ties.

of

Corporations.

ise their promissory notes (a) and notes and bills have been is- Sect. 1. the capacity sued by other companies signed by their agent without objection of the con(". A restraint, however, is imposed by the legislature in regard tracting parto the mode in which corporations (except the Bank) may draw hills; it having been enacted (c), "That it shall not be lawful for any body politic or corporate whatsoever, or for any other * persons whatsoever, united or to be united in covenants, or "partnership exceeding the numbers of six persons, in England, to * borrow, owe, or take up any sum or sums of money, on their "bills, or notes, payable at demand, or at any less time than six "months from the borrowing thereof, during the continuance of "the privilege of exclusive banking granted to the governor and company of the Bank of England." But this statute does not preclude the members of a commercial firm, although exceeding six in number, from drawing bills at a shorter date than six months (d).

* With respect to the competency of the contracting parties in

(a) 15 Geo. 2. c. 13. s. 5.-5 Wm. and Mary, c. 22.—The King v. Bigg, 3 P. Wms. 432, 4.-Bac. Ab. Corporations, E. 3.

(6) Edie v. East India Company, 2 Burr. 1216. Ryall v. Rolle, 1 Atk. 181.-Watson's Law of Partnership, 1st edit. 53.-Kyd. on Bills, 32.-In Slark v. Highgate Archway Company, 5 Taunt. 792 which was an action of assumpsit upon their promissory note in the common form, and indorsed to the plaintiff, it seems to have been considered, that if a corporation is authorized to raise money on promissory notes for a particular purpose, evidence might be received to impeach the notes by shewing they were issued for another purpose; and the court said, that assumpsit would not lie against a corporation, unless the act which authorized the making of promissory notes eo nomine by such corporation ex vi termini, impliedly em powered the corporation to make a promise.

(c) 6 Ann. c. 22, s. 9.-15 Geo. 2. c. 13. s. 5.

(d) Wigan v. Fowler and others, 1 Starkie N. P. C. 459. This was an action against seven defendants co-partners, not bankers, on their promissory note for 10001. payable three months after date. It was objected by the defendants, that the note was illegal, contrary to the above statute. At the trial, a verdict was found for the plaintiff, and upon motion to set it aside, Lord Ellenborough said, this objection, if it were available, would affect the holders right of action in every case where it might be contended that the number of the members of the firm, by which the bill was drawn exceeded six. Suchfa decision would virtually incapacitate any number of persons exceeding six, from entering into a commercial partnership, to draw bills of exchange; and great inconvenience would result, since it would be incumbent on every person before he took a bill, to inquire whether the firm by which it was drawn consisted of more than six members. The statute must be construed secundum subjectam materiam, and it was the manifest object of the legislature in framing this act, to protect the Bank of England against rival Banks. If a commercial partnership be made a mere colour for raising money by the issue of notes, I agree that the case would fall within the prohibition of the statute. Bayley, J. Admitting the case to be within the statute, the note would not be void, and the illegality would affect those only who knew the defect. The intention of the legislature was to protect the Bank of England against other banking companies, and the construction contended for might defeat their remedy in almost every instance in which they discounted bills. Mr. Jusvice Holroyd expressed the same opinion.

[ *21

Sect. I. Of general, the law has wisely taken care of the interests of those the capacity who either have not judgment to contract, as in the case of infants; tracting par- or who having judgment to contract, cannot in law have a fund

of the con

ties.

Infants.

or property to enable them to perform the contract, as in the case of a feme covert; and therefore it has, in general, rendered the contracts of infants voidable, and those of married women absolutely void. In general all contracts made by infants, otherwise than for necessaries, which is a relative term depending on their station in life, are voidable by them (a); and a bond in a penalty, or for the payment of interest (b), and bills of exchange, in the course of trade, and not merely for necessaries, are clearly not [22] binding upon them (c); and though it has been considered, that a single bill or bond for the exact sum due, and not in a penalty given for necessaries, is obligatory upon an infant (d), "yet an indorsee of a bill or note cannot sue an infant upon either of those instruments, though given for such consideration, and it is yet undecided, whether, in any case, those instruments are available against infants, even between the original parties (e). However

(a) Hands v. Slaney, 8 T. R. 578.

