credit and take the title in her own name;1 and she may bind herself for improvements thereon.2

The present rule may be stated thus: A married woman may now in this State bind herself by contracts made in her separate business or relating to her separate property; and such contracts may be enforced in law or equity the same as if she were unmarried. Her other contracts do not bind her personally, but may be enforced in equity against her separate property, provided her intention to charge it is stated in the contract.3

The rule is hardly satisfactory; since a married woman carrying on a trade or business may bind herself personally by contracts of purchase or sale, while a married woman who does not thus engage in trade has no such power. The want of uniformity in the rule evidently was not intended; it has grown out of the settled principle of construction that binds our courts to limit the effect of a statute modifying the common law to the words of the statute.4

It will be easy to apply these principles to the contract of deposit. Where the common law remains intact, the married woman cannot render herself liable as a depositary. Receiving goods into her custody without consent of her husband, she does not bind either him or herself; but if the goods come into his custody, or if he voluntarily retain them, knowing the purpose for which they were received, he will be responsible for them. This is on the principle that where the circumstances call upon him either to adopt or repudiate her act, it is his duty to act promptly. Unless he does so, he certainly cannot be in any better position than one who comes into the possession of goods by finding.

5

The wife often acts as the agent of her husband; but her authority so to act must be shewn affirmatively, by direct proof of her authority or by proof of facts and circumstances from which it may be inferred.' It follows that a delivery to the wife of the bailor is not equivalent to a delivery to him. Where she obtains the goods from a bailee by fraud, an action may indeed be maintained against both husband and

1 Knapp v. Smith, 27 N. Y., 277; Draper v. Stouvenal, 35 N. Y., 507. 2 Fowler v. Seaman, 40 N. Y., 592.

3 Corn. Ex. Ins. Co. v. Babcock, 42 N. Y., 613.

4 Yale v. Dederer, 18 N. Y., 265; S. C., 22 id., 450; Ballin v. Dillaye, 37 N. 35.

Kowing v. Manly, 49 N. Y., 192, and authorities cited in the opinion of the Court.

6 Berwick v. Dusenberry, 32 How. Pr., 348.

71 Greenl. Ev., § 185; Goodwin v. Kelly, 42 Barb., 194. The consent of the wife to the taking of her husband's property will not prevent a conviction of the wrong-doer for the larceny. The People v. Cole, 43 N. Y., 508.

wife for the wrong; but this liability will not prevent a recovery by the bailor against the bailee on the contract of bailment.1

§ 14. Persons of unsound mind and memory cannot enter into a binding contract. There are four kinds of persons whom the law recognizes as non compos mentis, and incapable of contracting: 1. Idiots, who are such from birth by a perpetual infirmity. 2. Those who by sickness, grief, or other accident, wholly lose memory and understanding. 3. Lunatics, who sometimes have, and sometimes have not understanding, and are therefore incapable, so long as the infirmity continues. 4. Lastly, they that for a time deprive themselves by their own vicious acts, of memory and understanding, as they that are drunken.2 None of these, while so afflicted, have what is termed discourse of reason. An idiot is one who has not any use of reason, has no understanding to tell his age, who is his father or mother, or what shall be for his profit and loss; for he "is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters." 773 Lunatics are such as occasionally labor under fits of insanity, and can enter into contracts only during lucid intervals. Those who have lost their understanding by calamity, or demented themselves by drunkenness, are regarded as incapable of discharging the ordinary duties of life.

An infant is capable of contracting, but cannot bind himself by contract that is to say, the law gives him the personal privilege of repudiating his contract, while it at the same time holds his agreement a sufficient consideration to sustain undertakings made to and with him. As a rule, his contracts are not void, but merely voidable. Until he repudiates them, they remain good. No other person can take advantage of his privilege; his promises have not in themselves the essence of a contract, that is obligation, yet they constitute a valid consideration for a mutual promise by another; and also a sufficient consideration for a new promise by the infant, when he shall be capable of making a binding promise.

