. Stone, 332. 
 
 Stone V. Tyack, 182. 
 
 Stone V. Wilbern, 538. 
 
 Stone V. Wolfe, 494. 
 
 Stoneburner v. Stoneburner, 282, 284. 
 
 Stone-Webster Engineering Corpora- 
 tion V. Collins, 611. 
 
 Stork V. Charles Stolpher Cooperage 
 Co., 609. 
 
 Storms V. Storms, 286. 
 
 Storrs V. Utica, 655. 
 
 Story V. Downey, 104, 109. 
 
 Story & Clark Piano Co. v. Davy, 509, 
 516. 
 
 Stotts V. Leonhard, 507. 
 
 Stoudt V. Shepherd, 382. 
 
 Stoughton's Appeal, 436. 
 
 Stout V. Kansas City Terminal B. Co., 
 112. ' 
 
 Stoutenborough v. Rammel, 85, 172, 
 173. 
 
 Stovall V. Johnson, 364. 
 
 Stover V. Boswell's Heir, 307, 308. 
 
 Stowe V. Heywood, 385. 
 
 Stowers v. HoUis, 479. 
 
 Straight v. McKay, 86, 87. 
 
 Strain v. Hinds, 475, 505. 
 
 Strang v. People, 94. 
 
 Stratton v. Wilson, 224. 
 
 Straus V. Straus, 254. 
 
 Strauss v. Canty, 155. 
 
 Strauss v. Meertief, 586, 597, 598. 
 
 Strarss v. Strauss, 290. 
 
 Strawbridge v. Wolff, 83. 
 
 Street R. Co. v. Bolton, 623. 
 
 Strode v. Magowan's Heirs, 62, 296. 
 
 Stroebe.v. Fehl, 142. 
 
 Strohl V. Levan, 335. 
 
 Strohm v. People, 462. 
 
 Strom V. Postal Telegraph Cable Co., 
 
 638. 
 Strom V. Strom, 105. 
 Strong V. Beroujon, 430. 
 Strong V. Foote, 484. 
 Strong V. Moe, 415. 
 Strong V. Railroad Co., 620. 
 Stroup V. State, 450. 
 Strouse V. Leipf, 104. 
 Stuart V. Bute, 442. 
 Studabaker v. Faylor, 541. 
 Studebaker Bros. Mfg. Co. v. De 
 
 Moss, 326. 
 Studwell V. Shapter, 490, 527. 
 Stull's Estate, In re, 70, 72. 
 Stumm V. Hummel, 122. 
 Sturges & Burn Mfg. Co. v. Beaucamp, 
 
 462. 
 Sturgis V. Sturgis, 39, 69, 70, 71. 
 Sturm V. Sturm, 81. r 
 
 Sturtevant v. Starin, 174. 
 Sturtevant v. State, 347. 
 Stutz v. Armour, 629t 
 Sudler v; Sudler, 407. 
 Sullivan, Case of, 404. 
 Sullivan v. Flynn, 542. 
 Sullivan v. Grand Lodge, K. P., 64. 
 Sullivan v. Horgan, 579. 
 Sullivan v. Railroad Co., 619, 622, 623. 
 Sullivan v. Sullivan, 277. 
 Sultan V. Misrahi, 176. 
 Sultzbach v. Smith, 336. 
 Sumey v. Craig Mountain Lumber Co., 
 
 575, 634. 
 Summers v. Phenix Ins. Co., 583, 584. 
 Summers v. Summers, 264. 
 Summerville v. Summerville, 42. 
 Summs V. Snare & Triest Co., 301. 
 Sumner v. Nevin, 602. 
 Sumner v. Sumner, 239, 240. 
 Sunderland, In re, 320. 
 Sunter v. Sunter, 419. 
 Superior Coal & Mining Co. v. Kaiser, 
 
 617, 618. 
 Support of Minor Children, In re, 327. 
 Supreme Tent v. McAllister, 42. 
 Surber v. Surber, 261. 
 Sussdine, Case of, 641. 
 Sutcliffe V. Atlantic Mills, 579. 
 Suter V. Suter, 50. 
 SutlifC V. Forgey, 564. 
 Suttle V. Choctaw, O. & G. R.^Co., 619. 
 Sutton V. Chtewynd, 220. 
 Sutton V. Des Moines Bakery Co., 610. 
 Sutton V. Heinz] e, 487. 
 Sutton v.. Huffman, 370, 383. 
 Sutton V. Warren, 68, 69. 
 Suydam v. Suydam, 266. 
 
734 
 
 CASES CITED 
 [THie figures refer to pages] 
 
 Svanda v. Svanda, 270. 
 
 Svendsen's Estate, In re, 38, 39, 47, 
 
 48, 53. 
 Svenson v. Svenson, 11. 
 Swain v. Duane, 186. 
 Swan V. Dent, 456. 
 Swan V. State, 559. 
 Swan V. Walden, 149. 
 Swarens v. Swarens, 345. 
 Swartwood v. Chance, 538. 
 Swartwout v. Oaks, 458. 
 Swartwout v. Swartwout, 452. 
 Swasey v. Vanderheyden's Adm'r., 482. 
 Sweeney v. Taylor Bros., 150, 155. 
 Sweet V. Coal Co., 610. 
 Sweet V. Crane, 854. 
 Sweet V. Sweet, 453. 
 Sweetser Pembroke & Co., In re, 595. 
 Swett V. Penrice, 175, 179. 
 Swick V. Coleman, 317. 
 Swiercz v. Illinois Steel Co., 613, 614. 
 Swift, In re, 45.3. 
 Swift V. Bennett, 482. 
 Swift V. Luce, 203, 208. 
 Swift & Co. V. Johnson, 361. 
 Swindall v. Swindall, 431. 
 Swingle v. Swingle, 216. 
 Swisher v. McWhinney, 459. 
 Switchmen's Union of North America 
 
 V. Gillerman, 39. 
 Switzer v. Switzer, 240. 
 Swoboda v. Ward, 609. 
 Swope V. Chambers, 445. 
 iSword V. Keiths 359. 
 Swygart v. Willard, 560. 
 Syck V. Hellier, 492, 501. 
 Sykes v. Halstead, 265. 
 Sykes v. Lawlor, 374. 
 Sylvis V. Sylvis, 255. 
 Symons v. Road Directors for Allegany 
 
 County, 654. 
 Szlauzis V. Szlauzis, 35. 
 
 T. V. D., 30. 
 
 T. V. M. L. R., 30. 
 
 Tabb V. Archer, 215, 216, 219, 220, 225. 
 
 Taber v. Taber, 277. 
 
 Taft V. Se"argeant, 505. 
 
 Tagg V. McGeorge, 613. 
 
 Taggard v. Innes, 546. 
 
 Taglinette v. Sydney Worsted Co., 636, 
 
 639. 
 Tait V. Tait, 12. 
 Talbot V. Bowen, 467. 
 Talley V. Talley, 286. 
 Tallmndge v. Qrannis, 141. 
 Tallman v. Jones, 163, 164. 
 
 Tank's Guardianship, In re, 404. 
 
 Tanner v. Skinner, 330. 
 
 Tanner's Estate, In re, 419. 
 
 Tanton v. Tanton, 63. 
 
 Tarbell v. Tarbell, 216. 
 
 Tarrant v. Tarrant, 268. 
 
 Tartt V. Negus, 8. 
 
 Tasker v. Shepherd, 594. 
 
 Tasker t. Stanley, 113, 115. 
 
 Tatterson v. Manufacturing Co., 584. 
 
 Tawney v. Crowther, 225, 226. 
 
 Taylor, Ex parte, 514. 
 
 Taylor, In re, 405. 
 
 Taylor v. Albion Lumber Co., 566, 567. 
 
 Taylor v. Bemiss, 428, 430. 
 
 Taylor v. Brown, 420. 
 
 Taylor v. Calvert, 419. 
 
 Taylor v. Carpenter, 566. 
 
 Taylor v. Daniel, 380. 
 
 Taylor v. Green, 99. 
 
 Taylor v. Hemingray, 457. 
 
 Taylor v. Hite, 426, 441. 
 
 Taylor v. Jeter, 393. 
 
 Taylor v. Kellogg, 426, 436. 
 
 Taylor v. Laird, 575, 576. 
 
 Taylor v. Leonard, 466. ' 
 
 Taylor v. Meads, 186, 188. 
 
 Taylor v. Mechanics' Sav. Bank, 355. 
 
 Taylor v. Minigus, 164. 
 
 Taylor v. Paterson, 605. 
 
 Taylor v. Philips, 437. 
 
 Taylor v. Railway Co., 629. 
 
 Taylor v. Rountree, 184. 
 
 Taylor v. Staples, 388. 
 
 Taylor v. Stewart, 336. 
 
 Taylor v. Superior Court, 429, 543. 
 
 Taylor v. Swett, 50. 
 
 Taylor v. Taylor, 32, 48, 49, 56, 82, 
 
 84, 225, 258, 262, 264, 346, 389, 391. 
 Taylor v. Wands, 164. 
 Taylor v. White, 56. 
 Taylor Iron & Steel Co. v. Nichols, 
 
 603. 
 Teagarden v. McLaughlin, 335, 336. 
 Tebbs V. Carpenter, 428. 
 Teckenbrock v. McLaughlin, 202. 
 Tedder v. Tedder, 49. 
 TeEEt V. TefEt, 32, 57, 60. 
 Teipel v. Vanderweier, 420. 
 Telinko v. Pittsburg Coal Co., 615. 
 Temple v. State, 161. 
 Tennessee Cent. R. Co. v. Doak. 367, 
 
 369. 
 Tenney v. Evans, 412. 
 Terhune v. Com., 558. 
 Terkelsen v. Petersen, 240. 
 Terrky v. Terrky, 23. 
 Terry v. Hutchinson, 370, 372. 
 Terry v. Johnson, 345. ' 
 
CASES CITED 
 
 [the figures refer to pages] 
 
 735 
 
 Teter v. Teter, 38, 39, 42, 44, 49, 51. 
 Texarkana Lumber Co. v. Lennard, 
 
 596. 
 Texarkana Telephone Co. v. Burge, 
 
 110. 
 Texas & P. R. Co. v. Nichols, 632. 
 Texas & P. R. Co. v. Rogers, 619. 
 T. G. Northwall Co. v. Osgood, 205. 
 Thacher v. Dinsmore, 412. 
 Thacher v. Phinney, 142. 
 Thacker v. Henderson, 438. 
 Thacker Coal & Coke Co. v. Burke, 
 
 644. 
 Thackrah v. Haas, 556. 
 Thaw, In re, 535. 
 Thaw V. Ritchie, 439. 
 Thayer v. Denver & R. G. R. Co., 607. 
 Thayer v. Railroad Co., 628. 
 Thayer v. White, 332. 
 Thewlis' Estate, In re, 62. 
 Thiesing v. Thiesi,ng, 351. 
 Thigpen v. Thigpen, 309. 
 Thing V. Libbey, 504. 
 Third Nat. Bank v. Poe, 233. 
 Third Nat. Bank v. Tierney, 211. 
 Thomas, Succession of, 32, 63, 64. 
 Thomas v. Bennett, 430. 
 Thomas v. Brown, 240. 
 Thomas v. Burrus, 455. 
 Thomas v. Carter, 553. 
 Thomas v. Chicago, 129, 142. 
 Thomas v. Dike, 517. 
 Thomas v. Hatch, 584. 
 Thomas v. Hornbrook, 232. 
 Thomas v. James, 35, 44, 45, 46, 63. 
 Thomas v. Roberts, 404. 
 Thomas v. Sheppard, 140. 
 Thomas v. State, 551, 558. 
 Thomas v. Thomas, 33, 62, 93, 254, 279, 
 
 327, 400. 
 Thomasson v. Boyd, 499, 501. 
 Thomond v. Suffolk, 183, 184. 
 Thompson v. Boardman, 436. 
 Thompson v. Brown, 171. 
 Thompson v. Havelock, 592. 
 Thompson v. Howard, 385. 
 Thompson v. Lay, 504. 
 Thompson v. Metropolitan St. B. Co., 
 
 108. 
 Thompson v. Millar, 383. 
 Thompson v. Minnich, 162, 205. 
 Thompson v. Ross, 371. 
 Thompson v. Thompson, 10, 40, 68, 106, 
 
 250, 259, 291. 
 Thompson v. United Laboratories Co., 
 
 368. 
 Thompson v. Wilkinson, 161. 
 Thormaehlen v. Kaeppel, 528. 
 Thorn v. Anderson, 200. 
 
 Thornburn v. Doscher, 145. 
 
 Thorndike v. Hinckley, 455. 
 
 Thorne v. Farrar, 14. 
 
 Thome v. Kathan, 177. 
 
 Thome's Will, In re, 311. 
 
 Thornton v. Grand Trunk-Milwaukee 
 Car Ferry Co., 638. 
 
 Thorp V. Thorp, 67, 70, 72. 
 
 Thorpe V. Shapleigh, 176.. 
 
 Thrall Hospital v. Caren, 180. 
 
 Threewits v. Threewits, 279. 
 
 Thrift V. Payne, 591. , 
 
 Thrupp V. Fielder, 498. 
 
 Thum Co. V. Floczynski, 603. 
 
 Thurber Brick Co. v. Matthews, 626. 
 
 Thurlow V. Gilmore, 498. 
 
 Thurlow y. Massachusetts, 568. 
 
 Thurman v. State, 550. 
 
 Thurston v. Thurston, 289. 
 
 Thurston v. Tubbs, 468. 
 
 Thyng v. Railroad Co., 632. 
 
 Thyssen v. Davenport Ice & Cold Stor- 
 age Co., 652. 
 
 Tibbetts v. Gerrish, 498. 
 
 Tiemeyer v. Turnquist, 209. 
 
 Tieman v. Binns, 223, 224. ' 
 
 Tierney v. Railway Co., 626, 627. 
 
 Tifft V. TifCt, 335. 
 
 Tigert v. Wells, 309. 
 
 Tillery v. Land, 167, 475, 515. 
 
 Tilley v. Harrison, 315. 
 
 Tilley v. Rockingham County Light & 
 Power Co., 616, 625. 
 