(b) Fisher v. Mowbray, 8 East. 330.

(c) Williams v. Harrison, Carth. 160.-3 Salk. 197.-Sel. Ca. 17. S. C. Williamson v. Watts, 1 Campb. 552.-Com. Dig. Enfant, C. 2.-In Williamson v. Harrison and others, the case was thus:-In an action on the case brought by the plaintiff against the defendants, being merchants, according to the custom of merchants, upon a bill of exchange drawn by them and protested, R. Harrison, one of the defendants, pleaded infancy in bar, &c. And upon a demurrer to this plea, supposing that infancy was no bar to this action, founded on the custom of merchants, the court, without argument, over-ruled the demurrer, for they clearly held, that infancy was a good bar, notwithstanding the custom; for here the infant is a trader, and the bill of exchange was drawn-in course of trade, and not for any necessaries; so judgment was entered, that the plaintiff nil capiat, per billam v. R. Harrison, and Holt, Ch. Justice, cited a case, that where an infant keeps a common inn, yet an action on the case upon the custom of inns, will not lie against him, which is stronger than the principal case.

(d) Co. Lit. 172. (a.) n. 2.—1 Rol. Abr. 729. 1. 20.-1 Lev. 86.-8 East. $30, -Trueman v. Hurst, 1 T. R. 41.

(e) It is laid down in Mr. J. Bayley's Treatise on Bills, 19. “ that an infant "cannot make himself responsible for the payment of a bill or note, even "when it is given for necessaries," and in Williamson v. Watts, 1 Campb. 552, Sir James Mansfield appears to have considered, that an infant could not be liable as acceptor of a bill, although drawn on account of necessaries; the case was this. "Assumpsit on a bill of exchange. Plea, infancy. Replication, that the bill was accepted for necessaries, and isssue thereupon. When the case was opened, Sir James Mansfield, C. J. said, this action certainly cannot be maintained. The defendant is allowed to be an infant; and did any one ever hear of an infant being liable as acceptor of a bill of exchange? The replication is nonsense, and ought to have been demurred to. As the point of law is so clear, I am strongly inclined to nonsuit the plaintiff, however, if I am required to hear the evidence, I will do so, and the defendant will find redress in the court above, should the verdict be against her. It appeared, that the defendant was a woman of the town, and that the consideration for the acceptance, was the sale of silk

Infants.

apes is liable as *acceptor of a bill of exchange, which was Sect. 1. Of the capacity dam whilst he was an infant, but accepted after he came of of the con4); and as the contract of an infant is only voidable, and not tracting parlutely void, he may by a promise to pay the bill made, after he ties. mins twenty-one render it as operative against him, as if he had been of age at the time it was made (b). Such promise however must be express; and a bare acknowledgment of the debt is not a sufficient confirmation, nor will a promise to pay a part, or an actual payment of part, create any further liability (c)(1). An

stockings and other expensive articles of dress; whereupon Sir J. Mansfeld directed a nonsuit-See also Selwyn's Ni. Pri. 4th edit. 287. But in the case of Trueman v. Hurst, 1 T. R. 40. and MSS. the court appear to Lave been of opinion, that a note given by an infant for necessaries is valid. From the manuscript of that case, it appears that the declaration was on a note, whereby the defendant acknowledged himself to be justly indebted to the plaintiff, in the sum of 107. for board and lodgings, and for teaching and instructing the defendant in the business of hair-dressing, and did therefore promise to pay the same to the plaintiff on demand; and after the common counts, there was an account stated. The defendant pleaded infancy to the whole declaration; and the plaintiff replied, that the note was given for necessaries, and that the sum mentioned in the other counts were due for necessaries; to which replication the defendant demurred; and it was argued for the defendant, that an infant cannot bind himself by a promissory note, even for necessaries; that there is a great difference between a single bill and a promissory note, because an action on the first, must be brought in the name of the person to whom it was given, in which case the consideration may be gone into, whereas a promissory note is negotiable. The court desired the counsel for the plaintiff to confine himself to the objection to the account stated, from which it has been observed, that it may be inferred, that they considered that the action on the note was sustainable, Bayley on Bills, 20, in notes.

