if the husband's money were the consideration of the note, the wife should be held trustee for the husband's representatives.() But we think it would remain hers, if the husband, being solvent, intended in good faith that it should be her chose in action.(m) The husband, on such a note, may sue alone, (n) or may join the wife; (o) if he sue alone, debts due from him may be set off; if he join the wife, it seems that debts due from her before marriage may be set off. (p)

If a bill or note be given to a wife for her separate use, and the consideration be her distributive share in an intestate estate, it becomes, as it is said by the common law, the property of the husband.(g) That it would be so, so far that he alone could indorse, we should readily admit; yet we cannot but doubt whether it becomes at once the property of the husband, in the sense of a chose in action reduced to possession.

A bill being drawn payable to a wife, and the husband suing the drawer, the defendant cannot object that the wife had no

note, as the judgment would survive to her" This doctrine, therefore, is not inconsistent with that stated ante, p. 79, note d. See further, Hart v. Stephens, 6 Q. B. 937; Scarpellini v. Atcheson, 7 id. 864; Howard v. Oakes, 3 Exch. 136; Guyard ». Sutton, 3 C. B. 153; Wilder v. Aldrich, 2 R. I. 518; Poor v. Hazleton, 15 N. H. 564. (4) In Gaters v. Madeley, supra, Parke, B. said: "Whether the executor of the husband, where the money advanced was his, could compel an account from the executor of the wife, who recovered on the note, by a bill in equity, is another matter, with which, in a court of law, we have nothing to do, and which could make no difference in this case, as it would not vary the right of action on the note." In Draper v. Jackson, supra, where the consideration of the note was the sale of real estate belonging to the wife, Jackson, J. said: "In considering this question, we except the case of a voluntary gift by the husband to his wife; as when he advances his own money or other property, and takes for it a note or bond to himself and his wife. This, like every other voluntary conveyance, would, without doubt, be void as against the creditors of the husband. But when no such fact appears, and especially when, as in the present the contrary appears, the law seems to require that the wife shall have the note or bond, if she survives." And see Adams v. Brackett, 5 Met. 280; Guyard v. Sutton, 3 C. B 153.

case,

(m) See preceding note. And see cases cited supra, p. 86, note f.

(n) Burrough v. Moss, 10 B. & C. 558; Sutton v. Warren, 10 Met. 451. And in McNeilage v. Holloway, 1 B. & Ald. 218, where a bill of exchange was payable to a feme sole, who intermarried before the same was due, it was held, that the husband might sue in his own name, without joining the wife, although the latter had not indorsed the bill. But see, as to this case, Richards v. Richards, B. & Ad. 447; Ga.

ters v. Madeley, 6 M. & W. 423; Hart v. Stephens, 6 Q. B. 937.

(0) Philliskirk v. Pluckwell, 2 Maule & S. 393.

(p) Burrough v. Moss, 10 B. & C. 558.

(g) Commonwealth v. Manley, 12 Pick. 173.

right to demand payment of the drawee, and that consequently there has been no legal demand or presentment. (r)

Where a wife lent to her husband and two others money which belonged to her as administratrix, taking their joint note, it was held that she could not sue this note while the husband lived, but might sue the other parties after his death. (s) But a note given by the husband alone to the wife during coverture is void, although the consideration was money belonging to the wife at the time of their marriage. Consequently, the wife cannot maintain an action on the note, after her husband's decease, against his executor.()

Where a note secured by mortgage was made to husband and wife to secure the purchase-money of land belonging to the wife, the husband dying, the note and mortgage went to the wife, and not to his administrators.(u)

Payment to a married woman of a sum due on a note to her will not discharge the party making it, unless the payment were authorized by the husband. (v)

There are some rules or principles in relation to indorsement and acceptance when made by a married woman, or of a note or bill to a married woman, which we shall consider when we treat, in a later chapter, of indorsement and acceptance specifically.

SECTION III.

OF PERSONS UNDER GUARDIANSHIP.

