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I. CH. 35.
Art. 1.
Con.

ART. 3.
Con.

1 Hop. Ch. R.
309-339.

v. Archibald

Thompson,

adm❜rs. of

§ 30 con. Decided the incapacity to sell, &c. created in a spendthrift by the stat. of 1818, ch. 60, does not extend to his promissory note. 3 Pick. 229-231, Smith v. Spooner.

And, 5 Barn. & Cres. 170, a tradesman supplied A with goods suited to his station, and afterwards by an inquisition taken under a commission of lunacy, A was found to have been lunatic before and at the time, of the supply. Held this was not a sufficient defence to the action, for the price of the goods; the plt. when he received the orders and supplied, not having any reason to suppose the deft. was a lunatic.

§ 21. Several guardians and surety, how liable. In 1801, John Turner, Jr. died, having bequeathed to his daughter Maria Eliza Turner, (Mrs Kirby) a large real and personal Kirby & wife property, and made Thompson and Dunlap executors, who Turner, John had the personal estate in their possession. In June, 1806, they, and A. Turner, were appointed her guardians, and in John Taylor, Aug. 1807, they delivered her personal estate to said A. TurJames Dunlap. ner, acting guardian. The three guardians when appointed, and John Taylor their surety, gave a joint and several bond in common form. When Miss Turner came of age, she voluntarily released Thompson, Dunlap died, and A. Turner, (her brother) became insolvent, though rich when he received her property. Held, 1. Thompson and Dunlap, as guardians, never had her property: 2. It was correct for A. Turner to be acting guardian, and receive it: 3. The three guardians were not sureties for each other: 4. Were jointly bound for their joint acts, and severally for their several acts: 5. Miss Turner's release to Thompson, discharged him, as her guardian, and in it she excepted, and did not discharge A. Turner: 6. Where several jointly, or jointly and severally, owe a debt, a release to one is a release to all, it supposes payment: 7. Not so when several are so trusted; then a release to one discharges him only: 8. Taylor was surety for all and each of the guardians, was released as to Thompson, but not as surety of A. Turner. Bill dismissed as to Thompson and Dunlap's administration, with costs: As to the other parties referred to a master, to ascertain and report the amount with which A. Turner and Taylor are chargeable, for the separate acts and defaults of A. Turner as guardian. Many cases cited.

1 Hop. Ch. R. 337-341.

22. Minors obliged in chancery to elect, to confirm an agreement or relinquish all benefits under it, on which they had recovered at law. But as they refused to sign, how could this writing be their contract, voidable only so as to bind the adults, the other party. A contract for minors to sign, but they refuse to sign it, must be as to them, null and void, though voidable only if they sign, but the adults released, and the guardian of the minors, by parol, agreed for them as to lands.

Art. 3.
Con.

$ 23. Sale of minors' real estates: Not allowed, till the II. CH. 35. master's report is made, in full compliance with the 88th general stat. of the court of chancery. 1 Hop. Ch. R. 341. 24. The writ of ravishment of ward, (see s. 15) is used in South Carolina, to try the slaves' right to freedom. Cord, 469.

1 M'

3 con. Assumpsit on a promissory note. Deft. pleaded Art. 5. infancy plt. replied a new promise when of age made to the Con. officer when he had a writ to be served on him. He said he 1 Pick. R. 202owed the plt., but was unable to pay him; he would, however, 204, Ford v. Phillips. endeavour to get his brother to be bound for him. The writ was immediately served. Held, no confirmation of the promise; which should be before the action is commenced, and direct and to the plt., not to the officer, voluntarily, not under the terror of an arrest, and with a knowledge he was by law, discharged. A mere acknowledgment of the debt, is not sufficient. See.9 Mass. R. 64; 10 do. 137; 4 Pick. 48-50.

81.

The father can recover the wages of his minor son, though 3 Greenl. 77he at a distance contracts for them, and makes a settlement, and takes a note payable at a distant day.

16. Assumpsit; account annexed; on a promise to pay 1 Pick. R. 221an annuity for dower released, &c. Held, an award on a 224, Barnaby v. Barnaby. guardian's submission that an infant heir shall pay an annuity to the widow in lieu of dower, is voidable, but not void: 2. A letter from the heir, when of age, inclosing money, and saying 'you will find inclosed the sum of in part towards your right of dower, the remainder I shall forward you in a few days. It was entirely unexpected to me that it was not paid before, as I had lodged property in A's hands to meet an annual payment.' Held, this is a confirmation : 3. Held, also, a ratification when one after come of age, accept the estate free of dower, and enjoys it several years on his guardian's contract 4. The letter ratified the award. Court cited 4 Leon. 4; 2 Buls. 69; Cro. J. 320; Godb. 120; 1 Rol. Abr. 731, ch. 45.