In Kyd on Bills, 29, it is urged, that if a single bill for necessaries be valid, there seems no reason why a bill or note for the same consideration should not be binding; and a learned author has observed, that the circumstance of a single bill for necessaries being valid, seems to afford an argument from analogy, to shew that a promissory note given by an infant for necessaries would be binding, if payable only to the person who supphed them, though he cannot be bound by his signature to a negotiable bill or note, as that not only primâ facie admits the debt and operates as an account stated, but if valid, would render him liable to an action at the suit of an indorsee, in which the amount of the original debt could not be disputed, 1 Campb. 553. notes. And it has been observed in Mr. Holt's Ni. Pri. Cas. 78, 9. that as a promissory note by the stat. of Ann. may be indorsed over, it should seem, that an infant would not be bound by such security, at least not whilst it is in the hands of an indorser, and in the hands of the person to whom it was originally made payable, it would probably be deemed to have no other qualities than a promissory note before the stat. of Ann, that of being merely evidence of a debt.

(4) Stevens v. Jackson, 4 Campb. 164.

(4) Taylor v. Croker, 4 Esp. Rep. 187.

(e) Dilk v. Keighley, 2 Esp. Rep. 481.-Thupp v. Fielder, 2 Esp. Rep.

23.

[ * 23 ]

(1) The same doctrine is asserted in respect to infants in the United States. They are not liable upon notes given by them, although carrying on trade as adults. Van Winkle v. Ketcham, 3 Caine, Rep. 323.. A negotia

ties.

Of Married

Women.

[ * 24 ]

Sect. 1. Of infant however, may certainly sue on a bill in his favour (a). the capacity A married woman cannot be a party to a bill of exchange, proof the contracting par- missory note, or other contract, so as to charge herself to liability. in a court of law, although she be living apart from her husband, and have a separate maintenance secured to her by deed; (b) and a feme covert sole trader in London is not liable* to be sued as such in the courts at Westminster (c). But sometimes a feme covert is chargeable in equity (d); and where a married woman borrowed money, and gave her promissory note payable on demand, with interest, on a bill filed against the husband and wife, and trustees acting under a marriage settlement, it was decreed, that the debt should be paid out of the rents and profits of the estates, settled to her separate estate (e); so when her husband is

(a) Warwick v. Bruce, 2 M. & S. 205.-6 Taunt. 118.-Kyd. 30.-Bac. Ab. Infants, 1. 6.

(b) Marshall v. Rutton, 8 T. R. 545.

(c) Beard v. Webb, 2 Bos. & Pul. 93.

(d) Vin. Abr. Baron & Feme, N. 3. pl. 4.-2 Ves. sen. 190.-2 P. Wms. 144.-2 New. Rep. 163.—Bac. Abr. Baron & Feme, K.

(e) Bullpin v. Clarke, 17 Ves. jun. 366. This was a bill filed against Clarke and his wife, and the trustees under the marriage settlement, dated the 2d and 3d May, 1806, previous to the marriage, and vesting several real estates and personal property in the trustees, for the sole and separate use of the wife; and the bill stated, that on the 4th October, 1806, the wife requested the plaintiff to lend her 2501, which she promised should be repaid to him with interest, out of her separate property; and the plaintiff knowing that she had such a separate property, accordingly advanced her that sum for her separate use; and she gave him her promissory note for the sum of 2501, with lawful interest upon demand, dated the 4th of October, 1806. By a letter from the wife to the plaintiff, in answer to an application for repayment, she acknowledged the debt, and promised to pay it out of her separate estate. The note and the letter were admitted by the answer. Sir Samuel Romilly, for the defendants, contended, that the promissory note was not the execution of a power; an appointment of any part of this settled property, and had no reference to it; constituting, merely a debt for a simple contract, and that there was no authority establishing the right of a court of equity to apply the rents and profits of the separate estate of a married woman to the payment of a debt. The decree thereupon directed the trustees to receive the rents and profits of the several estates in the marriage settlement mentioned; that an account should be taken of what was due to the plaintiff, for principal, interest, and costs, upon the note of the wife; and that the trustees should pay to him

