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duty of the executive of the State from which any it exists under the Constitution and the law, is comsenator has been chosen, to certify his election under plex in its character, and needs to be looked at on all the seal of the State to the President of the Senate of sides in order fully to understand it. This complexity the United States," and that the certificate “shall be grows out of our duplicate system of government countersigned by the secretary of State of the State." operating within the same territory and upon the same Rev. Stat., $$ 18, 19. So also Congress has provided people. that the executive of each State shall cause lists of There is in this case a Federal element, consisting in presidential electors of such State to be made and cer- the fact that the party arrested and held, as a fugitive tified, and delivered to them on or before the day of criminal, is so arrested and held under color of the autheir meeting to cast their votes. Rev. Stat., $ 136. thority of the United States. This fact brings the Here are laws of the United States to be executed by case within the habeas corpus jurisdiction of a Federal State governors; and yet nobody has ever supposed court, as defined in section 753 of the Revised Statutes that these governors become Federal officers or act as of the United States, expressly extending such jurissuch in executing these laws. And there is no more diction to any party who "is in custody under or by reason for adopting this supposition when they exe- color of the authority of the United States." The Fedcute the extradition law of the United States.

eral courts have proceeded upon this basis. Assuming then, without pursuing the argument to This however is not the whole of the case. There is greater length, that the process of inter-State extradi- another side to it. It is just as true that the party tion though regulated by a law of the United States, arrested and held as a fugitive from justice, is so and conducted under the authority of that law, is arrested and held by State agency and State officers; nevertheless a process executed by State officers, we and this fact furnishes a legal ground for the habeas see at once that the cases cited by Judge Sawyer are corpus jurisdiction of State courts in such a case. The not in this respect parallel to a case of extradition. It ground is not the one that justifies the Federal habeas may be true, and according to the ruling of the Su- corpus; yet it is equally valid. State courts have aspreme Court of the United States it is true, that a sumed and exercised the jurisdiction for some reason; party in custody under color of the authority of the and there is no other valid basis for it except the fact United States by an officer thereof cannot be reached that the restraint of liberty is by State agency. If the by a writ of habeas corpus issued by a State judge or a agency were purely Federal, then we concede that the State court. But it does not by any means follow that jurisdiction would be exclusive in the Federal a party in custody by a State sheriff, as a fugitive courts. crimival, under a warrant issued by a State governor, The attorney-general of Illinois in 1842, in Ex parte cannot be reached by such a writ of habeus corpus. Smith, 3 McLean, 121, reasoning wholly from that side The Supreme Court of the United States did not, in of the question which relates to State agency in the the cases cited, affirm any such proposition; and arrest and detention, claimed that the Circuit Court bence the cases do not prove the conclusion drawn of the United States had no jurisdiction in the case, froin them by Judge Sawyer. They are not parallel because the arrest of Smith was “ under and by color to a case of extradition in one very important par- of authority of the State of Illinois, by the officers of ticular.

Illinois," and not "by any officers of the Uuited There is another important particular in which the States." The court however asserted and exercised cases of Booth aud Tarble are not parallel to an extradi- jurisdiction on the ground of the law of the United tion case. The government of the United States was, States relating to inter-State extradition, and giving in the former, actually enforcing its own custody authority to State governors to order such arrests, against these parties, prosecuting and punishing the while it did not deny that a State court might have exone for crime against the laws of the United States, ercised jurisdiction in the same case, if applied to for and holding the other as an enlisted soldier of the this purpose. United States. It was very properly said by the Judge Sawyer, on the other hand, reasoning excluSapreme Court of the United States that if a State sively from the fact that the process of extradition is court could, by habeas corpus, interfere with this cus- authorized by a law of the United States, and assumtody and discharge the parties therefrom, then ing that the execution of this law is in legal effect that whether the general government could exercise its of a Federal agency, and further assuming that the constitutional powers or not by its own courts and cases of Booth and Tarble are parallel to an extradiofficers would depend upon the judgment and pleas- tion case, conipletely reverses the theory set up by the ure of State courts. They would have the power to attorney-general of Illinois iu the case of Smith, and arrest the operations of the general goverument, by comes to exactly the opposite conclusion. His doodischarging those whom it held in custody.