 Tillman v. Shackleton, 163, 207. 
 
 Tillotson V. Currin, 381. 
 
 Tillotson V. McCrillis, 359. 
 
 Tilton V. Tilton, 217, 223, 268, 279. 
 
 Timberlake v. Thayer, 604. 
 
 Timerson v. Timerson, 278. 
 
 Times-Democrat Pub. Co. v. Mozee, 
 109. 
 
 Timmann v. Timmann, 296. 
 
 Timmings v. Timmings, 275, 279. 
 
 Tipping v. Tipping, 131. ' 
 
 Tipton v. Tipton, 259, 263. 
 
 Titcomb V. Vantyle, 538. 
 
 Title Guaranty & Surety Co. v. Sllnk- 
 er, 444. 
 
 Title Ins. & Trust Co. v. IngersoU, 81. 
 
 Tittlebaum v. Boehmcke, 384. 
 
 Tittman v. Green, 445. 
 
 Tobey v. Wood, 489, 499, 500, 501, 504. 
 
 Tobin V. Bruce, 392. 
 
 Tobin V. Spann, 466, 516. 
 
 Todd V. Clapp, 489, 501, 504. 
 
 Todd v. Lee, 212, 213. 
 
 Todd V. Stoakes, 178. 
 
 Todd V. Todd, 258, 272, 276. 
 
 Todd V. Weber, 306. 
 
736 
 
 CASES CITED 
 [The' figures refer to pages] 
 
 Toledo, W. & W. R. Co. v. Grable, 521, 
 
 523. 
 Toledo, W. & W. R. Co. v. Harmon, 
 
 651. 
 Toledo, W. & W. R. Co. v. Ingraliam, 
 
 6or. 
 
 Tolor v. Marion County Lumber Co., 
 506. 
 
 Toman, Estate of, 418. 
 
 Tomczek v. Wieser, 475, 489, 492, 507. 
 
 Toogood V. Spyring, 601. 
 
 Topping V. Wlndley, 446. 
 
 Torre v. Summers, 121. 
 
 Torrance's Estate, In re, 8. 
 
 Torrens v. Campbell, 359. 
 
 Torry v. Black, 430, 436. 
 
 Touchy V. Gulf Land Co., 438. 
 
 Tourney v. Sinclair, 241. 
 
 Towery v. McGaw, 81. 
 
 Towle V. Dresser, 475, 493, 510. 
 
 Town of Canaan v. Avery, 298. 
 
 Town of Craftsbury v. Greensboro, 
 360. 
 
 Town of Hudson v. Hills, 305, 306. 
 
 Town of Londonderry v. Chester, 38, 
 39, 44. 
 
 Town of Mountholly v. Andover, 57. 
 
 Town of Northfleld v. Brookfield, 360. 
 
 Town of Poultney v. Glover, 361. 
 
 Town of Rockingham v. Mount Holly, 
 301. 
 
 Town of Roxbury v. Bridgwater, 
 62, 63. 
 
 Towne v. Wiley, 527. 
 
 Townsend v. Huntzinger, 159, 161, 203. 
 
 Townsend v. Kendall, 409, 417. 
 
 Townsend v. Langles, 617. 
 
 Townsend v. Tallant, 445. 
 
 Townsend v. Townsend, 264. 
 
 Townsley v. Chapin, 167. 
 
 Townsley v. Moore, 580. 
 
 Tracy v. Keith, 157. 
 
 Tracy V. Roberts, 439, 440. 
 
 Trader v. Jarvis, 479. 
 
 Trader v. Lowe, 420, 504. 
 
 Trammell v. Trammell, 518. 
 
 Tramwell v. Vaughan, 3. 
 
 Trapnell v. Conklyn, 199, 200, 359, 365. 
 
 Trask v. Patterson, 141. 
 
 Trask v. Trask, 10. 
 
 Travers v. Hartmann, 369. 
 
 Travers v. Reinhardt, 38, 42, 68. 
 
 Travis v. Sitz, 186, 195. 
 
 Travis v. State, 462. 
 
 Trayer v. Setzer, 301, 306. 
 
 Treasurer of Insane Hospital v. Bel- 
 grade, 534. . 
 
 TreflBnger v. M. Groh's Sons, 577. 
 Trenchard v. Trenchard, 243, 250. 
 
 Trevor v. Trevor, 219. 
 
 Trickey v. Clark, 622. 
 
 Trieber v. Stover, 163. 
 
 Trigg V. Trigg, 284. 
 
 Trimble v. Dodd, 331. 
 
 Trimble v. Spiller, 368, 375. 
 
 Trinity County Lumber Co. v. Conner, 
 
 356. 
 Tritt V. Colwell, 134. 
 Tritt's Adm'r v. Colwell's Adm'r, 131, 
 
 132, 134. 
 Trotter v. Trotter, 82. 
 Trotter Bros. v. Downs, 212. 
 Trow V. Thoinas, 374. 
 Troy Fertilizer Co. v. Logan, 597. 
 True V. Ranney, 18, 60, 67, 69. 
 Trueblood v. Trueblood, 473. 
 Trueman v. Hurst, 482. 
 Truitt V. Battle Creek, 147. 
 Trust Co. V. Sedgwick, 99. 
 Trustee of Elizabeth Speer's Memorial 
 
 Hospital V. Makibben's Guardian, 
 
 445. 
 Tubb V. Harrison, 325'. 
 Tucke V. Buchholz, 449. 
 Tucker v. Gordon, 133. 
 Tucker v. McKee, 411. 
 Tucker v. Moreland, 473, 479, 502, 505, 
 
 506, 511. 
 Tucker v. Preston, 576, ?05. 
 Tucker v. Tucker's Adm'r, 196. 
 Tudhope V. Potts, 456. 
 TuUer v. Voght, 649. 
 Tullis V. Hassell, 590. 
 Tully, In re, 403, 404, 405. 
 Tune V. Cooper, 128. 
 Tunison v. Chamblin, 489, 506. 
 Tupper V. Cadwell, 486, 487. 
 Turkey Foot Lumber Co. v. Wilson, 
 
 609. 
 Turman Cooperage Co. v. Shelton, 468. 
 Turnbull v. TurnbuU, 27T. 
 Turner, In re, 404, 463, 464. 
 Turner v. Buchsbaum, 609. 
 Turner v. Davenport, 126, 127, 200. 
 Turner v. Estes, 115, 117. 
 Turner v. Plagg, 412, 456. 
 Turner v. Gaither, 484, 504. 
 Turner v. Heavrin, 121, 123. 
 Turner v. Mason, 590. 
 Turner v. Meyers, 19. 
 Turner v. Rusk, 544. 
 Turner v. Smithers, 572. 
 Turner v. Stewart, 466, 491. 
 Turner v. Street, 423. 
 Turner v. Trisby, 481. 
 Turner v. Turner, 348, 389. 
 Turner v. Williams, 63. 
 Turney v. Mobile & O. R. Co., 513. 
 
CASES CITED 
 [Tbe figures refer to pages] 
 
 737 
 
 Turtle V. Muncy, 125, 130. 
 
 Turton v. Turton, 134. 
 
 Tuttle V. Hoag, 163. 
 
 Tuttle V. Shutts, 160. 
 
 Tyler, In re, 436. 
 
 Tyler v. Andrews, 28, 59, 67. 
 
 Tyler v. Gallop's Etetate, 501, 518. 
 
 Tyler v. Tyler, 70. 
 
 Tyrrell v. Hope, 187. 
 
 u 
 
 Udell V. Kenney, 134, 135, 136. 
 Uecker v. Koehin,' 503, 507. ' 
 Uecker v. Zuercher, 535. 
 Ublmann v. Uhlmann, 251. 
 Ulrich V. Arnold, 576, 577. 
 Ulrich V. Hower, 589. 
 TJltz V. Upham, 316. 
 Umbenhour v. Umbenhour, 46. 
 TJmlauf V. Umlauf, 351. 
 Unbenhower v. Labus, 43. 
 OnderhiU v. Mayer, 81, 82, 83, 210. 
 Underwood v. Deckard, 466. 
 Unger v. Mellinger, 218, 235. 
 Union Cotton Mills v. Harris, 627. 
 Union Pac. E. Co. v. Erickson, 632. 
 Union Pac. R. Co. v. Fort, 619. 
 Union Pac. R. Co. v. McDonald, 521, 
 
 522. 
 Union Savings & Trust Co. v. Man- 
 
 ney, 152. 
 Union State Bank of Harvard v. Mc- 
 
 Kelvie, 161. 
 United Oil & Refining Co. v. Grey, 588, 
 
 592 
 U. S. v. Bainbridge, 356, 478. 
 U. S. V. Baltimore & O. R. Co., 575. 
 U. S. V. Behrendsohn, 463, 529. 
 U. S. V. Bell, 561. 
 U. S. V. Blakeney, 478. 
 U. S. V. Chicago, M. & P. S. Ry. Co., 
 
 602. 
 U. S. V. Denver & R. G. R, Co., 602. 
 U. S. v. De Walt, 269. 
 U. S. v. Drew, 557. 
 U. S. V. Evangelista, 50. 
 V- S. V. Green, 347, 348, 350. 
 U. S. V. Hall, 394. 
 U. S. V. Lee Sa Kee, 42. 
 U. S. V. McGlue, 558. 
 U. S. V. Terry, 92. 
 U. S. V. Thierichens, 562. 
 U. S. V. Villafuerte, 50. 
 U. S. V. Wright, 461, 521. 
 U. S. Cement Co. v. Cooper, 610. 
 U. S. Fidelity & Guaranty Co. v. Hall, 
 
 330. 
 
 TrFF.P.& D.Rel.(3d Ed.)— 47 
 
 U. S. Fidelity & Guaranty Co. v. Han- 
 sen, 458. 
 
 U. S. Fidelity & Guaranty Co. v. I^ee, 
 199. 
 
 U. S. Fidelity & Guaranty Co. v. State,' 
 428.' 
 
 U. S. Fidelity & Guaranty Co. v. Wick- 
 line, 636. 
 
 U. S. Inv. Corp. v. Ulrickson, 467. 
 
 U. S. Mortgage Co. v. Sperry, 437. 
 
 U S. Rolling Stock Co. v. Chadwick, 
 617. 
 
 U. S. Trust Co. v. Hoyt, 316. 
 
 U. S. Wind Engine & Pump Co. v. 
 Butcher, 618. , 
 
 Unity Joint-Stock Mut. Banking Ass'n, 
 528. 
 
 University of Michigan v. McGuckin, 8, 
 42, 51, 52. 
 
 University of North Carolina v. Mark- 
 ham, 309. 
 
 Unsoeld v. Unsoeld, 269. 
 
 Uocker v. Koehn, 507. 
 
 Uphoff V. McCormick, 387. 
 
 Upstone V. People, 558. 
 
 Usher v. Western Union Tel. Co., 647. 
 
 Utah Consol. Mining Co. v. Paxton, 
 620. 
 
 Utterton v. Tewsh, 277. 
 
 Uy Soo lam v. Tan Unchuan, 501. 
 
 V 
 
 Vaiden v. Stubblefield's Eix'r, 421. 
 
 Vail V. Meyer, 209, 212. 
 
 Valentin! v.. Canali, 514. 
 
 Vallance v. Bausch, 194. 
 
 Vallandingham v. Johnson, 506. 
 
 Valleau v. Valleau, 248. 
 
 Vallery v. State, 601. ' 
 
 Valois V. Gardner, 172. 
 
 Van Aernam v. Van Aernam, 299. 
 
 Van Alst v. Hunter, 554. 
 
 Vanata v. Johnson, 196. 
 
 Vanatta v. Carr, 360. ' 
 
 Van Beuren's Estate, In re, 406. 
 
 Vance, In re, 393. 
 
 Vance v. Calhoun, 362. 
 
 Vance v. Word, 527. 
 
 Vanderbilt v. Turnpike Co., 649. 
 
 Vanderburg v. Williamson, 439. 
 
 Van Derheyden v. Van Derheyden, 
 
 431. 
 Van Derlyn v. Mack, 317. 
 Van Deusfen v. Sweet, 539. 
 Van Dusan v. Van Dusan, 53. 
 Van Dusen v. Letellier, 609. 
 Van Duzer v. Van Duzer, 140, 141, 253. 
 Van Epps v. Van Deusen, 135, 137, 401. 
 
738 
 
 CASES CITED 
 [Tie figures refer to pages] 
 
 Van Fossen v. State, 244. 
 
 Van Guysling v. Van Kuren, 552. 
 
 Van Horn v. Freeman, 383. 
 
 Van Horn v. Hann, 540. 
 
 Van Horn v. Keenan, 555. 
 
 Van Inwagen v. Van Inwagen, 270. 
 
 Van Lonkhuyzen v. Daily News Co., 
 562. 
 
 Van Matre v. Sankey, 320. 
 
 Vannett v. Cole, 103. 
 
 Van Orsdal v. Van Orsdal, 290. 
 
 Vanover v. Steele, 296. 
 
 Van Patton v. Beals, 542. 
 
 Vansickle v. Wells, Fargo & Co., 127. 
 
 Van Tassel v. State, 307. 
 
 Van Tuyl v. Van Tuyl, 44, 45, 46, 48, 
 49, 52. 
 
 Vanuxem v. Bostwick, 595. 
 
 Van Vacter v. McKilllp, 111, 120. 
 
 Van Valklnburgh v. Watson, 324, 481. 
 
 Van Voorhis v. Brintnall, 67. 
 
 Van Walters v. Board of Children's 
 Guardians of Marion County, 463. 
 
 Van Winkle v. Satterfield, 597. 
 
 Van Wyck v. Brasher, 555. 
 
 Variety Mfg. Co. v. Landaker, 647. 
 
 Varner, Appeal of,' 187. 
 
 Varney v. Young, 333, 359. 
 
 Vase V. Myott, 85. 
 
 Vason V. BelJ, 219, 424. 
 
 Vasse V. Smith, 524, 527. 
 
 Vaughan v. Rhodes, 385. 
 
 Veal V. Fortson, 497. 
 
 Vehue v. Pinkham, 517. 
 
 Vent V. Osgood, 473, 476, 492, 505, 516, 
 517. 
 