THESE are either infants, of whom we have already spoken, or those who are under guardianship under our State statutes, as spendthrifts, drunkards, &c., or the insane. Generally these statutes make such persons incapable of entering into contracts. (w) If their guardians or trustees sign notes for them, affixing to their names their office, as "A. B., guardian," they are neverthe

(r) Cathell v. Goodwin, 1 Harris & G. 468.

(s) Richards v. Richards, 2 B. & Ad. 447.

(t) Jackson v. Parks, 10 Cush. 550; Sweat v. Hall, 8 Vt. 187.

(u) Draper v. Jackson, 16 Mass. 480.

(v) Byles on Bills, 6th ed.,

p. 51.

(w) Smith v. Spooner, 3 Pick. 229; Manson v. Felton, 13 Pick. 206. See Chew v. Bank of Baltimore, 14 Md. 299.

less held personally.(x) One reason is, that the note would otherwise be inoperative, as the guardian cannot bind by such an instrument the person or the property of his ward. Another is, that it is still the promise of the signer, and the name of his office is but a part of his description. Undoubtedly he may secure himself from personal liability by saying that he promises to pay out of the ward's estate, and only if that be sufficient. But such an instrument would not be a regular promissory note. In a late case, where the guardian sold property of minors, and took notes payable to his order as guardian, it was held that an indorsement by him passed the title to a person who received for value and in good faith, the words guardian, &c. being merely words of description. (y)

SECTION IV.

OF AGENTS.

A MAN may do by his agent whatever he can do himself, and his agent can do for him. (2) And any person can be the agent of another, who is physically and mentally capable of executing the agency. At least the common personal disabilities do not

(x) In Thacher v. Dinsmore, 5 Mass. 299, where one gave a negotiable note, as guardian to an insane person, it was held, that he was liable in his individual capacity, after his guardianship was discharged Parsons, C. J. said: "If an action is maintainable against any person, it must be the defendant; for the guardian of an insane person cannot make his ward liable to an action as on his own contract, by any promise which the guardian can make. Neither can the defendant be sued in his capacity of guardian, so as to make the estate of his ward liable to be taken in execution; for the judgment is not against the goods and estate of the ward in his hands, but against himself. A creditor may sue the insane person, who shall be defended by his guardian, and in that case, judgment being against the insane person, it may be satisfied by his property. The defendant's description of himself in the notes as guardian cannot vary the form of the action; but it is for his own benefit, that, on payment of the notes, he may not be precluded from charging the moneys paid to the account of his ward. If the defendant, therefore, was ever liable to this suit, he must continue liable, notwithstanding the discharge of the guardianship; for by that the plaintiff's rights cannot be affected, whose claim is on the defendant personally, and rot on his official character." Forster v. Fuller, 6 Mass. 58, and Robertsons v. Banks, 1 Smedes & M. 666, are to the same effect.

(y) Thornton v. Rankin, 19 Misso. 193.

(z) Combes's Case, 9 Rep. 75.

incapacitate one from acting as agent, as infancy or coverture. (a) Nor is any particular form or mode of appointment necessary, nor any especial way of executing the agency, other than that which the authority itself designates.

It seems formerly to have been held, that only the formal execution of an instrument in the name of the principal by the agent, sufficed. And this is still the more correct way. A, being the agent of B, should sign any paper which he executes as B's paper, "B by A," and not "A for B." In the first case the execution is B's, by his instrument A; in the other it is A's, for his employer B; or in other words, the technical rule was, that in the first case it was B's promise by A, and in the latter, A's promise made at the request of B. Now, however, it seems to be well settled, that the actual intent of the parties, if it is obvious and certain, prevails over this distinction, and determines whether the act was that of the principal or of the agent. (b)

It seems to be common among commercial men, at least in England, for an agent, as A, to sign "A by procuration of B," where B is the principal. But this is inaccurate; for it might import that B was the agent, signing by procuration for A the principal.(c)

It has been doubted whether a note, executed by an agent by signing the name of the principal merely, without adding anything to indicate that the signature was by an agent, would be binding on the principal. (d) Undoubtedly there are grave ob

(a) Co. Litt. 52 a.

