to the contract as equally under the protection of the law, the lunatic and the person non compos mentis, by allowing them to rescind their contracts, accounting for the benefit received from it; the other party, by allowing him to recover to the extent of the benefit received by the lunatic.

*

The privilege accorded to infants to avoid their contracts rests on the same ground as that accorded to lunatics and persons non compos mentis, protection against fraud to which by reason of their immaturity of judgment they are liable. So far as relates to their contracts, these different classes of persons are said to be parallel, both in law and reason. Seaver v. Phelps, 11 Pick. 304; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. 236; Thompson v. Leach, 3 Mod. 301; 1 Pars. Cont. 293; Story Eq., §§ 223, 224, 242, and authorities passim. But the principles applicable to their contracts have not been the same, and even with regard to the contracts of infants the law has been materially changed. Until the decision in Zouch v. Parsons, 3 Burr. 1794, none of the contracts of minors were enforceable. They were all either void or voidable. Bac. Abr., Infant I, 3; Com. Dig., Enfant B, 5; Lloyde v. Gregory, Cro. Car. 502. But in Zouch v. Parsons, supra, it was held that infants were liable on their contracts for necessaries on the ground of necessity, and because they were of benefit to the infant. Lord Mausfield said, page 1801: "Great inconveniences must arise to others if infants were bound by no act. The law therefore at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts for their benefit * * *. A third rule, deducible from the nature of the privilege that is given as a shield and not as a sword, is, that it never shall be turned into an offensive weapon of fraud or injustice * *. The end of the privilege is to protect infants. To that object therefore all the rules and their exceptions must be directed." In Drury v. Drury, cited in Maddon v. White, 2 T. R. 159, Lord Mansfield laid it down as a general principle, that if an agreement be for the benefit of an infant at the time, it shall bind him; and Buller, J., said Lord Hardwicke afterward adopted this rule. But this broad principle announced by Lord Mansfield, and which seems so just and wise, and which secures to infants all the protection necessary to save them from the consequences of immaturity of judgment and understanding, has been limited so that under it they have only been held liable, upon an implied contract for necessaries, such as necessary meat, drink, apparel, medicine and instruction, and if married, provision for wife and children. Bing. Inf. 87. Recently the term has been extended to include counsel fees, in cases involving their liberty. Barker v. Hibbard, 54 N. H. 539; McCrillas v. Bartlett, 8 id. 569. Formerly it was held by some authorities that they could not be allowed to rescind their contracts in regard to either personal or real property until after coming of age; but this has been modified so that as to their contracts in regard to personal property, they may rescind as well before as after. Carr v. Clough, 26 N. H. 289, 291; Roof v. Stafford, 7 Cow. 179; Stafford v. Roof, 9 id. 626; Zouch v. Parsons, supra. So they were formerly allowed to rescind, and recover what they had paid on their contracts without restoring what they had received. But this has been changed, and it is now held that they cannot rescind without restoring or offering to restore the consideration, if remaining in specie, and in the possession or control of the infant and capable of return; and in some jurisdictions it is now held that where the consideration cannot be restored, the infant before he can be allowed to rescind, must place the adult in as good condition as though he had returned the consideration or he must account for the value of it. Carr v. Clough,

supra; Heath v. West, 28 N. H. 101, 110; Locke v. Smith, 41 id. 346, 353; Young v. Stevens, 48 id. 133, 137; Heath v. Stevens, id. 251; Kimball v. Bruce, 58 id. 327; Price v. Furman, 27 V. 268; Badger v. Phinney, 15 Mass. 359; Riley v. Mallory, 33 Conn. 201, 207; Ewell L. C. 123, 125; 2 Kent. Com. 236, 240; Benj. Sales, § 27, note. This is especially the case in contracts for services, where the infaut seeks to avoid his contract and recover what his services are reasonably worth; and this allows the adult to set off against the value of the plaintiff's services the reasonable value of what the infant has received on account of such services; or in other words, the infant is entitled to recover for the benefit which the adult has derived from the services performed by him. Lufkin v. Mayall, 25 N. H. 82; Locke v. Smith, supra; McCrillis v. How, 3 N. H. 348; Vent v. Osgood, 19 Pick. 572; Stone v. Dennison, 13 id. 1; Breed v. Judd, 1 Gray, 455; Gaffney v. Hayden, 110 Mass. 137; Hoxie v. Lincoln, 25 Vt. 206; Harney v. Owen, 4 Blackf. 337; Squier v. Hydliff, 9 Mich. 274; Spicer v. Earl, 41 id. 191; Whitmarsh v. Hall, 3 Den. 375; Makarell v. Bachelor, Cro. Eliz. 581; Ive v. Chester, Cro. Jac. 560; Ewell L. C. 109.