 Vercade v. Vercade, 261. 
 
 Verholf v. Van Houwenlengen, 122. 
 
 Vermilya v. Bunce, 458. 
 
 Verneuille, Succession of, 151. 
 
 Vernon v. Vernon, 220. 
 
 Verser v. Ford, 345, 346. 
 
 Vest y. Ktamer, 86, 87. 
 
 Vetten v. Wallace, 306. 
 
 Veverley, Case of, 537. 
 
 Vidalia Compress & Power Co. v. Ma- 
 thews, 592. 
 
 Viertel v. Viertel, 274, 275, 278. 
 
 Vigno V. Vigno, 32. 
 
 Village of Holcomb, In re, 147, 148. 
 
 Village of Montgomery v. Robertson, 
 611. 
 
 Villard v. Robert, 415. 
 
 Villareal v. Mellish, 344. 
 
 Villescas v. Arizona Copper Co., 150. 
 
 Vilter Mfg. Co. v. Kent, 614, 
 
 Vilter Mfg. Co. v. Otte, 681. 
 
 Vincent v. Ireland, 126, 200. 
 
 Vincent v. Starks, 429. 
 
 Vindicator Consol. Gold Mining Co. v. 
 
 Firstbrook, 621. 
 Vine V. Saunders, 96. 
 Vinegar Bend Lumber Co. v. Lef twich, 
 
 211. 
 Vineyard v. Heard, 396. 
 Vinson v. State, 530. 
 Vinson v. Willingham Cotton Mills, 
 
 607. 
 Vinton v. Beamer, 146. 
 Vinton v. Schwab, 608, 615. 
 Viou V. Brooks-Scanlon Lumber Co., 
 
 620. 
 Virgin v. Marwlck, 316. 
 Virtue v. People, 77. 
 Vischer v. Vischer, 246. 
 Vizonneau v. Pegram, 187. 
 Vocht V. Kuklence, 103, 104. 
 Voessing v. Voessing, 430.' 
 Vogel V. American Bridge Co., 624. 
 Vogel V. Zuercher, 539. 
 Vohs V. Shorthill & Co., 613. 
 Voltz V. Voltz, 447. 
 Vondal v. Vondal, 11. 
 Von der Horst v. Von der Horst, 320. 
 Von Glahn v. Von Glahn, 256. 
 Von Heyne v. Tompkins, 590, 592, 593. 
 Voorhees v. Presbyterian Churehj 229. 
 Voorhees v. Voorhees, 52, 53. 
 Voss V. Sylvester, 160. , 
 Voss V. Voss, 243. 
 Vessel V. Cole, 376, 380, 383, 384. 
 Votaw V. Votaw, 253. 
 Vreeland v. Vreeland, 64, 295. 
 Vreeland's Ex'rs v. Ryno's Ex'r, 129, 
 
 130. 
 Vusler V. Cox, 175. 
 
 w 
 
 W. V. H., 29. 
 
 Wabash R. Co. v. Hassett, 631. 
 
 Wabash R. Co. v. McDaniels, 358, 611. 
 
 Wackerle v. People, 452. 
 
 Wade V. Kalbfleisch, 3. 
 
 Wade V. Lobdell, 444. 
 
 Wade V. Pulsifer, 448. 
 
 Wade V. Wade, 150, 151, 152. 
 
 Wadkins v. Producers' Oil Co., 151. 
 
 153. 
 Wadlelgh v. Newhall, 344, 346. 
 Wadsworth v. Sharpsteen, 556. 
 Wadsworth v. Wadsworth, 564. 
 Wagener v. Bill, 92. 
 Waggoner v. Miller, 309. 
 Wagner, In re, 398. 
 Wag-ner v. Mutual Life Ins. Co. of 
 
 New York, 203. 
 Wagner t. Nagel, 172. 
 
CASES CITED 
 [The ftgurea refer to pages] 
 
 739 
 
 Wagner v. Varner, 316, 317. 
 
 Wagner v. Wagner, 253, 266. 
 
 Wagoner v. State, 531. 
 
 Wagstaff V. Smith, 186. 
 
 Wailing v. Toll, 486. 
 
 Wainwright v. Wilkinson, 468, 473. 
 
 Wait V. Maxwell, 539, 542. 
 
 Wakefield v. Boston Coal Co., 647. 
 
 Wakefield v. Mackay, 10, 11. 
 
 Wakeham v. Barker, 599. 
 
 Waldrom v. Waldrom, 410. 
 
 Waldron, Case of, 347. 
 
 Waldron v. Waldron, 120, 255. 
 
 Waldstein v. Barnet't, 419. 
 
 Wales V. Coffin, 146, 148. " 
 
 Wales V. Miner, 121. 
 
 Walkenhorst v. Lewis, 470. 
 
 Walker, Case of, 142. 
 
 Walker v. Association, 602. 
 
 Walker v. Cronin, 643, 644. 
 
 Walker v. Davis, 524. 
 
 Walker v. Denison, 583. 
 
 Walker v. Farmers' & Merchants' 
 
 State Bank of Winters, 201. 
 Walker v. Houghteling, 87. 
 Walker v. Klapp, 336. 
 Walker v. Laighton, 88, 175, 176, 177, 
 
 178, 260, 262. 
 Walker v. Kearny, 107. 
 Walker v. Simpson, 174, 181. 
 Walker v. Thompson, 426, 436, 443. • 
 Walker v. Walker, 244, 245, 262, 264, 
 
 426. 
 Walker v. Walker's Ex'r, 240. 
 Walker v. Wetherell, 415. 
 Walker v. Winn, 539. 
 Walker's Adm'r v. Walker's Adm'r, 
 
 132, 
 Walker's Estate, In re, 31, 297. 
 Wall V. McEnnery's Estate, 319. 
 Wall V. Stanwick, 401, 418. 
 Wall V. Tomlinson, 133. 
 Wallace v. Burden, 130. 
 Wallace v. Clark, 383. 
 Wallace v. Cox, 363. 
 Wallace v. De Toung, 602. 
 Wallace v. Floyd, 577. 
 Wallace v. Holmes, 440. 
 Wallace v. Leroy, 484, 486, 509. 
 Wallace v. McDaniel, 36. 
 Wallace v. Morss, 528. 
 Wallace v. Noland, 317. 
 Wallace v. Reddick, 390. 
 Wallace v. Swcpston, 458. 
 Wallace v. Wallace, 186, 271, 295, 296, 
 
 297. 
 Wallace's Lessee v. Lewis, 494, 502 
 
 507. 
 Waller t. Armistead's Adm'rs, 448. 
 
 Walli, Appeal of, 444. 
 
 Wallln V. Arcadia & B. R. R. Co., 621. 
 
 Wallin V. Highland Park Co., 484. 
 
 Walling, In re, 457. 
 
 Wallingsford v. Allen, 231, 232, 233. 
 
 Wallis V. Bardwell, 487. 
 
 Walls V. State, 24, 25, 57. 
 
 Walmesley v. Walmesley, 255. 
 
 Walsh V. Young, 512. 
 
 Waltermire v. Waltermire, 252, 253. 
 
 Walters v. Chicago, R. I. & P. R. Co., 
 
 523. 
 Walters v. Ebrall, 435. 
 Walther v. American Paper Co., 639. 
 Walton V. Malcolna, 541. 
 Walton V. Walton, 32, 51, 262, 268, 390. 
 Walton V. Yturria, 315. 
 Walworths' Estate, In re, 317. 
 Wambold v. Vick, 359, 365. 
 Wamsley v. Lindenberger, 476. 
 Wandersee v. Wandersee, 351. 
 Wangler Boiler & Sheet Metal Works 
 
 Co. V. Industrial Commission, 636, 
 
 637. 
 Wanisch v. 'Wuertz,'516. 
 Wann v. Wann, 351. ' 
 Wapello County v. Bikelberg, 536. 
 Waples V. Hastings, 473. 
 Warburton v. White, 155. 
 Ward, In re, 413, 446. 
 Ward V. Ames, 587. 
 Ward V. Anderson, 503, 514. 
 Ward V. Dulaney, 18, 21. 
 Ward V. Laverty, 51S, 519. 
 Ward v. Rogers, 546. 
 Ward V. Roper, 409. 
 Ward v.'Ward, 264, 345, 500, 515. 
 Ward's Estate, In re, 314. 
 Ware v. Cartledge, 476. 
 Ware y. Coleman, 406. 
 Ware v. Polhill, 434. 
 Ware v. Ware, 428. 
 Ware v. Ware's Adm'r, 132. 
 Waring v. Darnall, 429. 
 Waring v. Waring, 256. 
 Waring's Will, In re, 398. 
 Warner v. King, 318. 
 Warner v. Warner, 224, 260, 266, 278, 
 
 279. 
 Warner's Estate, In re, 153. 
 Warren v. Crow, 211. 
 Warren v. Norguard, 336. 
 Warren v. Warren, 42, 120. 
 Warrehder v. Warrender, 2, 67. 
 Warth V. Jackson County Court, 109. 
 Warwick v. Cooper, 477. 
 Wasem v. Raben, 200. 
 Washabaugh v. Hall, 438. 
 Washaw v. Gimble, 347, 349, 352, 353. 
 
740 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Washburn v. Abrams, 385. 
 Wasbburn v. Gray, 212. 
 Washburn v. Hale, 130. 
 Washburn v. White, 315. 
 W;ashington University v. Finch, 568. 
 Washington & G. R. Co. v. McDade, 
 
 607. 
 Waterman v. Higgins, 282. 
 Wjaterman v. Wright, 451. 
 Wigiterman Lumber Co. v. Beatty, 615, 
 
 639. 
 W.iaters v. Ebrall, 435. 
 Waters v. Qray, 345. 
 Watlijns, Ex parte, 442. 
 Watkins v. Clark, 336. 
 W^tkins V. De Armond, 175, 179. 
 Watkins v. Lord, 121. 
 Watkins v. Watkins, 3, 226, 227, 244. 
 "Catkins v. Young, 391. 
 ■^atkins' Adm'rs v. State, 445. 
 Watkins & Thurman v. Napier, 582. 
 'Vt'atson, Ex parte, 463. 
 Watson V. Cross, 483. 
 VSfatson v. Peebles, 495, 501. 
 Watson V. Euderman, 476, 492, 497. 
 Watson V. Warnock, 404. 
 Watson V. Watson, 223, 259. 
 Watson V. Wrightsman, 524. 
 Watt V. Allgood, 442. 
 Watt V. Smith, 536. 
 Watt V. Watt, 138. 
 Watters v. Watters, 20. 
 Watts V. Cook, 439. 
 Watts V. Dull, 312, 313. 
 Watts V. Gantt, 211. 
 Watts V. Hicks, 454, 469. 
 Watts V. Houston, 487. 
 Watts V. Ohio Valley Electric R. Co., 
 
 637, 638. 
 Watts V. Owens, 295, 296, 300. 
 Watts V. Snodgrass, 155. 
 Watts V. Watts, 77. 
 Watts, "Watts & Co. v. TJnione Aus- 
 
 triaca Di Navigazione, 567. 
 Waughop V. Waughop, 18. 
 Waxelbaum v. Limberger, 589. 
 Way V. R. Co., 618. 
 ■vfaymire v. Jetmore, 60. 
 Wayn« v. Lewis, 163. 
 Weatherall v. Weatherall, 51, 53. 
 Weatherford v. Weatherford, 52. 
 Wteathersbee v. Blanton, 416. 
 Weatherston v. Hawkins, 601. 
 Weaver v. Bachert, 379. 
 Weaver v. Glenn, 470. 
 Weaver v. Iselin, 368. 
 Weaver v. Jones, 474, 475. 
 Weaver v. Thornton, 444, 
 Weaver v. Ward, 546. 
 
 Webb V. England, 599. 
 
 Webb V. Harris, 468. 
 
 Webb V. Mcintosh, 316. 
 
 Webb V. Reagin, 510. 
 
 Webber v. Spannhake, 180. 
 
 Weber v. Bottger, 544. 
 
 Weber v. Doust, 464. 
 
 Weber v. Weber, 119. 
 
 Webstet V. Oonley, 441. 
 
 Webster v. Wadsworth, 413. 
 
 Webster v. Webster, 33. 
 
 Webster v. Woodford, 537, 538. 
 
 Weed V. Ellis, 430. 
 
 Weedman's Estate^ In re, 535, 
 
 Weedon v. Timbrell, 121. 
 
 Weeks v. Holmes, 357. 
 
 Weeks v. Merrow, 324. 
 
 Weeks v. Wilkins, 495. 
 
 Weems v. Bryan, 141. 
 
 Weese v. Tokum, 360. 
 
 Weidenhammer v. McAdams, 473. 
 
 Weidenhoft v. Primm, 44. 
 
 Weigand v. Weigand, 260, 266. 
 
 Weil V. Dry Dock, B. B. & B. R. Co., 
 
 523 
 Weill' V. Weill, 10. 
 Weingreen v. Beckton, 172. 
 Weir V. Marley, 352, 353. 
 Weis V. Bach, 216. 
 Weisberg v. Weisberg, 26. 
 Weise v. Supervisors, 577. 
 Weiserbs v. Weiserbs, 81, 83. 
 Weisker v. Lowenthal, 175, 179. 
 Weiss V. Coudrey, 470. 
 Weiss V. Weiss, 282, 351. 
 Welch V. Bunce, 492. 
 Welch V- Carlucci Stone Co., 618. 
 Welch V. Goodwin, 655. 
 Welch V. Welch, 275, 281, 349, 350, 
 
 351. 
 Weld V. Johnson Mfg. Co., 439. 
 Weller v. Baker, 125, 142. 
 Weller v. Suggett, 442. 
 Weller v. Weller, 270. 
 Wellesley v. Duke of Beaufort, 330, 
 
 344, 400, 404. 
 Wellesley v. Wellesley, 344, 418. 
 Wellman v. Wellman, 278. 
 Wells, In re, 314. 
 Wells V. Andrews, 442. 
 Wells V. Chaffln, 438. 
 Wells V. Fletcher, 58. 
 Wells V. Seixas, 495. 
 Wells V. Smith, 469. 
 Wells V. Steckleberg, 439. 
 Wells V. Stout, 240. 
 Wells V. Tyler, 131, 132. 
 Wells V. Wells, 461. 
 Wells' Estate, In re, 45, 51. 
 
