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the prohibition of the statute can not be evaded, or the public policy declared by it thwarted by the device of providing that the place of performance shall be in a foreign jurisdiction, where marriage does not curtail a woman's contracting power.23 But it was determined upon a review of this case that the statute was not declaratory of public policy and that where a note is signed in the state of New Jersey, but is passed away and comes first into legal existence in the state of New York, it is in contemplation of law made in the latter jurisdiction. So a note signed by a married woman domiciled in New Jersey, and intrusted by her to her husband, thus giving him power to make for her a contract of suretyship in New York, where it came into legal existence, such a contract being valid in the latter state, by his indorsement and transfer there the wife was held to be as effectually bound to the payee as if she had executed the note in New York, and it was determined that it could be enforced against her, though it would have been void if executed in New Jersey.24 And it has been decided that a note signed by a married woman in Tennessee, but delivered and consummated in Ohio, and payable in the latter state, is an Ohio contract, and though it may be valid and enforceable against a married woman in that state, yet such a contract being voidable in Tennessee at the election of a married woman, coverture is a good defense to an action thereon in such state.25

§ 136. Who may urge defense.-The defense of coverture is a personal one and can only be availed of by a married woman and her privies in blood or representation.26 So this defense does not inure to the benefit of the indorser as he, by his indorsement, has guaranteed the capacity of the maker to contract in the manner which by the terms of the instrument she purported to contract.2

23 Thompson v. Taylor, 65 N. J. L. 107, 46 Atl. 567.

24 Thompson v. Taylor, 66 N. J. L. 253, 49 Atl. 544, 54 L. R. A. 585, 88 Am. St. 485.

25 First Nat. Bank v. Shaw, 109 Tenn. 237, 70 S. W. 807, 59 L. R. A. 498, 97 Am. St. 840.

26 Lackey v. Boruff, 152 Ind. 371, 53 N. E. 412. See West v. Miller, 125 Ind. 70, 25 N. E. 143.

27

27 Bennett v. Mattingly, 110 Ind. 197, 10 N. E. 299, 11 N. E. 792; Prescott Bank v. Caverly, 73 Mass. (7 Gray) 217, 66 Am. Dec. 473; Kenworthy v. Sawyer, 125 Mass. 28. Browning v. Carson, 163 Mass. 255, 39 N. E. 1037; Edmunds v. Rose, 51 N. J. L. 547, 18 Atl. 748, 14 Am. St. 704, 2 Bkg. L. J. 175; Erwin v. Downs, 15 N. Y. 575; Archer v. Shea, 14 Hun (N. Y.) 493; Haly v. Lane, 2 Atk.

And it has been declared in such a case that, "while a promissory note between a husband and wife is void between the original parties, an indorser when sued upon a contract between him and his indorsee is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his or her own liability. The consideration moving from the party who takes the note, with the signature of the maker and of the indorser, is sufficient to support the promise of the latter, and the fact that the indorsement is for the accommodation of the maker affords no defense to the indorser."28 Nor can a second indorser avail himself of the defense that the first indorser was a married woman. 29 And a husband can not avail himself of this defense in an action against him on notes executed by him jointly with his wife, as purchase money notes for land,30 or where notes have been signed by him as surety for his wife.31 A guarantor is likewise precluded from availing himself of such a defense.32 So it has been decided under a statute providing that "a married woman shall not enter

181. See State Bank v. Fearing, 33 Mass. (16 Pick.) 533, 28 Am. Dec. 265; Burrill v. Smith, 24 Mass. (7 Fick) 291, 295. It is a part of the contract of indorsement that the paper indorsed has been made by a person competent to contract in that form. Consequently the fact that the maker was not legally bound affords no defense to an action brought upon the paper against the indorser. Archer v. Shea, 14 Hun (N. Y.) 493. An indorsement is a guaranty of the genuineness of the previous signature and of the capacity of the parties to contract. Ogden v. Blydenburgh, 1 Hilt. (N. Y.) 182. "If the husband procure his wife to draw a note, then indorses it and puts it into circulation it would be difficult to find reason or authority to discharge him." Leitner v. Miller, 49 Ga. 486, per Trippe, J. "The note was void as against the makers, because they were married women and incapable of contracting obligations in that form. But where

the defendant indorsed the note he impliedly contracted that the makers were competent to contract, and had legally contracted the obligations of joint makers of the note. He also assumed the legal obligation in most respects of the drawers of a bill. The fact, known to the plaintiff at the time he took the note, that the makers were married women, did not deprive him of the character of a bona fide purchaser." Erwin v. Downs, 15 N. Y. 575, per Shankland, J.