trine is that State courts have no habeas corpus jurisIn an extradition case, however, the general govern- diction in extradition cases, and that the whole jurisment is not seeking to enforce a law against any body. diction to inquire in such cases into the cause of the reIt makes no charge, frames no indictment, and holds straint of liberty is exclusively vested in the Federal nobody in custody. It is not in the act of exercising courts. its authority against any body. It holds no relation to The opinion of the attorney-general of Illinois in the the case, except that of having furnished through Con- case alluded to is contradicted by the well-settled gress the law by which the case is to be governed; and practice of the Federal courts; and the opinion of it is in this sense, and this only, that the case comes Judge Sawyer is equally contradicted by the uniform under the authority or color of the authority of the practice of the State courts. Neither represeuts the United States. A State, and not the general govern- judicial opinion of this country. The doctrine of conment, is pursuing the remedy furnished by law. A current jurisdiction having its basis in the complex State, and not the general government, is asked to ex- character of an extradition case, made up in part of ercise its power. If the party be arrested, a State, Federal elements and in part of State elements, the and not the general government, holds him in custody. only doctrine that is in harmony with this opinion, or This differs very widely from the cases of Booth and with the practice founded upon it, or with the facts Tarble, in which the general government was exercis- that form the legal materials of the case. ing its power and had the parties in custody, and in The fact that the Federal courts have a habeus corpus which a State court undertook to interfere with that jurisdiction in extradition cases is not of itself any

reason why State courts should not have a similar jur. The fact is that a case of inter-State extradition, as isdiction in the same class of cases, since under the

custody.

Constitution, and the law there are several classes of being contrary to reason, the maxim that a man sball cases in which the jurisdiction of these courts is con- not stultify himself hath been handed down as settled current. We think that extradition cases form one of law." 2 Bl. Com. 291, 292; Bac. Abr., Idiots and Lanaof these classes; and this view is the one sustained by tics, F. The reason assigned for this maxim was that the practice of both classes of courts.

a man cannot know in his sanity what he did when he SAMUEL T. SPEAR. was insane, Stroud v. Marshall, Cro. Eliz. 398; Cross

V. Andrews, id. 622; or as stated by Littleton, “no

man of full age shall be received in any plea by the LIABILITY OF INFANT FOR GOODS PURCHASED That such a doctrine ever could have been held to be

law to disable his own person.” Co. Lilt. B. 3, 247 b. ON CREDIT.

law seems incredible, for to use the language of Wil.

mot, J., it does seem to be very unaccountable that a NEW HAMPSHIRE SUPREME COURT.

man should be at liberty to avoid his own acts caused

by the duress of man and not those caused HALL V. BUTTERFIELD.*

by the duress of Heaven. Wilm. Op. 155; 5 Bac. Abr. An infant who purchases goods on credit, and does not return

(Bouv. ed.) 26. “How so absurd and mischierous a them, is liable for so much of the price as is equal to the

maxim could have found its way into any system of benefit derived by him from the purchase.

jurisprudence, professing to act upon civilized beings, The question of the amount of benefit received by the infant is a matter of wonder and humiliation. There have

is one of mixed law and fact, to be found by the tribunal been many struggles against it by einiuent lawyers in trying the facts.

all ages of the common law; but it is perhaps some, to ered. The defendant pleaded infancy, and the establishment in the fundamentals of the common law question was reserved whether that was a bar to the -a circumstance which may well abate the boast, so plaintiff's recovery. The defendant was engaged in often and so rashly made, that the common law is the trade, and the goods were purchased by him for the perfection of human reason.” Story Eq.. $ 225. But purposes of trade, agd were not necessaries within the

this doctrine has been exploded as manifestly against ordinary meaning of that term.