CASES CITED 
 [The figures refer to pages] 
 
 741 
 
 Wendel v. Wendel, 10, 29. 
 
 Wenham v. State, 574. 
 
 Weimell v. Dowson, 368. 
 
 Wennlng v. Teeple, 64. 
 
 Weringer's Estate, In re, 182. 
 
 Werner, Appeal of, 483. 
 
 Werner v. Werner, 58. 
 
 Wertz V. Wertz, 19. 
 
 Wescott V. Upham, 457. 
 
 West V. Burke, 231. 
 
 West V. Gregg's Adm'r, 486, 487. 
 
 West V. Laraway, 212. 
 
 West V. Redmond, 296, 297. 
 
 West V. Eussell, 538, 539. 
 
 West V. Seaboard Air Ldne" Ry., 544. 
 
 Westbrook v. Comstock, 457. 
 
 West DuluthLand Co. v. Kurtz, 440. 
 
 Western Coal & Mining Co', v. Burns, 
 
 620. 
 Western Indemnity Co. v. Pillsbury, 
 
 637. 
 Western Union Tel. Co. v. Brwin, 367. 
 Western Union Tel. Co. v. Greer, 483, 
 
 508. 
 Western Union Tel. Co. v. Rowe, 201. 
 Western Union Tel. Co. v. Seemes, 586. 
 Westervelt v. Gregg, 197. 
 Westinghouse, Church, Kerr & Co. v. 
 
 Callahan, 621, 622, 629, 631. 
 West Jersey Trust Co. v. Philadelphia 
 
 & R. R, Co., 637. 
 Westlake v. Westlake, 117, 120. 
 Westman v. Wind River Lumber Co., 
 
 610. 
 Westmeath v. Westmeath, 251, 256, 
 
 277, 278, 280. 
 Weston V. Stuart, 430. 
 Wethered v. Conrad, 167. 
 Wetherington v. Wetherington, 253. 
 Wetsel V. Firebaugh, 216. 
 Whalen v. Michigan Cent. R. Co., 617. 
 Whalen v. Pennsylvania R. Co., 656. 
 Wharton v. Christie, 586. 
 Wharton v. Mackenzie, 483. 
 Whatman v. Pearson, 646. 
 Wheaton v. East, 499, 502. 
 Wheeler v. Berry, 619. 
 Wheeler v. Bowen, 133. 
 Wheeler v. Hollis, 417. 
 Wheeler v. James & James, 430. 
 Wheeler v. Moore, 133. 
 Wheeler v. Reed, 655. 
 Wheeler v. St. Joseph & W. R. Co., 
 
 387. 
 Wheeler v. State, 355. 
 Wheeler v. Wheeler, 269. 
 Wheeler & Wilson Mfg. Co. v. Heil, 
 
 96, 103. 
 Whelan v. Cook, 56& 
 
 Whippen v. Whlppen, 70. 
 
 Whipple v. Dow, 325, 331. 
 
 Whirley v. Whiteman, 523. 
 
 Whispell v. Whispell, 251. 
 
 Whisterlo, Case of, 300. 
 
 Whitacre v. Whita'cre, 250. 
 
 Whitaker, In re, 451. 
 
 Whitaker v. Warren, 372, 373, 376. 
 
 Whitaker v. Whitaker, 129, 138. 
 
 Whltbourne v. Williams, 380. 
 
 Whitcom V. Joslyn, 491. 
 
 White, Ex parte, 530. 
 
 White V. Bigelow, 227. 
 
 White V. Board of Managers of State 
 Industrial School, 464. 
 
 White V. Henry, 357, 361. 
 
 White V. Hill, 22. 
 
 White V. Howard, 417. 
 
 White V. Laurel Land Co., 467. 
 
 White V. Lowe, 58. 
 
 White V. McDowell, 326, 328. 
 
 White V. Mann, 323. 
 
 White V. Murtland, 371, 380. 
 
 White V. Nellis, 383. 
 
 White V. Owosso Sugar Co., 614. 
 
 White V. Parker,- 418, 422, 428, 431. 
 
 White V. Pomeroy, 403. 
 
 White V. Ross, 117. 
 
 White V. Sikes, 475, 492, 509, 512. 
 
 White V. Wager, 230, 233. 
 
 White V. White, ^5, 40, 44, 50, 61, 72, 
 326, 327. 
 
 Whiteman v. Whiteman, 132. 
 
 Whiters v. Mallory S. S. Co., 630. 
 
 White Sewing Machine Co. v. Shad- 
 dock, 583. 
 
 Whitesides v. Dorris, 135. 
 
 Whitfield V. Burrell, 444. 
 
 Whitfield V. Whitfield, 260. 
 
 Whiting V. Dewey, 441. 
 
 Whiting V. Earle, 359, 360, 362. 
 
 Whiting-Mead Commercial Co. v. In- 
 dustrial Accident Commission, 640. 
 
 Whitlock V. Whitlock, 250. 
 
 Whitmarsh v. Hall, 492, 505, 517. 
 
 Whitmer's Estate, In re, 225. 
 
 Whitmore v. Delano, 96. 
 
 Whitmore v. Werner, 585. 
 
 Whitney v. Dutch, 472, 475, 498, 499. 
 
 Whitney v. Hitchcock, 375. 
 
 Whitney v. Twombley, 554. 
 
 Whittemore v. Coleman, 451. 
 
 Whittemore v. Elliott, 475. 
 
 Whittingham, Case of, 496. 
 
 Whittingham v. Hill, 486. 
 
 Whittlngton v. McCaskill, 68. 
 
 Whittlesey v. Fuller, 149. 
 
 Wickham v. Torley, 472. 
 
 Wlckiser v. Cook, 447. 
 
742 
 
 CASES CITED 
 [The figures refer lo page^] 
 
 Wicks V. Mitchell, 212. 
 
 Wickstrom v. Peck, 172, 173, 179. 
 
 Wieland v. Kobick, 491. 
 
 Wiengreen v. Beckton, 172. 
 
 Wier V. Still, 10, 11. 
 
 Wiggins V. Keizer, 306. 
 
 Wigglesworth v. Steers, 556. 
 
 Wigh'tman v. Wightman, 56, 60. 
 
 Wilbur V. Bingham, 31. 
 
 Wilbur V. Crane, 807. 
 
 Wilcox V. Roath, 49S. 
 
 Wilcox V. Wilcox, 44, 61, 69. 
 
 Wilder v. Aldrich, 132. 
 
 Wilder v. Brokaw, 83, 160, 179. 
 
 Wilder v. Brooks, 231, 232. 
 
 Wilder v. Richie, 199. 
 
 Wilder v. Weakley's Estate, 541. 
 
 Wilhelm v. Hardman, 508, 514. 
 
 Wilhelm v. Hendrick, 430. 
 
 Wilhite V. Wilhite, 35. 
 
 Wilhoit V. Hancock, 383. 
 
 Wilkie V. Collins, 64. 
 
 Wilkins' Guardian, In re, 417. 
 
 Wilkinson v. Buster, 520. 
 
 Wilkinson v. Deming, 351. 
 
 Wilkinson v. Lee, 353. 
 
 Wikstrom v. Preston Mill Co., 613. 
 
 Win, Appeal of, 436. 
 
 Willard V. Eastham, 190, 192. 
 
 Willard v. Greenwood, 210. 
 
 Willard v. Willard,- 13, 14. 
 
 Willets V. Green, 593. 
 
 William v. Beebe, 154. 
 
 William Grace Co. v. Kane, 611. 
 
 Wm. Rogers Mfg. Co. v. Rogers, 599. 
 
 Williams, Case of, 436, 437. 
 
 Williams, In re, 232, 312, 461. 
 
 Williams v. Betts, 229, 232. 
 
 Williams v. Canary, 389. 
 
 Williams v. Car Co., 650. 
 
 Williams v. Chicago, B. & Q. R. Co., 
 
 407. 
 Williams v. Chitty, 217. 
 Williams v. Cleaveland, 396, 468. 
 Williams v. Goss, 268. 
 Williams r. Harrington, 437. 
 Williams v. Harrison, 475. 
 Williams v. Hays, 546. 
 Williams v. Hugunin, 162, 195, 208, 
 
 211, 213. 
 Williams v. Hutchinson, 320. ■ 
 Williams v. Inabnet, 556. 
 Williams v. Kilburn, 44. 
 Williams v. Kimball, 309. 
 Williams v. Knight, 312. 
 Williams v. McKeene, 27, 57. 
 Williams v. Monroe, ISO. 
 Williams v. Morton, 439, 458. 
 Williams v. Oatos, 72. 
 
 Williams v. Powell, 447. 
 
 Williams v. Prince,, 177. 
 
 Williams v. RolUns, 317. 
 
 Williams v. Sleepy Hollow Mining Co., 
 
 609, 610. 
 Williams v. Sloan, 133. 
 Williams v. State, 14, 32, 57, 531. 
 Williams v. Walker, 164. 
 Williams v. Wentworth, 540. 
 Williams v. Williams, 40, 43, 120, 250, 
 
 251, 253, 255, 257, 262, 263, 290, 330, 
 
 421, 422, 439. 
 Williamson v. McElroy, 154. 
 Williamson v. Watts, 482. 
 Williamson v. Williamson, 10, 244. 
 Williamson Iron Co. v. McQueen, 626. 
 Willick V. Taggart, 441. 
 Williford v. Phelan, 131.. 
 Willis, Ex parte, 464. 
 Willis V. Bell, 312. 
 Willis V. Bernard, 115. 
 Willis V. Com., 559. 
 Willis V. Fox, 436, 437. 
 Willis V. J. G. White & Co., 110. 
 Willis V. Railway Co., 576. 
 Willis V. Rice, 448. 
 Willis V. Twambly, 476, 493. 
 Willits V. Willits, 3, 24. 
 Wills V. Wills, 327, 351. 
 Willoughby v. Thomas, 596, 598. 
 Willwerth v. Leonard, 543. 
 Wilmer v. Wilmer, 277. 
 Wilmington Coal Mln. & Mfg. Co. v. 
 
 Lamb, 582. 
 Wilmington Trust Co. v. Hendrixson, 
 
 41. 
 Wilmot V. McPadden, 523, 652. 
 Wilson, Bx parte, 269. 
 Wilson V. Allen, 33, 61. 
 Wilson V. Bass, 309. 
 Wilson V. Brockley, 57. 
 Wilson V. Brown, 106. 
 Wilson. V. Buchanan, 237. 
 Wilson V. Burnett, 34, 51, 53, 62. 
 Wilson V. Cook, 35, 41, 72. 
 Wilson V. Dearborn, 161. 
 Wilson V. Fidelity Trust Co., 447. 
 Wilson V. Ford, ISO. 
 Wilson V. Frost, 146. 
 Wilson V. Garrard, 335, 525. 
 Wilson V. Glossop, 177. 
 Wilson V. Insurance Co., 504. 
 Wilson V. Jones, 190, 192. 
 Wilson V. McMillan, 359, 364, 365. 
 Wilson V. Mitchell, 553. 
 Wilson V. Peverly, 648. 
 Wilson V. Railroad Co., 620. 
 Wilson V. Southern Ry., 628. 
 Wilson V. Stone, 154. 
 
CASES CITED 
 tTho figures refer to pages] 
 
 743 
 
 "Wilson V. Thomass, 172. 
 
 Wilson V. Wilson, 18, 155, 239, 275, 283, 
 
 284, 297, 445. 
 Wilson's Trusts, In re, 31, 33. 
 Wilt V. Welsh, 527. 
 Wilton V. Middlesex R. Co., 366, 367, 
 
 368, 369. 
 Wimberly v. Jones, 502. 
 Wlmbrough v. Wimbrough, 8, 15, 60. 
 Winans v. Peebles, 230, 233. 
 Winchester v. Reid, 365. 
 Winchester v. Winchester, 155. 
 Windsor v. McAtee, 453. 
 Winestine v. Ziglatzki-Marks Co., 140. 
 Wing V. Deans, 165. 
 Wing V. Hurlburt, 180. 
 Wingo V. Rudder, 63, 64. 
 Winkler v. Powell, 260. 
 Winkles v. Powell, 88, 292. 
 Winn V. HoUiday, 335. 
 Winslow V. State, 356, 357. 
 Wlnsmore v. Greenbank, 113. 
 Winter v. Dibble, 63, 64. 
 Winter v. Henn, 120, 121, 122. 
 Winter v. Winter, 240. 
 Winterbum v. Brooks, 340. 
 Winters v. Kahsas City Cable R. Co., 
 
 523. 1 
 
 Winters v. Winters, 151. 
 Wirebach's Ex'r v. First Nat. Bank, 
 
 546. 
 Wirgman t. Aliller, 212. 
 Wirsig V. Scott, 405, 407. 
 Wirth V. Wirth, 81. 
 Wiseman v. Railroad Co., 598. 
 Wiser v. Lockwood's Estate, 20. 
 Wisner's Estate, In re, 433, 434. 
 Withers v. Hickman, 413, 415. 
 Wits-Keets-Poo v. Rowton, 155. 
 Witter V. Cook County Com'rs, 461. 
 Witter V. Witter, 434. 
 Wittick's Estate, In re, 26, 45. 
 Wochner v. Pennsylvania Engineering 
 
 Works, 608, 632. 
 Wodell V. Coggeshall, 356, 362, 370, 
 
 386. 
 Wohlford V. Burckhardt, 345. 
 Wolcott V. Connecticut General Life 
 
 Ins. Co., 539. 
 Wolf V. Gall, 58, 301, 308, 309. 
 Wolf V. Schulman, 176. 
 Wolfe V. Howes, 594. 
 Wolfe V. State, 458. 
 Wolfe's Estate, In re, 446. 
 WolfC V. Foote Bros. Gear Macb. Co., 
 
 610. 
 Wolff V. Wolff, 255, 279. 
 Womack v. Womack, 514. 
 Womble v. Womble, 261. 
 
 Wood, Ex parte, 461. 
 