In respect to his contracts which remain wholly executory, no action

1 Kowing v. Manly, supra. The common law liability of the husband for his wife's rested upon two distinct grounds, viz. 1, his control over her conduct, and 2, his right of property in the goods acquired by her. Reeves' Domestic Relations, 71, 148; Mathews v. Fiestel, 2 E. D. Smith, 90; Rowe v. Smith, 45 N. Y., 230.

2 Stewart v. Lispenard, 26 Wend., 299.

31 Black. Comm., 304.

Mason v. Denison, 15 Wend., 64; Millard v. Hewlett, 19 Wend., 301; Slocum v. Hooker, 13 Barb., 536.

to enforce them can be maintained against an infant; and even where his contract has been partly performed, the law allows him the privi lege of refusing to go on under it. In short, he cannot be compelled to perform a contract by virtue of anything contained in the terms of it. But where he receives and retains the benefits of the contract on coming of age, he cannot escape from its burdens. He is not allowed to affirm it in part, and reject it as to the residue. If he buys and pays for property, neither law nor equity will suffer him to retain the property and recover back the purchase money.*

It is not material here to consider in what cases an infant may bind himself for necessaries and the like; but it is material to bear in mind that infants are liable for their tortious acts, such as trespass, assault, and fraud, in the same manner as adults. If an infant purchase goods under fraudulent misrepresentations, a recovery may be had against him in an action of trover;5 or he may be indicted and punished for obtaining goods on false pretenses. An action on the contract will not be supported; nor can his contract be turned into a tort for the purpose of charging him. The action, disaffirming the contract, must be founded upon the infant's tortious act; because the law does not hold him liable on the contract, even where it is infected with fraud.o

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10

An infant may avoid his contract at any time before and within a reasonable time after he comes of age. If he hire a horse to go a journey, he engages to use ordinary care and diligence to protect the animal from injury, and to return him at the time agreed upon. A bare

1 Whitmarsh v. Hall, 3 Denio, 375.

2 Medbury v. Watrous, 7 Hill, 110.

3 Henry v. Root, 33 N. Y., 526, 536; Lynde v. Budd, 2 Paige Ch. R., 191.

4 Bartholomew v. Finnemore, 17 Barb. 428; Kitchen v. Lee, 11 Paige Ch. R., 107.

Bullock v. Babcock, 3 Wend., 391. In this case an infant of twelve years was adjudged liable in an action of trespass, assault and battery, viz., for shooting the plaintiff, his playfellow, with a bow and arrow. See Conklin v. Thompson, 29 Barb., 18. Scott v. Watson, 46 Me., 362. And in Wallace v. Morss, 5 Hill, 391, an action of tort was maintained against the defendant for obtaining goods of the plaintiff fraudulently, with an intention not to pay for them. See also Badger v. Phinney, 15 Mass., 359; Homer v. Thwing, 3 Pick., 492; and cases cited in Eckstein v. Frank, 1 Daly, 334.

6 The People v. Kendall, 25 Wend., 399.

Brown v. McCune, 5 Sand., 224.

* Robbins v. Mount, 4 Robertson, 553, 560; Munger v. Hess, 28 Barb., 75. 9 Green v. Greenbank, 2 Marshall, 485; Price v. Hewitt, 8 Wels., Hurl. & Gor., 146; Gilson v. Spear, 38 Vt., 311; Hewitt v. Warren, 10 Hun., 560.

10 Chapin v. Shafer, 49 N. Y., 407.

neglect to do either will not render him liable on his contract, nor subject him to an action of trespass. But if he does any willful and positive act which amounts to a disaffirmance of the contract, the owner is entitled to the immediate possession and may maintain an action of trespass against him. Though no action can be maintained against the infant based on the contract, it is admitted that an action of trover may be maintained against him for a conversion of the property.3 The act of conversion by sale or by appropriating the property to his own use, is a tortious act. A failure by him to pay over money, received by him for a third person, where by the understanding he is not bound to pay over the same money, is not a conversion. It is a breach of

contract.