natural justice, 2 Kent. Com. 451, and it has been STANLEY, J. The defendant interposes the plea of finally considered, in this and other jurisdictions, that infancy as a bar to the plaintiff's right to recover, and

lunatics and persons non compos mentis may sbow 80 far as this right depends on an express contract, it their ivcapacity as a defense to their contracts. Inis a complete answer. The express contract on which

deed this doctrine seems now well established in this the plaintiffs rely was voidable at the defendant's country. Lang v. Whidden, 2 N. H. 435; Burke v. election, but it does not necessarily follow, because Allen, 29 id, 106; Mitchell v. Kingman, 5 Pick, 431; the defendant exercises his privilege to avoid the con

Rice v. Peet, 15 Johns. 503; 5 Bac. Abr. (Bouv. ed.) tract, that he is under no liability to the plaintiffs. 26; 2 Kent Com. 451, 452, and notes and authorities The right of infants, lunatics, persons non compos

passim. mentis, and drunkards, when in such a state as to be

Again, it was formerly held that the contracts of entirely deprived of reason, to avoid their contracts,

lunatics and persons non compos mentis were absois placed on the same ground. They are considered lutely void, Thompson v. Leach, 3 Mod. 301; Gore v. to be devoid of that freedom of will, combined with

Gibson, 13 Mee. & W. 623; Chit. Cont. 24, 139; but this maturity of reason and judgment, essential to enable

has been seriously questioned, and it is now held that them to give the assent necessary to make a valid con

they are voidable only, Wait y. Maxwell, 5 Pick. 217; tract. To protect them from fraud and imposition, to

Alis v. Billings, 6 Met. 415; S. C., 2 Cush. 19; Ingrawhich from their want of understanding and imma- ham v. Baldwin, 9 N. Y. 45; Met. Cont. 80; Pars. N. turity of judgment they are exposed, they are permit- & B. 151; 2 Hill, R. P. 408, s 16; and that where a conted to allege their want of capacity to bind themselves

tract is entered into in good faith with a lunatic or a by contract. But this privilege is to be used as a shield, person non compos mentis, and is for the benefit of not as a sword; not to do injustice, but to prevent it.

such person, courts of law, as well as equity will upZouch v. Parsons, 3 Burr. 1794; Seaver v. Phelps, 11

hold it. YcCrillas v. Bartlett, 8 N. H. 569; Young v. Pick. 304; Allis v. Billings, 6 Met. 415; Hallett v.

Stevens, 48 id. 133; Mut. Life Ins. Co. v. Hunt, 79 N. Oates, 1 Cusb. 296; Taft v. Pike, 14 Vt. 405; Lincoln v.

Y. 541; Hallett v. Oakes, 1 Cush. 296; Molton F. CanBuckmaster, 32 id. 652; Matter of Barker, 2 Johns Ch.

roux, 2 Welsby H. & G. 487; S. C., 4 id. 17; Elliot v. 233; Sanford v. Sanford, 62 N. Y. 553, 557 ; Squier v.

Ince, 7 De G., M. & G. 475; Baxter v. Earl of PorisHydliff, 9 Mich. 274; Spicer v. Earl, 41 id. 191; Allen mouth, 5 Barn. & C. 170; Neill v. Morley, 9 Ves., Jr., v. Berryhill, 27 Iowa, 540; Benj. Sales, $ 21; 1 Pars.

478; Brown v. Jodrell, 3 Car. & P. 30; Gore v. Gibson, Cout. 293; Chit. Cont. 135, 136, 141; 1 Fonbl. B. 1, ch.

supra; 1 Pars. Cont. 386; Benj. Sales, $ 29; Story Eq., 2, $ 4; Bing. Inf. 63; Ewell L. C. 588.