 Wood, In re, 420, 445. 
 
 Wood V. Baker, 25, 57. 
 
 Wood V. Bapp, 466. 
 
 Wood V. Black, 453, 454. 
 
 Wood V. Danas, 634. 
 
 Wood V. Downes, 448. 
 
 Wood V. Losey, 487. 
 
 Wood V. Mathews, 120, 121. 
 
 ■Wood V. Shaw, 352. 
 
 Wood V. Stafford, 452. 
 
 Wood V. Wood, 194, 195, 244, 260, 269, 
 
 280, 284, 286, 347, 409, 417, 418. 
 Wood V. Yant, 210. 
 Wood's Estate, In re, 433. 
 Wood's Estate & Guardianship, In re, 
 
 422, 426. 
 Woodbury v. Hammond, 451. 
 Woodman v. Chapman, 184. 
 Woodman v. Hubbard, 526. 
 Woodrow V. Hawving, 589, 602. 
 Woods V. Boots, 434. 
 Woods V. Richardson, 216. 
 Woodstock Iron Works v. Kline, 613. 
 Woodward, Appeal of, 311, 312, 320. 
 Woodward v. Anderson; 379. 
 Woodward v. Barnes, 99, 100, 171, 173, 
 
 175. 
 Woodward v. Blake, 35. 
 Woodward v. Donnell, 359. 
 Woodward v. Walton, 37g. 
 Woodward ^. Washburn, 643. 
 Woodward v. Woodward, 273, 274, 275, 
 
 315, 320. 
 Woodward Iron Co. v. Cook, 369. 
 Woodward Iron Co. v. Curl, 611, 612. 
 Wopdworth v. Spring, 442. 
 Wooldridge v. La Vole, 516. 
 Woolf V. Pemberton, 469. 
 Woolston's Appeal, 237. 
 Woolwor^h V. Woolworth, 246. 
 Word V. CoUey, 154. 
 Worden v. Worden, 152. 
 Worez V. Des Moines City R. Co., 109. 
 Work V. Campbell, 119. 
 Workman v. Workman, 117, 119. 
 Womack v. Loar, 487. 
 Worrell, Appeal of, 431, 433. 
 Worsley v. Worsley, 278, 
 Worth V. Curtis, 438. 
 Worthy v. Jonesville Oil Mill, 476. 
 Wray v. Wray, 248. 
 Wray v. Wrightsman, 510. 
 Wren v. Gayden, 444. 
 Wren v. Kirton, 421. I 
 Wright, Ex parte, 551. 
 Wright, In re, 313, 395, 551. 
 Wright V. Blackwood, 208. 
 Wright V. Buchanan, 476, 496, 497. 
 
744 
 
 CASES CITED 
 [The figures refer to pages] 
 
 Wright V. Comley, 435. 
 
 Wright V. Cosmopolitan Life Ins. 
 
 Ass'n, 428. 
 Wright V. Graham, 567. 
 Wright V. Hicks, 296, 298, 299, 300, 
 Wright V. Jackson, 553. 
 Wright V. Kerr, 96. 
 Wright T. Lake, 589. 
 Wright V. Leonard, 98, 99. 
 Wright V. Leupp, 325. 
 Wright V. London & N. W. R. Co., 623. 
 Wright V. McNatt, 469. 
 Wright v. Naylor, 408. 
 Wright V. Omaha, 110. 
 Wright V. Saddler, 146. 
 Wright V. Vanderplank, 389. 
 Wright V. Wilcox, 649. 
 Wright V. Wright, 305, 306, 405. 
 Wright V. Yazoo & M. V. R. Co., 621. 
 Wrynn v. Downey, 43. 
 Wuest V. Wuest, 244. 
 Wuesthofl V. Germania Life Ins. Co., 
 
 457. 
 Wuller V. Chuse Grocery Co., 476, 490, 
 
 492, 510, 512. 
 Wunderle v. Wunderle, 565, 566. 
 Wusnig V. State, 530. 
 Wyatt V. Simpson, 142. 
 Wyatt V. Smith, 197. 
 WyckofE, In re, 405. 
 WyckofC V. Boggs, 39. 
 Wyeman v. Deady, 645. 
 Wylly V. CoUins, 87. 
 Wyman v. Hooper, 420. 
 Wythe V. Smith, 196. 
 W. & J. Sloane v. Boyer, 175, 179. 
 
 Yakima Joe v. To-Is-Lap, 55. 
 
 Yale V. Dederer, 161, 190, 192, 211, 
 
 212, 213. 
 Yancey v. Boyce, 515, 516. 
 Yardley v. San Joaquin Valley Bank, 
 
 155. 
 Yardley's Estate, In re, 76, 258. 
 Yates V. Boen, 537. 
 Yates V. Craddock, 309. 
 Yates V. Lyon, 475. 
 Yates V. Houston, 64. 
 Yeager, Appeal of, 443, 444 
 Yeakle v. Winters, 456. 
 Yeatman v. Yeatman, 258. 
 
 Yerrington v. Greene, 594, 604. 
 
 Yesler v. Hochstettler, isi 
 
 Yockey v. Marion, 223. 
 
 Yohe V. Barnet, 137. 
 
 Yopst V. Yopst, 125. 
 
 York, Case of, 530. 
 
 York V. Hilger, 154. 
 
 Yost V. State, 457, 458. 
 
 Youn V. Lament, 555. 
 
 Young V. Biehl, 148. 
 
 Young V. Brown, 146, 211, 230. 
 
 Young V. Duncan, 637, 638. 
 
 Young V. Hart, 159. 
 
 Young V. Herman, 390. 
 
 Young V. Hiner, 519. 
 
 Young V. Lorain, 441, 452. 
 
 Young V. McFadden, 205. 
 
 Young v. McKee, 503, 507. 
 
 Young V. Muhling, 526. 
 
 Young V. Sterling Leather Works, 461. 
 
 Young V. Stevens, 542. 
 
 Young V. Young, 272, 546. 
 
 Younghlood v. Hoeffle, 489, 497. 
 
 Youngs V. Youngs, 251, 268. 
 
 Younkin v. Eocheford, 648. 
 
 Yundt V. Hartrxmft, 121. 
 
 Zabriskie v. Erie K. Co., 640. 
 Zachary v. Cadenhead, 184. 
 Zahorka v. Geith, 31. 
 Zancanelli v. Central Coal & Coke Co., 
 
 637. 
 Zeideman v. Molasky, 401. 
 Zeiderman v. Molasky, 409. 
 Ziegler v. Cassidy, 43. 
 Zeis V. St. Louis Brewing Ass'n, 614. 
 Zent V. Fuchs, 320. 
 Zent V. Sullivan, 175, 180. 
 Zentzis v. Zentzis, 287. 
 Zimmerman v. Zimmerman, 283. 
 Zink V. Milner, 352. 
 Zorn, Ex parte, 534. 
 Zorntlein v. Bram, 146, 148. 
 Zouch v. Parsons, 475, 476, 478, 479, 
 
 492. 
 Zuck V. Turner Harness & Carriage 
 
 Co., 510. 
 Zuckerman v. Munz. 155. 
 Zundell v. Gess, 565. 
 Zurasky v. Handy Cap Co., 639. 
 Zweig V. Zweig, 252, 253. 
 
INDEX 
 
 [THE FIQUKES REl'EIi TO PAGES] 
 
 A 
 ABANDONMENT, 
 
 Change of domicile by husband, refusal of wife to follow, 88. 
 Desertion as ground for divorce^ 257. 
 
 Cessation of cohabitation, 258. 
 
 Consent of the abandoned spouse, 263. 
 
 Intention to abandon, 262. 
 
 Misconduct of the abandoned spouse, 266. 
 
 Period of abandonment, 261. 
 Of child by parent, 322. 
 
 As an emancipation of the child, 361. 
 
 Liability of parent for child's necessaries, 321. 
 Of employment by servant, 587. 
 Of wife by husband, effect on wife's power to contract, 158. 
 
 Effect on wife's power to bind husband for necessaries, 176. 
 , Right of husband and wife to cohabitation and intercourse, 75. 
 
 ABDUCTION, 
 
 Of child, action by parent, 384. 
 
 ACCOUNTING, 
 
 By guardian, 443. 
 
 ACTIONS, 
 
 See particular titles. 
 
 ADMINISTRATION, 
 
 Of wife's estate by husband, 138. 
 
 ADOPTION, 
 
 Agreements to adopt, 319. 
 
 Descent and distribution of property, 316. 
 
 What law governs, 320, 
 Invalid adoption, 319. 
 Of children, 310. 
 
 Persons standing in loco parentis, 319. 
 Proceedings, 311. 
 
 Status of adoptive parent and child, 314. 
 What law governs, 320. 
 
 ADULTERY, 
 
 Actions for criminal conversation, by husband, 118. 
 
 By wife, 122. 
 Effect on wife's power to charge husband for necessaries, 177. 
 
 TIFF.P.& D.Rel.(3d Ed.) (745) 
 
746 INDEX 
 
 [Tbe figures refer to pages] 
 
 ADULTERY — C!ontinued, 
 Ground for divorce, 247. 
 Condonation, 277. 
 Connivance, 273. 
 Recrimination, 281. 
 
 ADVANCEMENTS, 
 
 From parent to child, 390. 
 
 AFFINITY, 
 
 Effect on validity of marriage, 25, 
 
 AQB, 
 
 Of consent to marriage, 21. 
 Of majority, 460. 
 See Infants. 
 
 AGENCY, 
 
 See Master and Servant ; Principal arid Agent. 
 
 AGRBEME]>rTS, 
 See Contracts. 
 
 ALIENATION OF AFFECTIONS, 
 Of liusband, action by wife, 118. 
 Of wife, action by husband, 113. 
 
 ALIENS, 
 
 Alien enemies, 566. 
 
 Defined, 560. 
 
 Naturalization, 568. 
 
 Rights and liabilities of alien friends, 563. 
 
 Subject to the laws, 562. 
 
 ANNULMENT, 
 
 Of marriages, 55. 
 Jurisdiction, 59. 
 See Divorce. 
 
 ANTENUPTIAL CONTRACTS, 
 
 Marriage as a consideration, 218. 
 Reasonableness of provisions, 223. 
 Settlements based on antenuptial contracts, 225, 
 Statute of frauds, 226. 
 Validity, 214. 
 
 As to creditors, 221. 
 
 ANTENUPTIAL DEBTS, 
 
 Of wife, liability of husband, 183. 
 
 APPOINTMENT, 
 
 Of guardian, 403. 
 
 APPRENTICES, 
 In general, 571. 
 
 ASSAULT AND BATTERY, 
 
 By either spouse as ground for divorce^ 250C 
 By husband on wife, 80, 105. 
 By master on servant, 601. 
 
INDEX 747 
 
 [The figures refer to pages] 
 
 ASSAULT AND BATTERY— Continued, 
 
 By parent on child, 340. 
 
 By one In loco parentis, 340. 
 
 By wife, 95. 
 
 Defense of servant by master, and vice versa, 603. 
 ASSUMPTION OF RISKS, 
 
 By servant, 616. 
 
 AVOIDANCE, 
 
 Of contracts by drunken person, 556. 
 
 By Infant, 488. 
 
 By insane person, 543. 
 Of guardian's unauthorized acts, 424. 
 Of marriage, 55. 
 
 Jurisdiction to annul, 59. 
 Of transactions between guardian and ward, 446. 
 Of transactions between parent and child, 387. 
 
 B 
 
 BASTARDS, 
 
 Conflict of laws, 303. 
 
 Custody, 305. 
 
 Defined, 294. 
 
 Descent and distribution, 307. 
 
 Domicile, 305. 
 
 Evidence of illegitimacy, 295. 
 
 Presumption, 295. 
 Legitimacy as affected by validity of marriage, 31. 
 Legitimation by marriage or acknowledgment, 300. 
 Status of bastards, 304-309. 
 Support and maintenance, 306^ "^ X^% -n. . 
 
 BIGAMY, 
 
 Effect of bigamous marriage, 31. 
 
 BONDS, 
 
 Of guardian, 456. 
 
 BURDEN OP PROOF, 
 As to marriage, 61. 
 
 c 
 
 <!ANONICAL DISABILITIES, 
 
 To marriage, affinity and consanguinity, 2S. 
 , Impotence, 29. > 
 
 CELEBRATION, 
 
 Of marriage, 36. 
 CHANCERY GUARDIANS, 
 
 Defined, 399. 
 
 See Guardian and Ward. 
 
 CHASTISEMENT, 
 
 Of child by parent, 340. 
 Of servant by master, 601. 
 Of wife by husband, 80, lOSi 
 
748 INDEX 
 
 [The figures refer to pages] 
 
 CHATTELS REAL, 
 
 Wife's chattels real, 139. 
 
 CHILDREN, 
 
 Custody, 343, 461. 
 
 Agreements as to, 352. 
 
 Illegitimate children, 305. 
 
 In cases of divorce, 350. 
 
 Rights of guardians, 408. 
 Guardianship, see Guardian and Ward. 
 Marriage of, 21. 
 
 See, also. Infants; Parent and Child. 
 
 CHINESE, 
 
 Intermarriage with white person, 30. 
 See Aliens. 
 
 CHOSES IN ACTION, 
 
 Of wife, rights of husband, 131. 
 
 COERCION, 
 
 Effect on validity of marriage, 10, 13, 16. 
 Of wife by husband, crimes, 90. 
 Torts, 94. 
 
 COHABITATION, 
 
 As evidence of marriage, 49. 
 Necessity of to constitute marriage, 48. 
 Rights I of .husband and wife, 75. 
 See Desertion.' 
 
 COLLUSION, 
 
 To procure a divorce, 276. 
 
 COMMON LAW, 
 
 Marriage at common law, 40. 
 
 COMMUNITY PROPERTY, 
 Of husband and wife, 150. 
 
 COMPULSION, 
 
 Effect on validity of marriage, 10, 13, 16. 
 Of wife by husband, crimes, 90. 
 Torts, 95. 
 
 CONDONATION, 
 
 As a defense in a suit for divorce, 277. 
 By master of misconduct of servant, 592. 
 
 CONFLICT OF LAWS, 
 
 Adoption and inheritance by or from adopted children, 320. 
 