& al. v. Akins,

§ 17. Where guardians may recover back from a spendthrift's 4 Pick. 283— estate, monies paid, &c. Assumpsit to recover monies the plts. 298, Shearman as guardians of the deft's. intestate, a spendthrift, they had adm'x. credited in their account settled at the probate office. The plts. sold his real estate, by license of court, and so credited the proceeds, and apply them to pay his debts, some by one plt. and some by the other. Afterwards the letters of guardianship were revoked, and the spendthrift and his heirs avoided. the sales; there was no power to grant the license. Hence the plts. were compelled to repay the purchase money on the covenants. Held, 1. The plts. had a right of action against

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II. CH. 45. the deft. for the amount refunded, so much having been paid Art. 5. by them for the spendthrift, on a consideration which had

Con.

ART. 6.
Con.

2 N. H. Rep.
435--438, Lang
v. Whidden.

5 Pick. 20-27, Holyoke v. Haskins.

5 Pick. 217

Maxwell,
Adm'r.

failed 2. That the right did not accrue till the sales were avoided and the money refunded, hence the act of limitations began to run only from that time: 3. The plts. properly joined in the action: 4. The receipts of persons out of the State are admissible, proving their hand writing as evidence of charges in a guardianship account, of payments made to such persons. As to the joinder, see Osborn & al. v. Harper, ch. 42, a. 3, s. 6.

§ 5. Writ of entry; and the demandant counted on his own seisin and the tenant's disseisin. Held, if an idiot be under guardianship, a suit may be instituted by the guardian in the name of the ward, without any mention of the guardian; and the suit will be sustained: 2. In such a case, the idiot, by his guardian, may prove, that the deed, purporting to be executed by him, was signed when his faculties were so feeble as to unfit him for transacting business; in this way he may satisfy himself, and avoid his deed; but this course may be prevented, if advantage be taken of the defect, before pleading the general issue. The demandant, in the case, is called an idiot; but in fact was a non compos mentis; and the notion a man cannot be allowed to stultify himself, is rather rejected, and various cases cited, 15 Johns. R. 503, deft. allowed to prove he was insane when he gave the note.

§ 7 con. The old rule seems to have been, as in Beverley's case, and is said to be so still, in the case of a feoffment with livery of seisin. The idea was, the deed was voidable only, and so must be avoided by pleading; but as soon as it was conceived the deed was void, and the insanity proveable on non est factum, the old notion yielded to one more rational, as in Thompson v. Leach, Comb. 468; Sugden on Power, Am. Ed. 1823, 403. So the question of insanity may be properly left to evidence, on non est factum, at least in most cases. See on this subject of insanity, intoxication, &c., 4 Desaus. Ch. R. 364; 6 Munf. 15; 3 Day's R. 90; 2 Hayw. R. 394; 1 Bibb's. R. 406.

Writ of right. Held, 1. The domicil of a person non compos mentis, under guardianship, may be changed by the direction, or with the consent of the guardian, expressed or implied. See 9 Mass. R. 543.

Covenant on the intestate's decd. Held, the deed of one 220, Waite v. non compos mentis, not under guardianship, conveys a seisin, being only voidable; and page 431-435, Mitchell & al. v. Kingman. Assumpsit on a promissory note, deft., by his attorney, pleaded never promised. Held, 1. A person may

Art. 6.
Con.

plead that he was non compos mentis, or show it in evidence II. CH. 35. under the general issue, to avoid his contracts: 2. If he plead by attorney, and on examination it appears he is still non compos, his plea may be treated as void, and a guardian ad litem, may be appointed, who may plead de novo.

$15 con. Assumpsit on a negotiable note made by a minor. 2 N. H. Rep. Held, 1. Such note is not void, but may be ratified by him 51-56, Wright v. Steele. Plt. when of age: 2. His repromise is valid, though made after in review. the note is sued: 3. His debts, when proved in the usual manner, are presumed to be justly due,' and when he promised to pay all justly due,' if fraud or injustice existed the proof of them devolved on him.