$ 228. Greenleaf states the doctrine thus: Where But while the disabilities of these different classes goods have been supplied to a party which were necesof persons and the reasons on which they are placed saries, or were suitable to his or her station or employare the same, and they equally require protection, the

ment in life, and which were furnished under circumapplication of the principles of law governing their

stances evincing that no advantage of his or her menrights and liabilities and their status has been widely have been enjoyed by such party, then he or she is

tal infirmity was attempted to be taken, and which different, and has undergone marked changes from time to time. Under the ancient common law, luna

liable at law, as well as in equity, for the value of the tics were allowed to show their lunacy in defense of goods. 2 Gr. Ev., $ 369; Kendall v. May, 10 Allen, 62. their alleged contracts, 2 Bl. Com. 291, but later, in the

From this brief review, it is seen that there has been times of Edward III, “a scruple began to arise

a cbange in the law relating to the rights and liabili. whether a man should be permitted to blemish him

ties of lunatics and persons non compos mentis, from self by pleading his own insanity. Under Henry VI, absolute liability upon all contracts to no liability upthis way of reasoning * was seriously adopted

on any contract, and from that to a liability limited by the judges * ** and from these loose authori- by the benefit received. This latter doctrine places ties, which Fitzherbert does not scruple to reject as

their rights and liabilities upon broader, more rational

and just grounds than they have ever been before, for * To appear in 59 New Hampshire Reports.

it regards the rights of both parties, treats both parties

to the contract as equally under the protection of the supra; Heath v. West, 28 N. H. 101, 110; Locke v. law, the lunatic and the person non compos mentis, by Smith, 41 id. 346, 353; Young v. Stevens, 48 id. 133, 137 ; allowing them to rescind their contracts, accounting Heath v. Stevens, id. 251; Kimball v. Bruce, 58 id. 327; for the benefit received from it; the other party, by Price v. Furman, 27 Vt. 268; Badger v. Phinney, 15 allowing him to recover to the extent of the benefit Mass. 359; Riley v. Mallory, 33 Conn. 201, 207; Ewell received by the lunatic.