Again, as has been shown, infants were formerly held liable on their contracts for necessaries; but it is now held that they are liable, not by virtue of any contract, but on the ground of an implied legal liability based on the necessity of the situation. Bing. Inf., Bennett's notes, 87.

It is apparent that the tendency of the later decisions is to enlarge the liabilities and obligations of infants; and while the liability has not in their case been extended so far as it has in regard to lunatics and persons non compos mentis, the principle on which it rests is the same. The grants of infants and persons non compos are parallel, both in law and reason. Thompson v. Leach, 3 Mod. 301; Seaver v. Phelps, 11 Pick. 304; Breckenridge's Heirs v. Ormsby, supra. In view of these facts, no reason appears why the wise and just principle enunciated by Lord Mansfield should not be given its full force, and the rights and obligations of lunatics, persons non compos mentis, drunkards when in such a state as to be entirely bereft of reason, and infants, be placed on the same ground. The obligation to account only for the benefit actually received secures ample protection from fraud and imposition, and at the same time prevents the privilege from being used to perpetrate fraud. It prevents their disability from being "not their protection merely, but an extraordinary legal ability to rob others; not a shield, but a sword; not a mere legal incapacity to be plundered by their fellow men, but a vast capacity to plunder them with impunity."

The right to recover for necessaries is given, because the infant has derived a benefit therefrom. It is upon no other ground. If the benefit is the foundation of the right, why should it be limited to necessaries? It cannot be said that the infant, if engaged in trade or business, may not derive a benefit therefrom. If benefit obtained by the infant is the test in one case, why not make it the test in all cases? This has been made the test in the case of lunatics and persons non compos mentis, and it should be applied in the case of infants. The true rule is that the contract of an infant or lunatic, whether executed or executory, cannot be rescinded or avoided without restoring to the other party the consideration received, or allowing him to recover compensation for all the benefit conferred upon the party seeking to avoid the contract. The question whether the infant has received a benefit, like the question of what are necessaries, and what sum the infaut ought to pay for them, or the question of negligence or ordinary care, and other similar questions, is one of mixed law and fact. No uniform rule can be established. A con

tract which under some circumstances to one person might be beneficial, under others and to another might be injurious. In no two cases are we likely to find the same facts; and it must always be for the trier to apply the law to the facts, and determine whether the infant has been benefitted, and to what extent. Bing. Inf., Bennett's notes, 88.

Our conclusion is that the plea of infancy is not a bar to the plaintiff's recovery, but that they may recover to the extent of the benefit received by the defendant, not exceeding the price he agreed to pay for the goods.

Case discharged.

Oswald P. Backus, for appellant.

Charles E. Crowell, for respondent.

O'GORMAN, J. This action was tried and a verdict rendered for the defendant, and judgment duly entered therein for the sum of $180.63, the same being for costs and disbursements on June 19, 1883. On the same day, D. A. Hulett, the attorney for the defendant Lane, served on the attorney of the plaintiff, notice of entry of said judgment, together with a notice of his own lien on said judgment to the full extent thereof for his taxed costs, etc. On the same day and before entry of said judgment in favor of the defendant Lane, a judgment was entered in this court in another action in favor of the plaintiff herein for $331.64 against said Lane, and James A. Bills on a joint and several indebtedness to said plaintiff; nothing has been paid on either of these judgments.

A motion was made at Special Term on the part of said Naylor, the plaintiff in both of said actions, that the judgment obtained by the said defendant Lane, against said Naylor, in the first mentioned action should be set off against the judgment obtained by the 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, and against the plaintiff, should be conceded and satisfied of record. In opposition to the motion an affidavit of said Hulett, attorney of said Lane, was read, setting forth that he had been the attorney for said Lane in said action in which judgment had been recovered in favor of said Lane and against the plaintiff Naylor. That he has not been paid for his professional services in said action by said Lane, and believes that he will not be paid by him. That from the time of his employment by said Lane, there had been an agreement with Lane that all costs recovered in the action should belong to him, Hulett, and not to the defendant. The learned judge at the Special Term granted the said motion to set off, and the defendant Lane has appealed.