§3 con. A natural guardian cannot lease the land of his ART. 7. ward, but his lease is void. 369--372, Anderson v. Darby & Con. al., by their next friend; cited 7 Johns. R. 157; 2 Wils. 129; 2 Mass. R. 55.

Nor can guardians of minors waive any benefit settled on them by a decree, and it is error to decree on such consents. 2 Rand. 409-417.

ART. 8.

Con.

§ 12 con. If a minor take a deed of land and mortgage it, all one contract, and remain in possession, or sells it, after of age, he confirms the whole transaction, the grant and mort-1 Greenl. 11 gage being both the same day; nor did the mortgagor avoid 14. the mortgage by selling with warranty after of age. See Holbrook v. Finney, ch. 130. a. 4. s. 58; Kimball v. Cunningham, Jr. ch. 32. a. 4. s. 3; Badger v. Phinney, ch. 171. a.

13. s. 17.

Haskell & al.

Minors not bound as devisees to pay legacies, &c. A de-2 Greenl. 157vised lands and bequeathed personal estate to his son, making 162, Haskell v. him executor of his will, and directing him to make certain annual payments to his mother during her life. The son assumed the trust and entered on the lands, and made the annual payments, and then died, leaving minor children, who, by their guardian, entered into the land. Held, they were not liable in assumpsit, during their minority for the yearly payments accruing after their father's death. The action was brought by the mother. The devise to the son of the lands, was requiring him to pay, deliver and perform to her, as above stated in the will. Statement of facts decided as above. The cases cited for the plt. were of devisees of age, not minors in assumpsit. Same principle in the case of a deed instead of a will.

pp. 163, 165.

16 con. A minor buys land and his friends of age give 2 Greenl. 186-their note for the price, and he promises to pay when of age, 191, Thompand when of age he, by a memorandum on the bottom of the note, acknowledged himself holden as co-surety,—in an action

son v. Linscott.

Art. 8.
Con.

II. CH. 35. against him by the payee, as an original promisor, held, the plt. might show by parol that the promise was for the deft's. own debt, and not a collateral engagement, so no new consideration necessary to be proved. Deft. remained on the land ever after he purchased it. See Packard v. Richardson, ch.

ART. 9.

Con.

2 Barn. &

Thornton v.
Illingworth.

1. a. 25. s. 1, &c.

4. The court said we go so far as to say, that where a minor son makes a contract for his services on his own ac3 Pick. R. 202. count, and the father, knowing of it, makes no objection, there is an implied assent that the son shall have his earnings.' Assumpsit for goods sold to the deft. for the purposes of Cres. 824-827. trade. Plea, infancy. Replication, the deft. ratified the contract after he came of age. Evidence of this new promise made by the minor after the action was commenced, did not sustain the replication. The judges held the original contract was absolutely void, and not merely voidable, therefore, when the action was commenced there was no ground for it; and it is the moral obligation to pay the minor is under, and his actual promise thereon, that creates the new ground of action; but in the present case that was created after the commencement of the action.

ART. 11.
Con.

486, U. States v. Green.

§ 4 con. On a habeas corpus to restore a female infant, about ten years old, to her father, the court will look into all 3 Mason, 482-- the facts of the case, stated in the return, and will not discharge the deft. (grandfather) merely because he returns the infant is not in his power, possession, or custody, if the court be not satisfied that all the material facts are disclosed : 2. An attachment is the proper remedy to bring the party into court, if not in court, and when he is, the court may immediately direct him to answer interrogatories: 3. The father is not of course, on this writ, entitled to the custody of the infant, if brought into court; but the court, when called on to act, will exercise its discretion on the subject, and place the infant where it will be most for its benefit. Cited 5 D. & E. 89; 10 Johns. R. 328; 13 do. 418; 5 East, 221; 10 Ves. 52; 2 Stra. 982.

ART. 12.
Con.

1 Pick. R. 198.

p. 206, 211.

1 Pick. R.527530, Fay,

judge, &c. v. Howe.

$7 con. When a guardian neglects to settle his account, the administrator of his surety may settle it. In this case the guardian had been removed and another appointed. The guardian settled an account in the supreme court of probate, which in an action on the probate bond was found to be fraudulent and void, as against the sureties. Held, he could not be cited anew before the probate judge to settle a correct ac

count.

$ 17. Compound interest, when allowed. bate bond of a guardian of a spendthrift.

Debt on proLarge sums of

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