28 Binney v. Globe Nat. Bank, 150 Mass. 574, 23 N. E. 380, 6 L. R. A. 379.

29 Prescott Bank v. Caverly, 73 Mass. (7 Gray) 217, 66 Am. Dec. 473. 30 Morgan v. Morgan, 20 Ky. L. 1308, 49 S. W. 184.

31 McGavock v. Whitfield, 45 Miss. 452; Whitworth v. Carter, 43 Miss. 61; Hicks v. Randolph, 62 Tenn. (3 Baxt.) 352, 27 Am. Rep. 760.

32 Nabb v. Koontz, 17 Md. 283, 291.

into any contract of suretyship, whether as indorser, guarantor or in any other manner; and such contract as to her shall be void;"33 that one of her creditors can not avoid such a contract. It was said in this case: "It has been uniformly held by this court since said section took effect, that contracts of suretyship made by married women are voidable, not void; that coverture is a personal defense; and therefore such contracts can only be avoided by such married women and her privies in blood or representation."34 And the maker of a note, payable to his wife or her order, can not set up the defense in an action by an indorsee that she had no authority to indorse or transfer the note as his promise to pay to the payee's order is a direct affirmance that the payee has the right to make the order and every rule of estoppel applies to him.35 So the drawer of a bill in favor of a feme covert, he having in express terms authorized her to receive the amount of the bill, can not, in an action by the husband for nonpayment, deny the wife's right to demand payment thereof.36

§ 137. Failure to plead coverture-Rendition of judgment. -Though a married woman fails to plead coverture as a defense, it has been decided that it is as competent for her to prevent the enforcement of the judgment as it would have been to set up the same defense in the original action.37 So it has been held that a judgment by default against a married woman on a promissory note is a nullity and can be no more enforced against her at law than the note sued on. The principle that a party can not impeach a judgment on any ground which might have been pleaded or relied on as a defense to the suit does not apply to a case like this, where the defendant is a feme covert, and hence not sui juris.38

Re

33 Burns' Rev. Stat. (1894), § 6964 (Burns' Ann. Stat. 1914, § 7855). pealed by Burns' Supp. 1921, § 7855. 34 Lackey v. Boruff, 152 Ind. 371, 53 N. E. 412.

35 Wisdom v. Shanklin, 74 Mo. App. 428, 1 Mo. App. 238.

36 Cathell v. Goodwin, 1 Har. & G. (Md.) 468.

37 Green v. Page, 80 Ky. 368, 4 Ky. L. 192; Stevens v. Deering, 10 Ky. L.

393, 9 S. W. 292; Hoffman v. Shupp, 80 Md. 611, 31 Atl. 505; Unangst v. Fitler, 84 Pa. St. 135; Smith v. Wilson (Tex. Civ. App. 1895), 32 S. W. 434. But see: Van Metre v. Wolf, 27 Iowa 341; Guthrie v. Howard, 32 Iowa 54; Shanklin v. Moody, 23 Ky. L. 2063, 66 S. W. 502.

38 Griffith v. Clarke, 18 Md. 457.

SUBDIVISION II. INFANCY.

Section

140. Infancy as a defense-Generally. 141. Effect of ratification.

142.

143.

144.

145.

Note given for support of bastard child.
Note given in satisfaction of tort.
Where infant accepts bill of exchange.
Who may urge defense of infancy.

