state, cannot compel him to perform the contract (g),1 which, however, is not void, but voidable only, and so may be ratified in a sober moment (h).2

The contracts of infants are now either binding or void. They are so by the operation of the Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), which enacts that all contracts henceforth entered into by infants for the repayment of money lent, or for goods supplied (other than contracts for necessaries), and all accounts stated with infants, and all contracts voidable before the passing of this act, shall be absolutely void. In cases not touched by the Infants' Relief Act, 1874, the validity or invalidity of all contracts and acts done by an infant or on his behalf, during infancy, or immediately subsequent whilst under the influence of those who had the control over him during that period, is determined by a reference to the injurious or beneficial character of the contract to the infant. Those contracts of infants are held to be absolutely void which are to his prejudice, or in which there is no apparent benefit or semblage of benefit to the infant (2).3

The competency or incompetency of a married woman to appoint an agent, turns upon the nature of her rights, that is to say, upon the question whether they are those of a feme covert or those of a feme sole. The power of a married woman to appoint an agent is co-extensive with her rights to act as a feme sole. By (g) Hamilton v. Grainger, 5 H. & N. 40.

1 Gore v. Gibson, 13 M. & W. 623; S. C., Ewell's Lead. Cases on Disabilities, 734, 738, note and cases cited.

(h) Matthews v. Baxter, L. R., 8 Ex. 132.

2 See, also, Broadwater v. Darne, 10 Mo. 277; Eaton v. Perry, 29 Mo. 96; Miller v. Finley, 26 Mich. 254; Mansfield v. Watson, 2 Iowa, 111.

as it seems, tends to hold all contracts of infants (except his implied contracts for necessaries, those appointing agents and some few others) voidable only, and not void. The cases will be found collected in Ewell's Lead. Cases, 30 et seq., and in 13 Am. Law Rev. 280.

4 See 2 Story's Eq. Jur. §§ 1391-1402; Story on Agency, § 6.

Her husband may act as her agent. McLaren v. Hall, 26 Iowa, 297; Rowell

(i) See Chambers on Infancy, p. 452, v. Klein, 44 Ind. 290; Rankin v. West, and cases there cited. 25 Mich. 195; City Council v. Van Roven, 2 McCord, 465.

3 This was the rule laid down in Keane v. Boycott, 2 H. Black. 511; S. C., Ewell's Lead. Cases on Disabilities, 17, and it is supported by quite a number of authorities. It is not, however, believed to be supported by the weight of modern authority, which very clearly,

But the agency of the husband cannot be inferred from the marital relation alone. Price v. Seydel, 46 Iowa, 696; Anderson v. Gregg, 44 Miss. 170; Crawford v. Redus, 54 id. 700.

the common law a married woman cannot in her right as feme covert make a binding contract during coverture (). In order to bind her husband, she must be shown to have authority, express or implied, to act as his agent (7). She has the right of a feme sole in the following cases: When she has been divorced à vinculo, or separated by decree of judicial separation, or when deserted by her husband and in possession of a protection order (m), or when the husband has abjured the realm (n). She was in a *like position when the husband had been transported be- [12*] yond seas as a convict (o). By the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), a married woman may maintain an action in her own name for the recovery of any wages, earnings, money, and property declared by this Act to be her separate property, or of any property belonging to her before marriage, which her husband shall, by writing under his hand, have agreed shall belong to her after marriage as her separate property, and she shall have the same remedies for the protection of such property as if she were an unmarried woman. In equity the separate estate of a married woman is bound by and liable to satisfy a contract entered into by her in reference to her estate, and it will be assumed, when she has no other means of satisfying the contract, that it has been entered into with reference to such estate (p). Apparently a separate business may be carried on by a wife while she resides with her husband, unless he takes such a part in the business as to render himself principally liable (9). Under this Act a married woman may, like a feme sole, transfer stock entered or registered in her name, in the manner therein

(1) Montague v. Benedict, 3 B. &C. 631. 2 Smith on Contracts, *431; Freestone v. Butcher, 9 C. & P. 643; Leeds v. Vail, 15 Penn. St. 185; Sawyer v. Cutting, 23 Vt. 486; Swett v. Penrice, 24 Miss. 416; Burk v. Howard, 13 Mo. 241.

(m) 20 & 21 Vict. c. 85; and Ramsden v. Brearley, L. R., 10 Q. B. 147.

(n) Lean v. Schutz, 2 W. Bl. 1199 Lewis v. Lee, 3 B. & C. 297.

(0) Carroll v. Blencow, 4 Esp. 27. (p) Picard v. Hine, L. R., 5 Ch. 274. (q) Laporte v. Costick, 31 L. T., N. S. 431.

provided (r), but the entry is essential (8). Again, a married woman who is a sole trader in the city of London, independently of her husband, may, by the custom of London, sue and be sued in the city courts, with reference to her dealings as sole trader (t).1 But, as a rule, a married woman cannot be sued as a feme sole, though she has a separate estate, except for debts contracted before marriage, and for liability to a parish for the maintenance of her husband and her children (u).