 As to wife's statutory separate estate, 198. 
 
 Extraterritorial effect of decree of divorce, 287. 
 
 Extraterritorial effect of restrictions on right to marry after divorce, 71. 
 
 Legitimacy of children, 303. 
 
 Validity of marriage, 67. 
 
 CONJUGAL RIGHTS, 
 
 Suits for restitution of, 76. 
 See Husband and Wile. 
 
INDEX 749 
 
 [The figures refer to pages] 
 
 CONNIVANCE, 
 
 As a defense in a suit for divorce, 273. 
 
 CONSANGUINITY, 
 
 Effect on validity of marriage, 25. 
 CONSENT, 
 
 To marriage, 7. 
 CONSIDERATION, 
 
 For emancipation of child, 363. 
 
 Necessity of return on rescission of contract by Infant, 508. 
 
 Of antenuptial settlement, 218. 
 
 CONSTITUTIONAL LAW, 
 
 Legislative divorces, 3, 291. 
 
 Power of Legislature to validate marriages, 60. 
 
 Validity of married woman's acts, 195. 
 
 CONSTRUCTION, 
 
 Of married woman's acts, 194, 195. 
 
 Of statutes relating to marriage, 36, 65. 
 
 CONTRACTS AND QUASI CONTRACTS, 
 
 Agreements of separation between husband and wife, 238. 
 Antenuptial settlements and contracts, 214. 
 
 Marriage as a consideration, 218. 
 
 Reasonableness of provisions, 223. 
 
 Settlements based on antenuptial contracts, 225. 
 
 Statute of frauds, 226. 
 
 Validity as to creditors, 221. 
 As to custody of child, 352. 
 Between guardian and ward, 446. 
 Between parent and child, 387. 
 By child as parent's agent, 331. 
 By wife as husband's agent, 168. 
 
 Power to bind husband for necessaries, 168. 
 Conveyances, sales, and gifts by wife, 164. 
 Emancipation of children, 358-365. 
 Hiring by child, rights of parent, 354. 
 Husband's liability for wife's antenuptial debts, 183. 
 Husband's liability for wife's funeral expenses, 182. 
 Marriage not a contract, 2-5, 292. 
 Of alien enemy, 566. 
 Of alien friend, 563. 
 Of drunken persons, 554. 
 Of guardian, 410. 
 
 Liability for necessaries furnished ward, 410 
 Of hiring, see Master and Servant. 
 Of husband, 168. 
 Of infants, 471-519. 
 
 Avoidance, 488-514. 
 
 Return of consideration, 508. 
 Time of avoidance, 491. 
 Who may avoid, 495. 
 
 Contracts for necessaries, 480. 
 
750 INDEX 
 
 [T!be figures refer to pages] 
 
 OONTKACTS AND QUASI CONTRACTS— Continued, 
 
 Batifleation and disaffirmance, 488. 
 
 Effect of ratification or disaffirmance, 514. 
 Extent of ratification or disaffirmance, 507. 
 What constitutes a disaffirmance, 505. 
 What constitutes ratification, 497. 
 Valid contracts, 477. 
 Void and voidable contracts, 472. 
 Of insane persons, 537. 
 
 Contracts for necessaries, 540. 
 Insane persons under guardianship, 542. 
 Eatiflcation and avoidance of contracts, 543. 
 Avoidance as to third persons, 545. 
 Ignorance and good faith of the other party, 541. 
 Eeturn of consideration, 544. 
 Valid contracts, quasi contracts, 540. 
 Void or voidable, 539. 
 Of wife at common law, 156. 
 
 Parent's liability for necessaries furnished child, 321. 
 Postnuptial settlements and contracts, at common law, 229. "" 
 
 As against creditors and purchasers, 235. 
 In equity, 230. 
 To marry, 4, 7. 
 Wife as a sole trader, 162. 
 
 Wife's power to charge her separate estate, equitable separate estate, 189. 
 Statutory separate estate, 203. 
 
 CONVERSION, 
 See Torts. 
 
 CONVEYANCES, 
 
 Between parent and child, 387. 
 By wife, 164. 
 
 In equity, 166. 
 
 Under modern statutes, 166, 202. 
 See, also. Aliens ; Contracts ; Drunken Persons ; Guardian and Ward; In- 
 fants ; Insane Persons. 
 
 CORRECTIOff, 
 
 Of child by parent, 340. 
 Of servant by master, 601. 
 Of wife by husband, 80, 105. 
 
 COURTS, 
 
 Jurisdiction to annul marriage, 69, 
 To appoint guardian, 406. 
 To grant divorce, 243. 
 
 Extraterritorial effect of decree of divorce, 2S7. 
 COVERTURE, 
 
 See Husband and WUe. 
 
 CRIMES, 
 
 As between husband and wife, 93. 
 Assault and battery, by husband on wife, 80. 
 By master on servant, 601. 
 
INDIDX 761 
 
 [Tbe figures refer to pages] 
 CBIMES — ConUnued, 
 
 By parent on child, 340. 
 
 Defense of servant -by master, and vice versa, 603. 
 False Imprisonment of wife by husband, 78. 
 Neglect of parent to support child, 328. 
 Of child, liability of parent, 33a 
 Of drunken person, 557. 
 Of infants, 529. 
 Of insane person, 548. 
 Of married women, 90. 
 
 CRIMINAL CONVERSATION, 
 Action by husband, 118. 
 Action by wife, 122. 
 
 CRIMINAL LAW, 
 See Crimes. 
 
 CRUELTX, 
 
 As a ground for divorce, 249. 
 Condonation, 277. 
 Recrimination, 281. 
 
 CURTESY, 
 
 Defined and explained, 140. 
 CUSTODY OF CHILDREN, 
 
 See Children. 
 
 D 
 
 DAMAGES, 
 
 For breach of contract between master and servant, 595. 
 DEATH, 
 
 Husband's right of action for wrongful death of wife, 112. 
 
 Right of action for death of child, 376.' 
 
 DEEDS, 
 
 See Aliens; Contracts; Drunken Persons; Guardian and Ward; Hus- 
 band and Wife; Infants; Insane Persons; Parent and Child. 
 
 DESCENT AND DISTRIBUTION, 
 
 Inheritance by and from adopted children, 316. 
 
 What law governs, 320. 
 Inheritance by and from illegitimate children, 307. 
 
 DESERTION, 
 
 As ground for divorce, 257. 
 
 Cessation of cohabitation, 258. 
 
 Consent of abandoned spouse, 263. 
 
 Intention to abandon, 262. 
 
 Misconduct of abandoned spouse, 266. 
 
 Period of abandonment, 261. 
 
 Return or offer to return, 261. 
 Change of domicile by husband, refusal of wife to follow, 88L 
 Of child by parent, 322. 
 
 As an emancipation of the child, 361. 
 
 Liability of parent for child's necessaries, 322., 
 
752 INDEX 
 
 [The figures refer to pages] 
 
 DESERTION— Continued, 
 
 Of wife by husband, effect on wife's power to bind husband for neces- 
 -- saries, 176. 
 
 Effect on wife's power to contract, 158. 
 Right of husband and wife to cohabitation and intercourse, 75. 
 
 DISAFFIRaaiNCE, 
 
 Of contract, see Contracts. 
 Of marriage^ see Marriage. 
 
 DIVORCE, 
 
 Annulment of marriage, 55. 
 Causes for which granted, 247-273. 
 Adultery, 247. 
 
 Conviction of crime and imprisonment, 269. 
 Cruelty, 249. 
 Desertion, 257. 
 
 Cessation of cohabitation, 258. • 
 
 Consent of abandoned spouse, 263. 
 Intention to abandon, 262. 
 Misconduct of abandoned spouse, 266. 
 Period of abandonment, 261. 
 Return or offer to return, 261. 
 Habitual drunkenness, 267. 
 Insanity, 270. 
 Nonsupport, 270. 
 Custody of children, 350. 
 Defenses, 273-287. 
 Collusion;; 276. 
 Condonation, 277. 
 
 Forgiveness, conditional, 278. 
 Knowledge of offense, 280. 
 ^ What amounts to condonation, 279. 
 
 Connivance, 273. 
 Recrimination, 281. 
 
 Conduct, condoned, 286. 
 
 Conduct constituting ground for recrimination, 282. 
 Statutes, 285. 
 Domicile of wife for purpose of suit, 89. 
 Effect on property rights, 130. 
 Jurisdiction to grant, 243. 
 
 Dependent on domicile, 244. 
 Extraterritorial effect of decree, 287. 
 Legislative divorces, 3, 291. 
 Maintenance of children after divorce, 326. 
 Presumption of divorce, 62. 
 
 Prohibition against marriage by divorced person, 34. 
 Extraterritorial effect of restriotions, 71. 
 See Marriage. 
 
 DOMICILE, 
 
 As conferring jurisdiction of divorce proceedings, 244 
 
 Of child, 392. 
 
 Of illegitimate child, 305. 
 
INDEX 753 
 
 [The figures refer to pages] 
 
 DOMICILE— Continued, 
 
 Of ward, change by guardian, 416. 
 
 Right of hushand to determine family domicile, 88. 
 
 Eight of wife to acquire domicile for divorce, 89. 
 
 DOWER, 
 
 Defined and explained, 144. 
 
 DRUNKEN PERSONS, 
 
 Capacity to contract, 554. 
 
 Capacity to make a will, 559. 
 
 Effect of intoxication on validity of marriage, 16, 17, 20. 
 
 Intoxication as a ground for divorde, 267. 
 
 Liability for torts, 557. 
 
 Responsibility for crime, 557. 
 
 DURESS, 
 
 Effect on validity of marriage, 10, 13, 16. 
 What constitutes, 14. 
 
 E 
 EARNINGS, 
 
 Of child, rights of parent, 354. 
 
 Rights in case of emancipation, 358. 
 Of ward, rights of guardian, 409. 
 Of wife, effect of modern statutes, 126. 
 Rights of husband, 124. 
 Wife as a sole trader, 162. 
 
 EDUCATION, 
 
 Of child, duty of parent, 334. 
 Of ward, duty of guardian, 410. 
 
 EMANCIPATION, 
 Of child, 358. 
 
 By consent of parent, 359. 
 
 By operation of law, 360. 
 
 Consideration, revocation, 363. 
 
 Effect, 578. 
 
 Estoppel of parent, 362. 
 
 Rights of parent's creditors, 364. 
 
 EMPLOYERS' LIABILITY ACTS, 
 In general, 633. 
 
 ENTICING, 
 
 Of child, action by parent, 384. 
 Of husband, action by wife, 118. 
 Of servant, action by master, 643. 
 Of wife, action by husband, 113. 
 
 ENTIRETY, ESTATE BY, 
 In general, 146. 
 
 EQUITY, 
 
 Jurisdiction over wife'fe statutory separate estate, 212. 
 Jurisdiction to annul marriage, 59. 
 Wife as a sole trader in equity, 162. 
 TnT.P.&D.riBL.(3DED.)— 48 ^ 
 
754 INDKX 
 
 JfChe figures refer to pages] 
 
 EQUITY— Continued, 
 
 Wife's equitable separate estate, 185. 
 
 Power of disposition, 187. 
 
 Po\^er to chiarge by contract, 189. 
 Wife's equity to a settlement, 135. 
 
 EEEOR, 
 
 ' See Mistake. 
 
 ESTATE BY THE ENTIRETY, 
 
 In general, 146. 
 ESTOPPEL, 
 
 Agency of wife for husband, 170. 
 
 Of parent to claim services and earnings of child, 362. 
 
 EVIDENCE, 
 
 Of Illegitimacy, presumptions, 295. 
 
 Of marriage, presumptions, 49-58, 61. 
 
 EXECUTORS AND ADMINISTRATORS, 
 
 Husband as administrator of wife's estate, 138. 
 
 FALSE IMPRISONMENT, 
 Of wife by husband, 78. 
 
 FELLOW SERVANTS, 
 
 See Master and Servant 
 
 FOREIGNERS, 
 See Aliens. 
 
 FOREIGN GUARDIANS, 
 Powers, 441. 
 
 FORMALITIES, 
 
 In the celebration of marriage, 36. 
 
 FRAUD, 
 
 Effect on validity of marriage, 9-12, 16. 
 Liability for, see Torts. 
 
 FRAUDS, STATUTE OF, 
 
 Contracts in consideration of marriage, 226. 
 Contracts of hiring, 579. 
 
 FUNERAL EXPENSES, 
 
 Of wife, liability of husband, 182. 
 
 G 
 
 GIFTS, 
 
 Antenuptial and postnuptial settlements between husband and wife 
 214, 229. ' 
 
 By child to parent, 387. 
 By husband to wife, 229. 
 By parent to child, 390. 
 By ward to guardian, 446. 
 By wife to husband, 164, 166. 
 
INDEX 75S 
 
 [The figures refer to pages] 
 
 GUARDIAN AND WARD, 
 
 Appointment of guardian, 403. 
 Jurisdiction to appoint, 406. 
 Who may or will he appointed, 405. 
 Bonds, 456. 
 
 Classification of guardians, 394. 
 Chancery guardians, 399. 
 Guardians ad litem, 402, 468. 
 
 Guardians in socage, 896. • 
 
 Guardians of persons non compotes mentis, 402, 535. 
 Natural guardians, 395. 
 Quasi guardians, 401. 
 Statutory guardians, 400. 
 Testamentary guardians, 398. 
 Compensation of guardian, 445. 
 Enforcement of guardian's liability, 455. 
 Foreign and ancillary guardians, 441. 
 Gifts from ward, 446. 
 Inventory and accounts, 443. 
 
 Rights, duties, and liabilities of guardians, 408-449. 
 Action for injuries to ward, 409. 
 Change of ward's domicile by guardian, 416. 
 Custody of ward, 408. 
 Maintenance and education of ward, 410. 
 
 Contracts of guardian on behalf of ward, 410. 
 Liability for necessaries furnished ward, 410. 
 Use of principal of estate, 414. 
 Management of estate by guardian, 418-441. 
 Actions by guardian, 427. 
 Acts of guardian in excess of authority, 424. 
 Care of real estate, 436. 
 Collection and protection of property, 427. 
 Degree of care required, 425. 
 Guardianship as a trust, 418-424.' 
 