L. C. 123, 125; 2 Kent. Com. 236, 240; Benj. Sales, $ 27, The privilege accorded to infants to avoid their con- note. This is es] cially the case in contracts for sertracts rests on the same ground as that accorded to luna- vices, where the infaut seeks to avoid his contract and tics and persons non compos mentis, protection against recover what his services are reasonably worth; and fraud to which by reason of their immaturity of judg- this allows the adult to set off against the value of the ment they are liable. So far as relates to their con- plaintiff's services the reasonable value of what the tracts, these different classes of persons are said to be infant has received on account of such services; or in parallel, both in law and reason. Seaver v. Phelps, 11 other words, the infant is entitled to recover for the Pick. 304; Breckenridge's Heirs v. Ormsby, 1 J. J. benefit which the adult has derived from the services Marsh. 26; Thompson v. Leach, 3 Mod. 301; 1 Pars. performed by him. Lufkin v. Mayall, 25 N. H. 82; Cont. 293; Story Eq., $S 223, 224, 242, and authorities Locke v. Smith, supra; McCrillis v. How, 3 N. H. 348; passim. But the principles applicable to their con- Vent v. Osgood, 19 Pick. 572; Stone v. Dennison, 13 id. tracts have not been the same, and even with regard 1; Breed v. Judd, 1 Gray, 455; Gaffney v. Hayden, to the contracts of infants the law has been materially 110 Mass. 137; Hoxie v. Lincoln, 25 Vt. 206; Harney v. changed. Until the decision in Zouch v. Parsons, 3 Owen, 4 Blackf. 337; Squier v. Hydliff, 9 Mich. 274; Burr. 1794, none of the contracts of minors were en- Spicer v. Earl, 41 id. 191 ; Whitmarsh v. Hall, 3 Den. forceable. They were all either void or voidable. Bac. 375; Makarell v. Bachelor, Cro. Eliz. 581; Ive v. Chester, Abr., Infant I, 3; Com. Dig., Enfant B, 5; Lloyde v. Cro. Jac. 560; Ewell L. C. 109. Gregory, Cro. Car. 502. But in Zouch v. Parsons, Again, as has been showu, infants were formerly supra, it was held that infants were liable on their held liable on their contracts for necessaries; but it is contracts for necessaries on the ground of necessity, now held that they are liable, not by virtue of any and because they were of benefit to the infant. Lord contract, but on the ground of an implied legal liaMausfield said, page 1801: “Great inconveniences must bility based on the necessity of the situation. Bing. arise to others if infants were bound by no act. The Iuf., Bennett's notes, 87. law therefore at the same time that it protects tbeir It is apparent that the tendency of the later decisions imbecility and indiscretion from injury through their is to enlarge the liabilities and obligations of infants ; own imprudence, enables them to do binding acts for and while the liability has not in their case been extheir benefit * * * A third rule, deducible from tended so far as it has in regard to lunatics and perthe nature of the privilege that is given as a shield and sons non compos mentis, the principle on which it rests not as a sword, is, that it never shall be turned into an is the same. The grants of infants and persons non offensive weapon of fraud or injustice * * * The compos are parallel, both in law and reason. Thompend of the privilege is to protect infants. To that ob- son v. Leach, 3 Mod. 301; Seaver v. Phelps, 11 Piok. ject therefore all the rules and their exceptions must 304; Breckenridge's Heirs v. Ormsby, supra. In view be directed.” In Drury v. Drury, cited in Maddon v. of these facts, no reason appears why the wise and just White, 2 T. R. 159, Lord Mansfield laid it down as a principle enunciated by Lord Mansfield should not be general principle, that if an agreement be for the bene- given its full force, and the rigbts and obligations of fit of an infant at the time, it shall bind him; and lunatics, persons non compos mentis, drunkards when Buller, J., said Lord Hardwicke afterward adopted in such a state as to be entirely bereft of reason, and this rule. But this broad principle announced by Lord infants, be placed on the same ground. The obligation Mansfield, and which seems so just and wise, and to account only for the benefit actually received sewhich secures to infants all the protection necessary cures ample protection from fraud and imposition, and to save them from the cousequences of immaturity of at the same time prevents the privilege from being judgment and understanding, has been limited so that used to perpetrate fraud. It prevents their disability under it they have only been held liable, upon an im- from being “not their protection merely, but an explied contract for necessaries, such as necessary meat, traordinary legal ability to rob others; not a shield, drink, apparel, medicine and instruction, and if mar- but a sword; not a mere legal incapacity to be plunried, provision for wife and children. Bing. Inf. 87. dered by their fellow men, but a vast capacity to Recently the term has been extended to include coun- plunder them with impunity." sel fees, in cases involving their liberty. Barker v. The right to recover for necessaries is given, because Hibbard, 54 N. H. 539; McCrillas v. Bartlett, 8 id. 569. the infant has derived a benefit therefrom. It is upon Formerly it was held by some authorities that they no other ground. If the benefit is the foundation of could not be allowed to rescind their contracts in re- the right, why should it be limited to necessaries ? It gard to either personal or real property until after cannot be said that the infant, if engaged in trade or coming of age; but this has been modified so that as to business, may not derive a benefit therefrom. If benetheir contracts in regard to personal property, they fit obtained by the infant is the test in one case, why may rescind as well before as after. Carr v. Clough, not make it the test in all cases? This has been made 26 N. H. 289, 291; Roof v. Stafford, 7 Cow. 179; Staf

the test in the case of lunatics and persons non compos ford v. Roof, 9 id. 626; Zouch v. Parsons, supra. So mentis, and it should be applied in the case of infants. they were formerly allowed to rescind, and recover The true rule is that the contract of an infant or what they had paid on their contracts without restor- lunatio, whether executed or executory, cannot be ing what they had received. But this has been rescinded or avoided without restoring to the other changed, and it is now held that they cannot rescind party the consideration received, or allowing him to without restoring or offering to restore the considera- recover compensation for all the benefit conferred tion, if remaining in specie, and in the possession or upon the party seeking to avoid the contract. The control of the infant and capable of return; and in question whether the infant bas received a benefit, some jurisdictions it is now held that where the con- like the question of what are necessaries, and what sideration cannot be restored, the infant before he can sum the infaut ought to pay for them, or the be allowed to rescind, must place the adult in as good question of negligence or ordinary care,

and condition as though he had returned the consideration other similar questions, is one of mixed law or he must account for the value of it. Carr v. Clough, and fact. No uniform rule can be established. A con