It seems to me that the appeal must be sustained. The effect of setting off one judgment against the

other in this case is that the amount of the judgment in favor of defendant Lane for costs has been paid by the plaintiff to Lane, whereas it did not belong to Lane, but to Lane's attorney as taxed costs in the action and by special agreement with Lane, of which the plaintiff had notice. The lien of the attorney on a judgment recovered for the amount of his costs, etc., is well settled and has sometimes been regarded as an equitable assignment of the judgment to him. Marshall v. Meech, 51 N. Y. 143: Demmick v. Cooley, 5 Civ. Pro. R. 146, citing Coughlin v. N. Y. Central R. R., 71 N. Y. 443; Wright v. Wright, 70 id. 96.

To protect the attorney's lien in the case at bar there was no necessity that notice should have been served on the plaintiff. Molouchney v. Kavanagh, 3 Civ. Pro. R. 255.

Notice in this case however was given, and no settlement of the litigation between the parties themselves by set-off or otherwise, which defeated the lien of the attorney, was proper. In re Bailey, 4 Civ. Pro. R. 143; Sanders v. Gillett, 8 Dailey, 184, and Garner v. Gladwin, 12 Weekly Dig. 10 (the cases cited in the argument below), seem to me to differ in their essential elements from the case at bar and are not controlling. The order appealed from should be reversed and the motion denied with $10 costs.

Sedgwick, C. J., concurred, citing Perry v. Chester, 53 N. Y. 250.

PRESUMPTION IN FAVOR OF CERTIFICATE OF ACKNOWLEDGMENT.

SUPREME COURT OF THE UNITED STATES, DECEMBER 17, 1883.

YOUNG V. DUVALL.

In a suit to set aside a deed of trust executed to secure the payment of a note signed by husband and wife, and the acknowledgment of which was certified as required by law, it was in proof that the wife signed the note and the deed, having an opportunity to read both before signing them; she was before an officer competent to take her acknowledgment, and he came into her presence, at the request of the husband, to take it; and she knew, or could have ascertained, while in the presence of the officer, as well to what property the deed referred as the object of its execution. Held, that the certificate must stand against a mere conflict of evidence as to whether she willingly signed, sealed and delivered the deed, or had its contents explained to her by the officer, or was examined privily and apart from her husband; and that even if it be only prima facie evidence of the facts therein stated, it cannot be impeached, in respect to those facts, except upon proof which clearly and fully shows it to be false or fraudulent.

A

PPEAL from the Supreme Court of the District of Columbia. The opinion states the case.

HARLAN, J. It is provided by the Revised Statutes of the United States, relating to the District of Columbia, that "when any married woman shall be a party executing a deed for the conveyance of real estate or interest therein, and shall only be relinquishing her right of dower, or when she shall be a party with her husband to any deed, it shall be the duty of the officer authorized to take acknowledgments, before whom she may appear, to examine her privily and apart from her husband and to explain to her the deed fully;" further, "if upon such privy examination and explanation, she shall acknowledge the deed to be her act and deed, and shall declare that she had willingly signed, sealed and delivered the same, and that she wished not to retract it, the officer shall certify such examination, acknowledgment and declaration, by a certificate annexed to the deed and under his hand and seal," to the effect indicated in the

form prescribed by the statute. Rev. Stat. Col., § 450.

It is also provided that "when a privy examination, acknowledgment, and declaration of a married woman is taken and certified and delivered to the recorder of deeds for record, in accordance with the provisions of this [the 14th] chapter, the deed shall be as effectual in law as if she had been an unmarried woman; but no covenant contained in this deed shall in any manner operate on her or her heirs, further than to convey effectually her right of dower or other interest in the real estate which she may have at the date of the deed." Id., § 452.