 Custody and deposit of ward's funds, 421. 
 
 Personal advantage from use of ward's property, 421. 
 
 Purchase by guardian on sale of ward's property, 419. 
 
 Rights of purchasers from guardian, 420. 
 Right of ward to follow the trust property, 422. 
 Investments, 431. 
 
 Power to execute instruments, 441. 
 Sale of personal property; 440. 
 Sale of real estate, 437. 
 Ward's services and earnings, 409. 
 Settlements out of court, 446. 
 Termination of guardianship, 450. 
 Death of guardian, 450. 
 Death of warfl, 450. 
 Majority of ward, 450. 
 Marriage of female guardian, 451, 
 Marriage of ward, 451. 
 Removal, 452. 
 Besignation, 452. 
 
756 INDEX 
 
 [The figures refer to pages] 
 
 H 
 
 HARBOEING, 
 
 Of child, action by parent, 384. 
 Of servant, action by master, 643. 
 Of wife, action by husband, 113. 
 
 HIKING, 
 
 See Mastet and Servant. 
 
 HUSBAND AND WIFE, 
 
 Agreements of separation, 238. 
 Antenuptial settlements and contracts, 214. 
 Marriage as a consideration, 218. 
 Reasonableness of provisions, 223. 
 Settlements based on antenuptial contracts, 225. 
 Statute of frauds, 226. 
 Validity as to creditors, 221. 
 Contracts, conveyances, and quasi contractual obligations, 156 et seq. 
 Contracts by wile as husband's agent, 168-181. 
 Agency by estoppel, 170. 
 
 Husband's liability for necessaries furnished vcife, 168-181. 
 What are necessaries. 179. 
 Contracts of husband, 168. 
 Contracts of wife at common law, 156. 
 Effect of modern statutes, 159, 203. 
 In equity, 159, 189. 
 
 New promise after death of husband or divorce, 157. 
 Conveyances, sales, and gifts by wife, 164. 
 In equity, 166, 189. 
 Mode of conveyance, 167. 
 ' Under modem statutes, 166, 203. 
 
 Wife as a sole trader, 127, 143, 162. 
 Effect of modern statutes, 163. 
 Divorce or judicial separation, 241-292. 
 
 Causes for which divorce i^ay be granted, 247, 273. 
 Defenses, 273-287. 
 Jurisdiction to grant, 243. 
 
 Extraterritorial effect of decree, 287. 
 Husband's liability for wife's antenuptial debts, 183. 
 Husband's liability for wife's funeral expenses, 182. 
 Legislative divorce, 291. 
 
 Persons of spouses as affected by coverture, 75-123. 
 Correction or chastisement of wife, 80. 
 Crimes as between husband and wife, 93. 
 Crimes of wife, 90. 
 Duty to support wife and family, SO. 
 
 Contracts of wife for support, S3. «» 
 
 Joint liability of husband and wife, 84. 
 
 Which are family expenses, 86. 
 Proceedings to compel support, 82. 
 Wife's duty to support husband, 87. 
 Liability of husband for torts of wife, 95. 
 
INDEX 757 
 
 [The figures refer to pages] 
 
 HUSBAND AND WIFE— Continued, 
 
 As affected by modem statutes, 100. 
 
 Torts arising out of contracts, 99. 
 Restraint of wife, 78. 
 Riglit of action for criminal conversation, 120-123. 
 
 Action by liusband, 118. 
 
 Action by wife, 122. 
 Right of action for enticing, harboring, and alienation of affection, 
 113-119. 
 
 Action by husband, 113. 
 
 Action by wife, 118. 
 Right to cohabitation and intercourse, 75. 
 
 Desertion as a ground for divorce, 258. 
 
 Justification for leaving spouse, 77. 
 
 Suits for restitution of conjugal rights, 76. 
 Right to determine family domicile, 88. 
 
 Refusal of wife to follow husband, 88. 
 
 Right of wife to acquire domicile for divorce, 89. 
 Torts against wife, 107-112. 
 
 Injury to husband, action by husband alone, 110. 
 
 Injury to wife, joint action, 108. ^ 
 Torts as between husband and wife, 105. 
 
 Effect of modern statutes, 106. 
 Postnuptial settlements and contracts, at common law, 229. 
 As against creditors and purchasers, 235. 
 In equity, 230. 
 Rights as to children, see Parent and Child. 
 Rights In property as affected by coverture, 124-155. 
 Administration by husband of wife's estate, 138. 
 Community property, 150. 
 Estates by the entirety, 146. 
 Modification of common law rules, 143, 
 Wife's chattels real, 139. 
 Wife's choses in action, 131. 
 
 Reduction to possession by husband, 133. 
 
 Wife's equity to a settlement, 131, 135. 
 Wife's earnings, 124. 
 Wife's estates for life, 142. 
 Wife's estates of inheritance, 140. 
 
 Husband's curtesy, 140. , , 
 
 Wife's personalty in possession, 128. 
 
 Paraphernalia, 130. 
 Wife's rights in husband's property, 144, liH. 
 
 Dower, 144. 
 
 Thirds, 145. 
 Wife's equitable separate estate, 143, 185. 
 Power of disposition, 187. 
 Power to charge by contract, 189. 
 Wife's statutory separate estate, 144, 192. 
 Conflict of laws, 198. 
 Constitutionality of statutes, 195. 
 Construction and effect of statutes, 194, 195. 
 
758 INDEX 
 
 IThe figures refer to pages] 
 
 HUSBAND AND WIFE— Continued, 
 
 Retrospective operation, 195. 
 Distinguished from equitable separate estate, 194. 
 Management and control, 201. 
 Power of disposition, 202. 
 Power to charge by contract, 203. 
 
 For debts of husband, '209. 
 What constitutes, 198. 
 
 See Marriage. 
 
 I 
 
 IDIOTS, 
 
 See Insane Persons. 
 
 IIiLEGJ[TIMATB CHILDBEN, 
 See Bastards. 
 
 IMBECILES, 
 
 See Insane Persons. 
 IMPOTENCE, 
 
 As ground for divorce, 271. 
 
 Effect on validity of marriage, 29. 
 
 INDEPENDENT CONTRACTORS, 
 Distinguished from servants, 652. 
 Liability of employer for acts and omissions of, 652, 
 
 INDIANS, 
 
 Marriage of, 54. , 
 
 Marriage with white person, 30. 
 
 INFANTS, 
 
 Age of majority, 460. 
 Capacity to hold oflSce, 467. 
 Capacity to make a will, 467. 
 Capacity to sue and defend, 468. 
 
 Guardian ad litem, 402. 
 Competency as witnesses, 470. 
 Contracts of infants, 471-519. ' 
 
 Contracts for necessaries, 480. 
 
 What are necessaries, 483. 
 Ratification and disaffirmance, 488. 
 
 Effect of ratification or disaffirmance, 514. 
 ' Extent of ratification or disaffirmance, 507. 
 Return of consideration, 508. 
 Time of avoidance, 491. 
 What constitutes a disaffirmance, 505» 
 What constitutes a ratification, 497. 
 Who may avoid, 495. 
 Valid contracts, 477. 
 Void and voidable contracts, 472. 
 Custody and protection, 461. 
 Disabilities in general, 465. 
 
 Removal of disabilities, 518. 
 Emancipation, see Parent and Child, 
 Guardianship, see Guardian and Ward. 
 
INDEX 759 
 
 ^Tbe Sgurea refer to pages] 
 
 INFANTS— Continued, 
 
 Liability of infants for torts, 523. 
 
 Torts connected with contract, 525. 
 Liability of parent for acts of, see Parent and Child. 
 Marriage of Infants, 21. 
 
 Construction of statutes, 66. 
 Privileges and disabilities in general, 465. 
 Responsibility for crime, 529. 
 Eights, duties, and liabilities of parents and of children, see Parent and 
 
 Child. 
 Torts against infants, action by infant, 520. 
 Action by parent, see Parent and. Child. 
 INFORMAL MARRIAG,E, 
 In general, 40. 
 
 INQUISITION, 
 
 To determine sanity or insanity, 534. 
 
 INSANE PERSONS, 
 
 Capacity to make a •will, 552. 
 Contracts of Insane persons, 537. 
 
 Avoidance as to third persons, 545. 
 
 For necessaries, 540. 
 
 Ignorance and good faith of the oth^r party, 541. 
 
 Insane persons under guardianship, 542. 
 
 Ratification and avoidance of contracts, 543. 
 
 Return of consideration, 544. 
 
 Valid contracts, quasi contracts, 540. 
 
 Void or voidable, 539. 
 Custody and support, 536. 
 Guardianship of insane persons, 402, 535. 
 Insanity defined, various kinds, 532. 
 Liability for torts, 546. 
 Marriage of, 17. 
 
 Mode of ascertaining insanity, 534. 
 Responsibility for crime, 548. 
 
 Inability to distinguish between right and wrong, 549, 
 
 Insane delusions, 549. 
 
 Insanity after commission of crime, 551. 
 
 Irresistible impulse, 550. 
 
 Moral and emotional insanity, 551. 
 
 INSANITY, 
 
 As ground for divorce, 270. 
 
 Defined, 532. 
 
 See Insane Persons. 
 INTERCOURSE, 
 
 Rights of husband and wife, 75. 
 
 INTOXICATING LIQUORS, 
 
 Furnishing liquor to child, 378. 
 
 INTOXICATION, 
 
 As ground for divorce, 267. 
 
 Effect on validity of marriage, 17, 20. 
 
 Status of intoxicated persons generally, see Drunken Persons, 
 
760 INDEX 
 
 [Tbe figures refer to pages] 
 
 JURISDICTION, 
 
 To annul marriage, 59. 
 Tq appoint guardian, 406. 
 To grant divorce, 243. 
 
 L 
 
 LARCENY, 
 
 Byjwlfe or husband from other spouse, 93. 
 
 laws/ 
 
 Sefe Statutes. 
 
 LEGISLATIVE DIVORCE, 
 
 Not unconstitutional, 3, 291. 
 
 LEGISLATURE, 
 
 Power to regulate and control marriage, 6. 
 
 LEGITIMACY, 
 
 Of children, 293-304. 
 
 As affected by validity of marriage, 31. 
 Conflict of lavrs, 303. 
 Evidence of legitimacy, 295. 
 
 Presumption, 295. 
 Illegitimate children, see Bastards. 
 Legitimation by acknowledgment, 300. 
 Legitimation by marriage, 300. 
 LIBEL, 
 
 Of servant by master, 601. 
 See Torts. 
 LICENSE, 
 
 To marry, necessity, 37, 65. 
 
 LIFE ESTATE, 
 
 Husband's rights in wife's life estate, 142. 
 
 LOCO PARENTIS, 
 
 Rights and duties of persons standing in loco parentis, 319. 
 
 •LUNATICS, 
 
 See Insane Persons. 
 
 M 
 
 MAINTENANCE, 
 
 Of bastards, 306. 
 
 Of child by parent, 321. 
 
 Of parent by child, 392. 
 
 Of ward by guardian, 410. 
 
 Of wife by husband, 168. 
 MARRIAGE, 
 
 Agreement to marry, 4. 
 
 Annulment and avoidance of marriage, 55. 
 Jurisdiction, 59. 
 
 As a consideration for antenuptial contract, 218. 
 
 As a status, 4. 
 
INDEX 761 
 
 [The figures refer to pages] 
 
 MAKRIA(3E— Continued, 
 
 Between Indians in tribal relations, 54. 
 
 By proxy, 54. 
 
 Common law marriages, 40. 
 
 Conflict of laws, 67. 
 
 Defined, 2. 
 
 Distinguisbed from contract, 2-5. 
 
 Effect of marriage, see Husband and Wife. . 
 
 Essentials of marriage, 6-36. 
 
 Capacity of parties otherwise than mentally, 25-36. 
 
 Civil conditions, race, etc., 30. 
 
 Consent of parents, 37, 66. 
 
 Construction of statutory provisions, 37, 65. 
 
 Effect of statutory requirements, 36, 65. 
 
 Formalities in celebration of marriage, 36-55. 
 
 Informal marriages, 36-44. 
 
 Insanity, 17. 
 
 Intoxication, 17, 20. 
 
 Llcaise, 37, 65. 
 
 Mental incapacity, 17-25. ^, 
 
 Mutual consent, 7. ^ 
 
 Duress, 10, 13, 16. 
 Error or mistake, 10, 15, 16. 
 ./ Fraud, 9-12. 
 
 Marriage in jest, 8. 
 
 Nonage, 21. 
 
 Physical incapacity or impotenae, 29. 
 / Prior marriage, 31. 
 
 Publication of banns, 37, 65. 
 
 'Qualification of person performing ceremony, 37, 65. 
 
 Relationship, consanguinity, and affinity, 25. 
 
 Registration, 37. 
 Evidence of, 49. 
 
 Presuinption and burden" of proof as to marriage, 49, 52, 61. 
 Indian marriages, 54. 
 
 Iiegislation impairing obligation of, 3, 291. 
 Legitimation of children by subsenuont marriage, 300. 
 Of female guardian, effect on guardianship, 451. 
 Of ward, effect on guardianship, 451. 
 Power of Legislature to validate marriages, 60. 
 Regulation and control, 6. 
 
 Restrictions on right to marry after divorce, 34, 71. 
 Slave marriages, 31. 
 
 MARRIAGE SETTLEMENTS, 
 See Husband and Wife. 
 
 MARRIED WOMEN, 
 
 See Husband and Wife. 
 
 MASTER AND SERVANT, 
 Apprentices, 571. 
 Creation of the relation, 574, 
 Implied contract, 576. 
 
762 INDEX 
 
 [The flgures refer to pages] 
 
 MASTER AND SERVANT— Continued, 
 Statute of frauds, 579. 
 Validity of contract, 578. 
 Hired servants, 572. 
 
 Master's liability to third persons for acts or omissions of servant, 645. 
 For servant's torts, 646. 
 Independent contractors, 652. 
 On contracts of servant, 646. 
 Relationship of parties,' 651. 
 Relation defined, 570. 
 Remedies for breach of contract, da,mages, 595. 
 