[graphic]

A

tract which under some circumstances to one person other in this case is that the amount of the judgment might be beneficial, uuder others avd to another might in favor of defendant Lane for costs has been paid by be injurious. In no two cases are we likely to find the the plaintiff to Lane, whereas it did not belong to same facts; and it must always be for the trier to ap- Lane, but to Lane's attorney as taxed costs in the acply the law to the facts, and determine whether the tion and by special agreement with Lane, of which the infant has been benefitted, and to what extent. Bing. plaintiff had notice. The lien of the attorney on a Inf., Bennett's notes, 88.

judgment recovered for the amount of his costs, etc., Our conclusion is that the plea of infancy is not a is well settled and has sometimes been regarded as an bar to the plaintiff's recovery, but that they may re- equitable assigument of the judgment to him. Mar. cover to the extent of the benefit received by the de- shall v. Meech, 51 N. Y. 143; Demmick v. Cooley, 5 fendant, not exceeding the price he agreed to pay for Civ. Pro. R. 146, citing Coughlin v. N. Y. Central R. the goods.

R., 71 N. Y. 443; Wright v. Wright, 70 id. 96.
Case discharged. To protect the attorney's lien in the case at bar there

was no necessity that notice should have been served ATTORNEY'S LIEN ON JUDGMENT - RIGHT OF

on the plaintiff. Molouchney v. Kavanagh, 3 Civ. Pro.

R. 255.
SET-OFF

Notice iu this case however was given, and no settle

ment of the litigation between the parties themselves NEW YORK SUPERIOR COURT, FEBRUARY, 1884. by set-off or otherwise, which defeated the lien of the

attorney, was proper. In re Bailey, 4 Civ. Pro. R. NAYLOR V. LANE.

143; Sanders v. Gillett, 8 Dailey, 184, aud Garner v. An agreement etween the defendant in an action and his at- Gladwin, 12 Weekly Dig. 10 (the cases cited in the

torney, that the costs to accrue in the action shall belong argument below), seem to me to differ in their essento the attorney as compensation for his services, is valid tial elements from the case at bar and are not controland operates as an assignment of such costs to the at- ling. The order appealed from should be reversed torney.

and the motion denied with $10 costs. No notice of the assignment is necessary, and the judgment

Sedgwick, C. J., concurred, citing Perry v. Chester, subsequently entered in favor of the defendant is not a proper subject of set-off against a judgment previously

53 N. Y. 250. recovered by the plaintiff against the defendant. PPEAL from au order granting a motion to off- PRESUMPTION IN FAVOR OF CERTIFICATE OF set judgments.

ACKNOWLEDGMENT. Oswald P. Backus, for appellant.

SUPREME COURT OF THE UNITED STATES, Charles E. Crowell, for respondent.

DECEMBER 17, 1883. O'GORMAN, J. This action was tried and a verdict rendered for the defendant, and judgment duly

YOUNG V. DUVALL. entered therein for the sum of $180.63, the same being for costs and disbursements on June 19, 1883. On the

In a suit to set aside a deed of trust executed to secure the same day, D. A. Hulett, the attorney for the defendant

payment of a note signed by husband and wife, and the

acknowledgment of which was certified as required by Lane, served on the attorney of the plaintiff, notice of

law, it was in proof that the wife signed the note and the entry of said judgment, together with a notice of his

deed, having an opportunity to read both before signing own lien on said judgment to the full extent thereof them; she was before an officer competent to take ber for his taxed costs, etc. On the same day and before acknowledgment, and he came into her presence, at the entry of said judgment in favor of the defendant Lane, request of the husband, to take it; and she knew, or could a judgment was entered in this court in another action

have ascertained, while in the presence of the officer, as in favor of the plaintiff herein for $331.64 against said

well to what property the deed referred as the object of

its execution. Held, that the certificate must stand Lane, and James A. Bills on a joint and several in

against a mere conflict of evidence as to whether she debtedness to said plaintiff; nothing has been paid on

willingly signed, sealed and delivered the deed, or had its either of these judgments.