ble note given by an infant even for necessaries is void. Swasey v. Adm. of Vanderhayden, 10 John. Rep. 33. Fenton v. White, 1 Southard's Rep. 100. And the same evidence has been required of the confirmation of a voiɗable contract of an infant after full age, as of the execution of a new one. Rogers v. Hurd, 4 Day's Rep. 57. But if infancy be set up against a note executed in a foreign country, the party is bound to shew that by the law of such country, such plea is a good defence. Thompson v. Ketcham, 8 John. Rep. 189. A note made by an infant for a valuable consideration, but not for necessaries, is not confirmed by a clause in his will made after coming of age, directing all his just debts to be paid. Smith v. Mayo, 9 Mass. Rep. 62.

ties.

[ *25 ]

in legal consideration dead, as where he is transported, banished, Sect. 1. Of &c.she may contract so as to be liable at law (a). And though it the capacity of the conhas been decided, that if a married woman give a promissory tracting parrate, and after the death of her husband, promise to pay it in consideration of forbearance, such promise is void; yet if the wife had aseparate estate secured to her, at the time she gave the note, the promise may be enforced at law (b). If a bill or promissory note be made to a feme sole, and she afterwards marry, being possessed of the note, the property vests in the husband, and he alone can indorse the same (c); and if such instrument be made payable to a feme covert, the legal interest vests in the husband, and he alone can indorse the same, though the wife might join him in an action (d). And where a note was given by the defendant to a married woman, knowing her to be such, with intent that she should indorse it to the plaintiff, in payment of a debt, which she owed him in the course of carrying on a trade, in her own name, by the consent of her husband; yet it was held, that the property in the note vested in the husband, and that no interest passed by an indorsement in her name to the plaintiff (e). But in another case, where on the note being presented for payment, the defendant promised to pay the indorsee of the wife, who passed and indorsed by a name different from her husband, and with his know

what should be found due, in respect of such principal, interest, and costs, out of such rents and profits; that they should account annually for the rents and profits, and pay to the plaintiff the balance which should from time to time be reported due, until the principal, interest, and costs shall be fully paid.

(4) De Gaillon v. L'Aigle, 1 Bos. & Pul. 358, 9.-Carrol v. Blencow, 4 Esp. 27.

(6) Lloyd. Lee, 1 Stra. 94.-Lee v. Muggeridge, 5 Taunt; 36.

(e) Connor v. Martin, cited 3 Wils. 5.

Ann Parry

(d) Philliskirk et Ux v. Pluckwell, 2 M. & S. 393. (e) Barlow . Bishop, 1 East. 432.-3 Esp. Rep. 266. S. C. was a married woman, carrying on trade in her own name with the consent of her husband. She became in the course of such trade indebted to the plaintiff, and to enable her to pay him, defendant, who knew that she was married, gave her a note, payable to her or order for the amount of the debt; she indorsed it in her own name to plaintiff, and he brought this action. Lord Kenyon, at the trial, thought it not maintainable, and saved the point, and after a rule for a nonsuit and cause shewn, said it was clear, that the delivery of the note to the wife vested the property in the husband; that as he permitted her to trade on her own account, and this was 2 transaction in the course of that trade, he was not prepared to say, that if she had indorsed the note in his name, that that would not have availed: and the jury might have presumed an authority from her husband for that Frpose. But the indorsement being in her own name, it was quite impossible that it could pass away the interest of her husband by it.-Rule absolute.