 Specific performance and injunction, 599. 
 Rights, duties, and liabilities inter se, 600. 
 Conspiracy between servants, 603. 
 Correction of servant, 601. 
 
 Defense of servant by master, and vice versa, 603. 
 Giving servant a character, 601. 
 
 Slander or libel, 601. 
 Liability of servant for neglect, 602. 
 Master's liability -for injuries to servant, 606-642. 
 Assumption of risks by servant, 616. 
 Degree of care required, 614. 
 Duty of master, 606. 
 
 Delegation of duty, 615. 
 Employer's liability a!cts, 633. 
 Fellow servants, 611, 621. 
 
 Competency of fellow servants, 611. 
 Negligence of fellow servants, 621. 
 •. Number of fellow servants, 611. 
 Inspection, 608. 
 Methods of work, 612. 
 Place for work, 609. 
 Promulgation of rules, 612. 
 Tools, appliances, etc., 511, 607. 
 Warning and instructing servants, 612, 
 Workmen's compensation acts, 635. 
 Right to entire time of servant, 601. 
 Right to wages, 603. 
 Rights of master against third persons, 642. 
 Enticing or harboring servant, 642. 
 Injury to servant, 642. 
 Rights of servant against third persons, 644. 
 
 Procuring discharge of servant, 644. 
 Servant's liability to third persons, 655. 
 Statutory regulation, 573. 
 Termination of the relation, 580. 
 Breach of contract, 585. 
 Breach by master, 585. 
 Ill treatment, 586. 
 Wrongful discharge, 586. 
 Breach by servant, justifying discharge, 587. 
 Condonation or waiver of breach, 592. 
 
INDBX 763 
 
 [The figures refer to pages] 
 
 MASTEK AND SEKVANT— Continued, 
 
 Criminal or immoral conduct, 589. 
 
 Disobedience, 590. 
 
 Engaging in similar business, 591. 
 
 Incompetency, 588. 
 
 Injury to master's business, 591. 
 
 Intoxication, 588. 
 
 Neglect of duties, 590. 
 Discharge of contract' by agreement, 581, ' 
 Discharge of contract by performance, 585. , 
 Happening of conditions subsequent, 582. 
 Impossibility of performance, 593. 
 
 MENTAL CAPACITY, 
 
 See Drunken Persons ; Infants ; Insane Persona. 
 
 MINORS, 
 
 See Infants; Parent and Child. 
 
 MISCEGENATION, 
 
 Prohibited marriages between races, 30. 
 MISTAKE, 
 
 Effect on validity of marriage, 10, 15, 18. 
 MUTUAL CONSENT, 
 
 To marriage, 7. 
 
 N 
 NATURAL CHILD, 
 See Bastards. 
 
 NATURAL GUARDIANS, 
 Defined, 395. 
 
 NATURALIZATION, 
 Of aliens, 568. 
 
 NEX3ESSARIES, 
 
 Furnished child, liability of i>arent, 321. 
 Furnished ward, liability of guardian, 410t 
 Furnished wife, liability of husband, 168. 
 
 What are necessaries, 179. 
 Liability of drunken persons, 555. 
 Liability of Infants, 480. 
 Liability of insane persons, 540. , 
 
 NEGLIGENCE, 
 
 See Mast^ and Servant; Torts. 
 
 NEGRO, 
 
 Marriage with white person, 30. 
 
 NONAGE, 
 
 See Infants. 
 
 NON COMPOS MENTIS, 
 
 See Drunken Persons ; Insane PerioM. ' 
 
 NONSUPPORT, 
 
 As ground for divorce, 270. 
 
764 INDBX 
 
 [The figures refer to pages] 
 
 o 
 
 OFFICERS, 
 
 Capacity of infant to hold office, 467. 
 
 PARAPHERNALIA, 
 Of wife, 130. 
 
 PARESSTT AND CHILD, 
 
 Adoption of children, 310. 
 Agreements to adopt, 819. 
 Descent arid distribution, 316. 
 
 What law governs, 320. 
 Effect of invalid adoption, 319. 
 Persons standing in loco parentis, 319. 
 Proceedings to adopt, 311. 
 Status of adoptive parent and child, 314. 
 What law governs, 320. 
 Duties and liaMlities of parents, 321-338. 
 
 Contracts by child as parent's agent, 331. 
 Duty to educate child, 334. 
 Duty to maintain child, 321. 
 
 Liability for necessaries furnished child, 321. 
 Maintenance in equity, allowance from child's estate, 329. 
 Neglect to support as an offense, 328. 
 Duty to protect child, 333. 
 , Liability for child's crimes, 338. 
 Liability for child's torts, 334. 
 Legitimacy of children, 293-304. 
 Conflict of laws, 303. 
 Evidence of Illegitimacy, 295. 
 
 Presumption, 295. 
 Legitimation hy acknowledgment, 300. 
 Legitimation by marriage, 300. 
 Status of illegitimate children, 304. 
 Custody, 305. 
 
 Descent and distribution, 307. 
 Domicile, 305. 
 
 Support and maintenance, 306. 
 Liability of parent for enticing or harboring married child, 116. 
 Rights of parent and of child, 339-393. 
 
 Abducting, enticing, or harboring child, parent's right of action, 384. 
 Advancements by parent to child, 390. ^ 
 
 Correction of child, 340. 
 Custody of child, 343. 
 
 Agreements as to custody, 352. 
 In cases of divorce, 350. 
 Domicile of child, 392. 
 Duty of Child to support parent, 392. 
 Emancipation of children, 358-365. 
 By consent of parent, 359. 
 
INDEX 765 
 
 [The figures refer to pages] 
 
 PAEENT AND CHILD— Continued, 
 
 By operation of law, 360. 
 
 Consideration, revocation, 363. 
 
 Effect in general, 518. 
 
 Estoppel of parent, 362. 
 
 Rights of parent's creditors, 364. 
 Gifts, conveyances, and contracts betvpeen parent and child, 387. 
 Injury to child, parent's right of action, 365-378. 
 
 Adult phildren, 375. 
 
 Expenses incurred by reason of the injury, 369. 
 
 Furnishing liquor to child, 378. 
 
 Loss of services of child, 367. 
 
 Necessity to show loss of services, 369. 
 
 Other elements of damage, 374. 
 
 Remote and proximate cause, 375. 
 
 Who may sue, 376. 
 
 Wrongful death, right of action, 376. 
 Marriage of Infants, 21. 
 
 Consent of parent, 37, 66. 
 Parent's rights in child's property, 386. 
 Right to child's services and earnings, 354. 
 
 Seduction or debauching of daughter, parent's right of action, 378. 
 Status of Infants, see Infants. 
 
 PARTIES, 
 
 Infants as parties to actions, 468. 
 
 PERSONAL INJURIES, 
 
 See Husband and Wife; Master and Servant; Parent and Child. 
 
 PHYSICAL CAPACITY, '^ 
 
 To marry. 29. 
 
 POSTNUPTIAL SETTLEMENTS, 
 
 Between husband and wife, at common law, 229. 
 In equity, 229. 
 Right of creditors and purchasers, 235. 
 
 PRESUMPTIONS, 
 
 As to marriage and legitimacy of children, 61, 295. 
 Of divorce from or death of former spouse, 62. 
 Of marriage in general, 49-53. 
 
 PRINCIPAL AND AGENT, 
 
 Child as parent's agent, 331. 
 
 Wife as husband's agent, 168. 
 
 See Master and Servant. 
 
 PRIOR MARRIAGE, 
 
 Effect on validity of marriage, 31. 
 
 PROXY, 
 
 Marriage by proxy, 54. 
 
766 INDEX 
 
 [Tbe figures refer to pages] 
 
 Q 
 
 QUASI CONTRACT, 
 
 See Contracts and Quasi Contracts. 
 
 QUASI QUARDIANS, 
 Defined, 401. 
 
 See Guardian and Ward. 
 
 R 
 
 RACE, 
 
 Prohibited marriage between races, 30. 
 RAPE, 
 
 Husband as accessory, 94, 
 
 RATIFICATION, 
 
 . Of agency of wife, 171. 
 Of contract by Infant, 488, 497. 
 Of voidable marriage, 16, 20. 
 
 RECRIMINATION, 
 
 As a defense in a suit for divorce, 281. 
 
 REDUCTION TO POSSESSION, 
 
 Of wife's Glioses in action by husband, 133. 
 
 REGISTRATION, 
 Of marriage, 37. 
 
 RELATIONSHIP, 
 
 EfEect on validity of marriage, 25. 
 
 REMOVAL, 
 
 Of guardian, 452. 
 RESIDENCE, 
 
 See Domicile. 
 
 REPUTE, 
 
 As evidence of marriage, 49. 
 
 RESIGNATION, 
 
 Of guardian, 452. 
 
 RESPONDEAT SUPERIOR, 
 
 Roaster's liability for acts or omissions of servant, S4!V 
 
 RESTITUTION, 
 
 Of conjugal rights, suits for, 76. 
 
 RESTRAINT, ' 
 
 Of wife by husband, 78. 
 
 REVOCATION, 
 
 Of emancipation of child, 363. 
 
 s 
 
 SEDUCTION, 
 
 Of daughter, action by parent, 378* 
 Of wife, action by husband, 118L 
 
INDBX 767 
 
 IThe figures refer to pages] 
 
 SEPARATE ESTATE, 
 
 Wife's equitable separate estaia, 143, 185. 
 Wife's statutory separate estate, 144, 192. 
 
 Equitable and statutory separate estates distinguished, 194, 
 
 Management and control, 201. 
 
 Power to charge, 203. 
 
 Power to convey, 202. 
 
 What constitutes, 198. 
 SEPARATION, 
 
 Judicial separation, see Divorce. 
 
 Separation agreements between husband and wife, 238. 
 
 SERVANTS, 
 
 See Master and Servant. 
 
 SERVICES, 
 
 Of child, rights of parent, 354. 
 Of ward, rights of guardian, 409. 
 Of wife, rights of husband, 124. 
 See Master and Servant. 
 
 SLANDER, 
 
 Of servant by master, 601. 
 See Torts. 
 
 SLAVES, 
 
 Marriage of, 31. 
 
 No slavery In the United States, 571. 
 
 SOCAGE, 
 
 Guardians in socage, 396. 
 
 See Guardian and Ward. \ 
 
 SOLE TRADER, 
 
 Wife as a sole trader, 127, 143, 162. 
 Effect of modern statutes, 163. 
 
 STATES, 
 
 Power of Legislature to grant divorces, 291. 
 Power of Legislature to validate marriages, 60. 
 
 STATUTE OP FRAUDS, 
 See Frauds, Statute of. 
 
 STATUTES, 
 
 Effect of statutory requirements as to marriage, 37. 
 
 Legislative divorces, 3, 291. 
 
 Married women's property acts, 192-213. 
 
 Power of liegislature to validate marriage, 60. 
 
 Relating to marriage, construction, 65. 
 
 SUPPORT, 
 
 Contract of wife, 83. 
 
 Duty of wife to support husband, 87. 
 
 Family expenses, 86. 
 
 Joint liability of husband and wife, 84. 
 
 Of wife by husband, 80. 
 
 Proceedings to compel support, 82. 
 
 See Guardian and Ward ; Husband and Wife ; Parent and Ohlia. 
 
768 INDEX 
 
 [Tho figures refer to pages] 
 
 TESTAMENTARY GUARDIANS, 
 Defined, 398. 
 
 See Guardian and Ward, 
 
 TORTS, 
 
 Action by guardian for injuries to ward, 409. 
 
 Action by husband for alienating affections of wife, 113. 
 
 Action by husband for enticing or harboring wife, li3. 
 
 Action by infant for tort, 520. 
 
 Action by master for injuries to servant, 642. 
 
 Action by parent for abducting, enticing, or harboring child, 384. 
 
 Action by parent for injuries to child, 365. 
 
 Action by parent for seduction or debauching of daughter, 378. 
 
 Action by servant for causing his discharge, 644. 
 
 Action by wife for alienating affections of husband, 118. 
 
 Action by wife for enticing or harboring hushand, 118. 
 
 Actions for criminal conversation, 118. 
 
 Against wife, 107-112. 
 
 As between husband and wife, 105. 
 
 Effect of modern statutes, 10^. 
 Husband's liability for torts of wife, 95. 
 
 As affected by modern statutes, 100. 
 
 Torts arising out of contracts, 99. 
 Liability of drunljen persons, 557. 
 Liability of infants,' 523. 
 Liability of insane persons, 546. 
 Liability of married women, 95. 
 
 As affected by modern statutes, 100. 
 
 Torts arising out of contracts, 99. 
 Liability of master for torts of servant, 646. 
 Liability of master to servant for negligente, 606. 
 Liability of parent for torts of child, 334. 
 Liability of servant for his own torts, 655. 
 
 TRESPASS, 
 See Torts. 
 
 VOID AND VOIDABLE CONTRACTS, 
 See Contracts. 
 
 VOID AND VOIDABLE MARRIAGES, 
 See Warriage. 
 
 W 
 
 WAGES, 
 
 See Master and Servant. 
 
 WARD, 
 
 See Guardian and Ward. 
 
INDEX 769 
 
 [Vbe figures refer to pages] 
 
 WILLS, 
 
 Of drunken persons, 559. 
 
 Of infants, 467. 
 
 Of insane persons, 552. 
 
 WITNESSES, 
 
 Competency of infants, 470. 
 
 WORKMEN'S COMPENSATION ACTS, 
 In general, 635. 
 
 Abrogation of common law defenses, 638. 
 Injuries arising out of and In course of employment, 639. 
 Persons to whom acts apply, 638. 
 Willful misconduct, 641. 
 
 WRONGS, 
 
 See Torts. 
 TIFF.P.& D.Kei,.(3d Ed.)— 49 
 
 ▼VST FUBUSHING CO., PBINTXRB, BT. PAITL, mm* 
 
KF 50?5 T56 1921 c.l 
 
 Author Vol. 
 
 Tiffany, Walter CSieckley 
 
 Title Copy 
 
 Hdbk on the law of persons and 
 
 domesi 
 
 ic relations 
 
 Date 
 
 Borrower's Name