contents explained to her by the officer, or was examined A motion was made at Special Term on the part of privily and apart from her husband; and that even if it be said Naylor, the plaintiff in both of said actions, that only prima facie evidence of the facts therein stated, it the judgment obtained by the said defendant Lane, cannot be impeached, in respect to those facts, except against said Naylor, in the first mentioued action upon proof which clearly and fully shows it to be false or should be set off against the judgment obtained by the

fraudulent. said Naylor in the action secondly above mentioned, by reducing the amount of the said judgment against Lane, and that the judgment in favor of said Lane, HARLAN, J. It is provided by the Revised Statutes and against the plaintiff, should be conceded and of the United States, relating to the District of Columsatisfied of record. In opposition to the motion an bia, that “when any married woman shall be a party affidavit of said Hulett, attorney of said Lane, was executing a deed for the conveyance of real estate or read, setting forth that he had been the attorney for interest therein, and shall only be relinquishing her said Lane in said action in which judgment had been right of dower, or when she shall be a party with her recovered in favor of said Lane and against the plaint- husband to any deed, it shall be the duty of the iff Naylor. That he has not been paid for his profes- officer authorized to take acknowledgments, sional services in said action by said Lane, and be- before whom she may appear, to examine her lieves that he will not be paid by him. That from the privily and apart from her husband and to explain to time of his employment by said Lane, there had been her the deed fully;" further, “if upon such privy exan agreement with Lane that all costs recovered in the amination and explanation, she shall acknowledge the action should belong to him, Hulett, and not to the deed to be her act and deed, and shall declare that she defendant. The learned judge at the Special Term had willingly signed, sealed and delivered the same, granted the said motion to set off, and the defendant and that she wished not to retract it, the officer shall Lane has appealed.

certify such examination, acknowledgment and doIt seems to me that the appeal must be sustained. claration, by a certificate annexed to the deed and The effect of setting off one judgment against the under his hand and seal,” to the effect indicated in the

APPEAL from the Supreme Court of the District of

form prescribed by the statute. Rev. Stat. Col., & the deed, or had its contents fully or at all explained 450.

to her by the officer, or was examined privily and It is also provided that “when a privy examination, apart from her husband. acknowledgment, and declaration of a married woman It is not necessary to enter upon a review of the adis taken and certified and delivered to the recorder of judged cases bearing upon the general question of the deeds for record, in accordance with the provisions of effect to be given to the certificate of an officer taking this (the 14th] chapter, the deed shall be as effectual in an acknowledgment of a married woman to a conveylaw as if she had been an unmarried woman; but no ance of real estate; for if it be assumed, for the purcovenant contained in this deed shall in any manner poses of this case, that it is only prima facie evidence operate on her or her heirs, further than to convey ef- of the facts stated in it, we are of opinion that the inlectually her right of dower or other interest in the real tegrity of the certificate before us has not been successestate which she may have at the date of the deed." | fully impeached. The certificate of the officer states Id., $452.

evcry fact essential, under the statute, to make the These statutory provisions being in force, there was deed, upon its being delivered for record, as effectual placed upon record in the proper office in the District in law as if Mrs. Young was an unmarried woman. of Columbia, on the 17th day of November, 1875, a deed The duties of that officer were plainly defined by statof trust purporting to have been executed by Mark ute. It was incumbent upon him to explain the deed Young and Virginia Young, his wife, and to have fully to the wife, and to ascertain from her whether been on the same day, acknowledged before B. W. she willingly signed, sealed and delivered the same, Ferguson, a justice of the peace in and for the District and wished not to retract it. The responsibility was of Columbia. The certificate of that officer, under his upon him to guard her against coercion or undue influhand and seal, shows that the grantors were personally ence upon the part of the husband, in respect of the known to him to be the persons who executed the execution and delivery of the deed. To that end he deed; that they personally appeared before him, in was required to examine her privily and apart from this district, “and acknowledged the same to be their the husband. These facts were to be manifested by a act and deed, and the said Virginia Young, wife of certificate under his hand and seal. Of necessity arissaid Mark Young, being by me [him) examined privily ing out of considerations of public policy, his certifiand apart from her husband, and having the deed cate must, under the circumstances disclosed in this aforesaid fully explained to her, acknowledged the case, be regarded as an ascertainment, in the mode same to be her act and deed, and declared that she had prescribed by law, of the facts essential to his auwillingly signed, sealed and delivered the same, and thority to make it; and if uuder such circumstances, that she wished not to retract it."