So the

§ 140. Infancy as a defense-Generally.-The Uniform Negotiable Instruments Law provides that "The indorsement or assignment of the instrument by a corporation or by an infant passes the property therein, notwithstanding that from want of capacity the corporation or infant may incur no liability thereon."39 infancy of a maker of a note is a good defense to an action against him on the note. 40 And a bona fide holder is not protected against this plea.11 And a maker is not deprived of his right to make this defense by the fact that the contract was procured by his fraudulent representation that he was of full age.42 So infancy is a good defense to an action on a note given by a female for an account due by her deceased husband and her right to avail herself of this defense is not affected by the fact that she married by the consent of her parents or that on becoming a widow she has administered on her husband's estate. 43 Where, however, an action of debt was brought on a promissory note and defendant pleaded nil debet and offered evidence of infancy in support of the plea it was decided that on this plea to the action evidence of infancy was not admissible. The rule that a maker may avail himself of the plea of infancy is not founded on the principle that the note or bill is

44

39 Negot. Inst. Law, art. "Form and Interpretation", § 22.

40 Buzzell v. Bennett, 2 Cal. 101; Des Moines Ins. Co. v. McIntire, 99 Iowa 50, 68 N. W. 565; Willis v. Twambly, 13 Mass. 204; Heffington v. Jackson, 43 Tex. Civ. App. 560, 96 S. W. 108.

41 Howard v. Simpkins, 70 Ga. 322;

Montgomery v. Brown, 1 Del. Co. (Pa.) 307.

42 Fitts v. Hall, 9 N. H. 441, 450. See Conroe v. Birdsall, 1 Johns. Cas. (N. Y.) 127, 1 Am. Dec. 105.

43 Poole v. Hines, 52 Ga. 500.

44 Young v. Bell, 1 Cranch C. C. (U. S.) 342, Fed. Cas. No. 18152.

absolutely void from its inception but rather that it is voidable at the election of the maker. 45 "It is now well settled as a part of the law merchant that an infant may make or indorse a promissory note or bill of exchange, and that, as to him, the note in the one case and the indorsement in the other will not be void, but voidable at his election."46 This is also declared to be the rule, though the note was given for necessaries.47 So it has been decided that a note given by an infant for necessaries is not binding, though he is responsible on a quantum valebant for their value, as the note determines the amount positively and it is necessary for the infant's protection that this be open to inquiry.48 And it is said in another case that: "Express contracts, as by bond or note are not as such binding, and can not be enforced without ratification even if given for necessaries. For whether the articles furnished were, in the particular case, necessaries, is a question of law to be determined by the court, and if deemed necessaries, then their quantity, quality, and reasonable price, is for the consideration of the jury. But if on the contrary, the express contracts of infants, even when necessaries, so called, were the consideration, could be enforced, these important questions might be improvidently settled by the infant himself, beyond the supervision of the courts."49 So an infant is held not liable on his note or other contract for money, even though he spends the money for necessaries. 50 And where a nonnegotiable note payable to a minor was transferred by him to another in exchange for a watch, but on the following day the minor tendered back the watch and demanded the note, it was decided that the note ceased to be the transferee's from the date of demand of its return and that he could not recover in an action thereon against the maker.51 But in a case in South Carolina, where a defendant pleaded infancy to an action on a note executed by him. it was decided that a replication thereto that the note was given for necessaries ought to be

45 Young v. Bell, 1 Cranch C. C. (U. S.) 342, Fed. Cas. No. 18152.

46 Hastings v. Dollarhide, 24 Cal. 195, 208, citing Hardy v. Waters, 38 Maine 450; Nightingale v. Withington, 15 Mass. 272, 8 Am. Dec. 101; Story on Promissory Notes, § 78.

47 Ayers v. Burns, 87 Ind. 245, 44 Am. Rep. 759; Price v. Sanders, 60

Ind. 310; Fenton v. White, 4 N. J. L. 100; Swasey v. Vanderheyden, 10 Johns. (N. Y.) 33.

48 Milton v. Steward, 5 Ill. App. 533. 49 Henderson v. Fox, 5 Ind. 489, quoted in Ayers v. Burns, 87 Ind. 245, 44 Am. Rep. 759.

50 Price v. Sanders, 60 Ind. 310.
51 Willis v. Twambly, 13 Mass. 204.

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