As the infant may make, though he cannot bind himself by, a contract, the law will probably imply an undertaking on his part safely to keep and return goods bailed to him, from the circumstances attending the delivery. If he repudiate this implied contract, he certainly cannot afterwards claim to hold the goods under it or to shield himself from liability by appealing to it. Hence he is liable for any positive and tortious injury to the goods, for a conversion of them, or for any act of fraud by which he deprives the owner of his property.5 A refusal to surrender the goods, or a misappropriation of them is a wrongful act, from the consequences of which the law will not protect him. The invalidity of the contract does not affect the liability of a party for a conversion of the property."

§ 15. The presumption is always that the person entering into a contract, is of sound mind and capable of contracting. The disability must

1 Eaton v. Hi.l, 50 N. H., 235.

2 Campbell v. Slakes, 2 Wend., 137. In this case it was held, that the infant disaffirmed the contract by willfully and intentionally injuring the hired horse.

3 Vasse v. Smith, 6 Cranch 226, 230; Baxter v. Bush, 29 Vt., 4C5.

Root v. Stevenson, 24 Ind., 115; Walsh v. Powers was decided on same principle; 43 N. Y., 23.

The principles recognized in analogous cases fally support the text. Marshall v. Wing, 50 Maine, 62. He is liable for a trespass though under seven years of age: Hutching v. Engel, 17 Wis., 230; Baxter v. Bush, 29 Vt., 465. He is even liable on his note, given in a settlement with the mother in his bastard child; Gavin v. Burton, 8 Ind., 69.

6 Hall v. Corcoran, 107 Mass., 251. In this case the hirer of a horse to be driven for pleasure on the Lord's day, was held liable for a conversion of the property notwithstanding the contract was illegal. The horse was let to go to a particular place, and the act of conversion consisted in injuring the horse by driving it to another place.

be established by evidence; it is treated as an exception to the general rule, to be established by the party alleging the disability.'

What is unsoundness of mind, such as will render a man incompetent to bind himself by contract? It is not casy to give a precise answer; but it is safe to say that the free consent of a rational mind is necessary to create a contract; a rule which is easily capable of being enforced in respect to all executory contracts,2 and in cases where no equity requires a partial or complete enforcement of the agreement.3 In strict law, the want of understanding prevents the meeting of minds which is essential to the creation of a binding contract. In many cases the situation of a lunatic or deranged person is like that of an infant; though incapable of binding himself, he will not be suffered to retain the consideration of an executed contract and at the same time set it aside. This is especially reasonable where the party dealing with him acts fairly and in good faith, and without any knowledge of his infirmity.*

Mere imbecility or weakness of mind, short of idiocy or derangement, or loss of mind, does not take away a man's capacity to contract. The rule is one of necessity; it is founded on the extreme difficulty of prescribing any other rule defining the strength of mind requisite for the transaction of business. To say that a man of very weak mind cannot bind himself by contract, would raise endless issues of fact and practically take away from such persons the means of self-support.

Certain rules of evidence favor the impression that the law requires a higher degree of capacity to bind one's self by contract than it does. to make a valid disposition of property by will. For example, all transfers of property and all contracts made by a lunatic or by a confirmed inebriate after the finding of an inquisition declaring his incompe

1 Jackson v. King, 4 Cowen, 207.

2 Rice v. Peet, 12 John., 503. This was the case of a note held and delivered by an incompetent party under a contract.

3 Ingraham v. Baldwin, 12 Barb., 9; S. C. 9 N. Y., 45. In this case the defence of lunacy was offered after a mortgage had been foreclosed and the premises sold; and the Court held that no one could interpose the defence unless he claimed under the mortgagor.

4 Loomis v. Spencer, 2 Paige's Ch., 153; Molton v. Camroux, 4 Exch., 17; S. C., 2 Exch., 487; Baxter v. Earl of Portsmouth, 5 B. & C., 170; 7 Dow. & Ry., 614.

Odell v. Buck, 21 Wend., 142; Jackson v. King, 4 Cowen, 207. Second childhood; Matter of Barker, 2 John. Ch., 232. Monomania connected with the disposition or management of property; Matter of Russell, 1 Barb. Ch., 38. Imbecility from epilepsy; Ridgway v. Darwin, 8 Vcs., 65..

6 Sprague v. Duel, Clarke, 90; S. C., 11 Paige Ch. 480.