(b) See 1 Parsons on Cont. 47, note x.

(c) See note to Davidson v. Stanley, 2 Man. & G. 721.

(d) Wood v. Goodridge, 6 Cush. 117. This was the case of a mortgage deed and note made under a power of attorney under seal, by simply signing the name of the principal opposite to a seal in the case of the deed, and in the case of the note by simply writing the principal's name at the foot. It was not necessary to decide the point, the court being of opinion that the power, though very general in its terms, did not confer authority to mortgage, nor to borrow money and bind the principal by a promissory note. But the question of the manner of execution was much considered, and upon that point Fletcher, J. said: "It should appear upon the face of the instruments that they were executed by the attorney, and in virtue of the authority delegated to him for this purpose. It is not enough that an attorney in fact has authority, but it must appear by the instruments themselves, which he executes, that he intends to execute this authority. The instruments should be made by the attorney, expressly as such attorney; and the exercise of his delegated authority should be distinctly avowed upon the instruments themselves. Whatever may be the secret intent and purpose of the attorne or whatever may be his oral declaration or profession at the time, he does

jections to such a mode of execution, and it ought never to be adopted; but still we think it would be valid, and the agent's authority might be shown by parol.(e)

It is conceded, that if the name of the principal is signed by an agent in the presence of the principal and by his direction, this will be sufficient to bind the principal, though there be nothing on the face of the note to show the agency.(ƒ)

If the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent, he will be personally liable on the note, and the principal will not be liable. (g) And although it could be proved that the agency was disclosed to the payee when the note was made, and that it was the understanding of all parties that the principal,

not in fact execute the instruments as attorney, and in the exercise of his power as attorney, unless it is so expressed in the instruments. The instruments must speak for themselves. Though the attorney should intend a deed to be the deed of his principal, yet it will not be the deed of the principal, unless the instrument purports on its face to be his deed. The authority given clearly is, that the attorney shall execute the deed as attorney, but in the name of the principal." See ante, p. 80, note g; 1 Parsons on Cont 96, note gg.

(e) This appears to have been regarded as clear in several cases, which have never been questioned. Thus, in Neal v. Erving, 1 Esp. 61, it was held, that where one person subscribed a policy of insurance with the name of another, proof of his having done it in many instances is sufficient to charge him whose name is so subscribed, without producing any power of attorney. So also, in Watkins v. Vince, 2 Stark. 368, it was held, that evidence that the son of the defendant had, in three or four instances, signed bills of exchange for his father, is sufficient, in an action against the father on a guaranty, to warrant the reading of an instrument purporting to be a guaranty by the father in the handwriting of the son. And see Llewellyn v. Winckworth, 13 M. & W. 598; Cash v. Taylor, Lloyd & W. Merc. Cas. 178; Barber v. Gingell, 3 Esp. 60; Brigham v. Peters, I Gray, 139. It may be added, that Sergeant Manning (a very high authority), speaking of the manner in which an agent should sign, says: "The proper mode of signing by procuration is, either to use the name of the principal only, or to sign, ‘A. B. (the principal), by, or by the procuration of, C. D. (the agent).'" See the note to Davidson v. Stanley, 2 Man. & G. 721.

(ƒ) This was decided in Morse v. Green, 13 N. H. 32. And the rule is there stated in general terms, that if the defendant have authorized another to subscribe his name to a note, the fact that the signature was placed there by an agent need not appear on the face of the note; and parol evidence is admissible to prove that the name of a person who appears to be one of the makers of a note was not written by him, but by another person by his direction; as such evidence neither limits nor enlarges the terms of the contract. And see Wood v. Goodridge, supra: Haven v. Hobbs, 1 Vt. 238.

(g) There is an apparent (but only apparent) exception to this rule, when the principal carries on business in the name of an agent. In that case, the name of the agent is the name of the principal, pro hac vice. Bank of Rochester v. Monreath, 1 Denio,

402.