it can be contradicted, to the injury of those who in This deed of trust conveyed certain real estate, in

good faith have acted upon it-upon which question the city of Washington, the property of Mrs. Young, we express no opinion-the proof to that end must be to the appellees, Duvall and Holtzman, in trust to se- of such a character as will clearly and fully show the cure the payment of a note executed by the grantors,

certificate to be false or fraudulent. Insurance Co. v. whereby they promised to pay to the order of John Nelson, 103 U. S. 544, 547. The mischiefs that would Little, two years after date, at the National Metropoli

ensue from a different rule could not well be overtan Bank, the sum of $8,000, with interest at the rate stated. The cases of hardship upon married women of ten per cent until paid. Neither Little, nor the that might occur under the operation of such a rule present holder of the note, had any knowledge of the are of less consequence than the general insecurity in circumstances attending the execution of the deed. the titles to real estate which would inevitably follow Default having occurred in the payment of the debt so

from oue less rigorous. secured, the trustees advertised the property for sale

It is sufficient for the disposition of this case to say, at pablic auction. Thereupon Mrs. Young instituted that even upon the assumption that the certificate is this suit for the purpose of preventing such sale and to only prima facie evidence of the facts stated in it, the obtain a decree declaring the deed of trust fraudulent proof is not of that clear, complete and satisfactory and void, and requiring it to be surrendered for can

character which must be required to impeach the cellation.

official statements of the officer who certified Mrs. The bill sets forth several grounds upon which re

Young's acknowledgment of the deed in question. lief to that extent is asked, but those only deserve

The decree must therefore be affirmed. serious consideration which are embraced by aver

It is so ordered. ments to the following effect: That the contents of the deed were never explained to her; that she signed NOTE CONTAINING PROMISE TO PAY ATit because she was required, ordered and commanded

TORNEY'S FEE NOT NEGOTIABLE to do so by her husband and a person who was with

INSTRUMENT. bim; that its contents were never known or explained to her by the officer; that so far from her having been

MARYLAND COURT OF APPEALS, NOVEMBER 16, 1883. examined, in reference to the deed, privily and apart from her husband, the latter remained in the presence

MARYLAND FERTILIZING AND MANUFACTURING Co. of herself and the officer on the occasion when it is

V. NEWMAN.* claimed she signed, acknowledged, and delivered it.

It was in proof that Mrs. Young signed the note and the A written promise to pay a specified sum of money two deed, having an opportunity to read the papers before

months after date, and if not paid when due, to pay all signing them; she was was before an officer competent

costs and charges for collecting the same, with interest, is

not, in legal contemplation, a negotiable promissory note, under the law to take her acknowledgment, and he

forasmuch as the costs and charges of collection, part of came into her presence for the purpose of receiving it;

the sum agreed to be paid, are uncertain and contingent. he so came at the request of the husband, who expected, by means of the executed deed of trust, to se- A

CTION upon promissory note. The opinion states cure a loan from John Little of the amount specified

the case. Plaintiff appealed from a judgment in the note; and she knew or could readily have as

sustaining a demurrer to the complaint. certained while in the presence of the officer, as well Charles H. Gibson, for appellant. to what property the deed referred as the object of its

William R. Murtin, for appellee. execution. There is however a conflict in the evidence as to whetber she willingly signed, sealed and delivered

*Appearing in 60 Maryland Reports.

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