A distinction is made by the common law between the contracts of alien friends and alien enemies. The contracts of the former were generally valid (x), although before 7 & 8 Vict. c. 66, they could not take a lease of a house; nor were agreements to grant them such leases valid (y); but the contracts of the latter are by

the common law altogether void (2), unless such aliens came [13*] into this country under a safe-conduct, or *unless they lived

here by the sovereign's licence (a). By the Naturalization Act, 1870 (33 Vict. c. 14), it would appear that all aliens are now able to take, acquire, hold and dispose of real and personal property of every description in the same manner in all respects as if they were natural born British subjects, and hence enjoy all the rights of contract involved in such rights.

By 33 & 34 Vict. c. 34, s. 1, a convict, that is, one against whom, after the passing of the Act, judgment of death or of penal servitude shall have been pronounced or recorded by any court of competent jurisdiction in England, Wales, or Ireland, upon any charge of treason or felony, is disabled, while subject to the operation of that Act, from bringing any action at law or suit in equity, and from alienating or charging any property, and from making any

(r) R. v. Carnatic Railway Company, 3 E. D. Smith, 310; Wieman v. AnderL. R., 8 Q. B. 299. son, 42 Penn. St. 311.

(s) Howard v. Bank of England, L.

R., 19 Eq. 295.

M.

(u) Married Women's Property Act, 1870, ss. 12, 13, 14; Hancocks v. La

(t) Bac. Abr., "Baron and Feme," blache (Mar. 9, 1878), C. P.; see, too,

1 In South Carolina married women are allowed to become feme sole traders after the manner of the custom of London. Newbiggin v. Pillans, 2 Bay, 162; Surtell v. Brailsford, id. 333; Dial v. Neuffer, 3 Rich. 78; Hobart v. Lemon, id. 131. See, also, Rouillier v. Wernicki,

Ord. XVI. r. 8.

(x) Co. Litt. 1296; Bac. Abr. "Aliens,"

D. J.

(y) Lapierre v. M'Intosh, 9 A. & E. 857. (z) Roll. Abr. "Alien," B.; Brandon v. Nesbitt, 6 T. R. 23; [8 East. 273.]

(a) Boulton v. Dobree, 2 Camp. 162; Wells v. Williams, 1 Salk. 46.

contract, except during such time as he may be lawfully at large under any licence (b). Outlaws, as the name implies, are without the protection of the law; they are civiliter mortui, and can appear in court only for the purpose of reversing the outlawry (c).1

SECT. 2. The Agent.

Incapacity to act as an agent proceeds from either natural or legal incompetency, and this latter is generally due to the violation of certain rules prescribed by the law for the guidance of the person who is otherwise competent to act as an agent, or to the nature of the subject-matter of the contract. They are framed for the purpose of preventing anyone in whom a trust or confidence is reposed from placing himself in a position in which he has an opportunity of taking advantage of his employer, or from assuming a position in conflict with his duty (d).

Agents, however, are not required to possess the same qualifications with principals; indeed, it may be laid down as a general rule that all persons of sane mind are capable of becoming agents. Few persons, if any, are excluded from exercising a naked. authority to which they are delegated. Hence monks, infants, feme coverts, persons attained, outlawed, or excommunicated, villains, and aliens, may be agents. The reason given for *this distinction between principals and agents is, that the [14*] execution of a naked authority can be attended with no manner of prejudice to the persons under such incapacities or disabilities as are involved in infancy and the rest, or to any other person who, by law, may claim any interest of such disabled per

(b) Sects. 6, 30.

(c) Re Mander, 6 Q. B. 867, 873; Aldridge v. Buller, 2 M. & W. 412.

1 See Smith on Contracts, 331. (d) Rothschild v. Brookman, 5 Bligh. N. S. 165; Gillett v. Peppercorne, 3 Beav. 78.

See post, p. 254 et seq.

Governor v. Daily, 14 Ala. 469 (a slave); Chostain v. Bowman, 1 Hill (S. C.), 270 (a slave); Lyon v. Kent, 45 Ala. 656; Brown v. Hartford Fire Ins. Co. 117 Mass. 479 (an infant partner). The wife may act as agent for her

husband. See ante, p. 11, note 7; Felker v. Emerson, 16 Vt. 653; Lang v. Waters' Adm'r, 47 Ala. 624; Pickering v. Pickering, 6 N. H. 120; McKinley v. McGregor, 3 Whart. 369; State v. Meek, 70 Penn. St. 181; Cantrell v. Colwell, 3 Head. 471.

The relation of principal and agent or master and servant may exist between a corporation and an employer of it as well as between individuals. McWilliams v. Detroit Central Mills Co. 31 Mich. 274, and cases there cited.

son after their death (e). But infants and feme coverts cannot be attorneys to prosecute suits nor to execute an authority coupled with an interest (f).1

Although few persons are disqualified from becoming agents, the conduct of those who act in that capacity is watched with great jealousy by the law. Thus no agent will ever be allowed to take upon himself incompatible duties and characters, or to act in a transaction where he has an adverse interest or employment. (g). Manifestly, if a person employed as agent on account of

(g) Dunne v. English, L. R., 18 Eq. tion for damages against the railroad 524.