These statutory provisions being in force, there was placed upon record in the proper office in the District of Columbia, on the 17th day of November, 1875, a deed of trust purporting to have been executed by Mark Young and Virginia Young, his wife, and to have been on the same day, acknowledged before B. W. Ferguson, a justice of the peace in and for the District of Columbia. The certificate of that officer, under his hand and seal, shows that the grantors were personally known to him to be the persons who executed the deed; that they personally appeared before him, in this district, "and acknowledged the same to be their act and deed, and the said Virginia Young, wife of said Mark Young, being by me [him] examined privily and apart from her husband, and having the deed aforesaid fully explained to her, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it."

This deed of trust conveyed certain real estate, in the city of Washington, the property of Mrs. Young, to the appellees, Duvall and Holtzman, in trust to secure the payment of a note executed by the grantors, whereby they promised to pay to the order of John Little, two years after date, at the National Metropolitan Bank, the sum of $8,000, with interest at the rate of ten per cent until paid. Neither Little, nor the present holder of the note, had any knowledge of the circumstances attending the execution of the deed. Default having occurred in the payment of the debt so secured, the trustees advertised the property for sale at public auction. Thereupon Mrs. Young instituted this suit for the purpose of preventing such sale and to obtain a decree declaring the deed of trust fraudulent and void, and requiring it to be surrendered for cancellation.

The bill sets forth several grounds upon which relief to that extent is asked, but those only deserve serious consideration which are embraced by averments to the following effect: That the contents of the deed were never explained to her; that she signed it because she was required, ordered and commanded to do so by her husband and a person who was with him; that its contents were never known or explained to her by the officer; that so far from her having been examined, in reference to the deed, privily and apart from her husband, the latter remained in the presence of herself and the officer on the occasion when it is claimed she signed, acknowledged, and delivered it. It was in proof that Mrs. Young signed the note and the deed, having an opportunity to read the papers before signing them; she was was before an officer competent under the law to take her acknowledgment, and he came into her presence for the purpose of receiving it; he so came at the request of the husband, who expected, by means of the executed deed of trust, to secure a loan from John Little of the amount specified in the note; and she knew or could readily have ascertained while in the presence of the officer, as well to what property the deed referred as the object of its execution. There is however a conflict in the evidence as to whether she willingly signed, sealed and delivered

the deed, or had its contents fully or at all explained to her by the officer, or was examined privily and apart from her husband.

It is not necessary to enter upon a review of the adjudged cases bearing upon the general question of the effect to be given to the certificate of an officer taking an acknowledgment of a married woman to a conveyance of real estate; for if it be assumed, for the purposes of this case, that it is only prima facie evidence of the facts stated in it, we are of opinion that the integrity of the certificate before us has not been successfully impeached. The certificate of the officer states every fact essential, under the statute, to make the deed, upon its being delivered for record, as effectual in law as if Mrs. Young was an unmarried woman. The duties of that officer were plainly defined by statute. It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed, sealed and delivered the same, and wished not to retract it. The responsibility was upon him to guard her against coercion or undue influence upon the part of the husband, in respect of the execution and delivery of the deed. To that end he was required to examine her privily and apart from the husband. These facts were to be manifested by a certificate under his hand and seal. Of necessity arising out of considerations of public policy, his certificate must, under the circumstances disclosed in this case, be regarded as an ascertainment, in the mode prescribed by law, of the facts essential to his authority to make it; and if under such circumstances, it can be contradicted, to the injury of those who in good faith have acted upon it-upon which question we express no opinion-the proof to that end must be of such a character as will clearly and fully show the certificate to be false or fraudulent. Insurance Co. v. Nelson, 103 U. S. 544, 547. The mischiefs that would ensue from a different rule could not well be overstated. The cases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate which would inevitably follow from one less rigorous.

It is sufficient for the disposition of this case to say, that even upon the assumption that the certificate is only prima facie evidence of the facts stated in it, the proof is not of that clear, complete and satisfactory character which must be required to impeach the official statements of the officer who certified Mrs. Young's acknowledgment of the deed in question. The decree must therefore be affirmed.

It is so ordered.

NOTE CONTAINING PROMISE TO PAY ATTORNEY'S FEE NOT NEGOTIABLE INSTRUMENT.

MARYLAND COURT OF APPEALS, NOVEMBER 16, 1883.

MARYLAND FERTILIZING AND MANUFACTURING CO. V. NEWMAN.*

A written promise to pay a specified sum of money two months after date, and if not paid when due, to pay all costs and charges for collecting the same, with interest, is not, in legal contemplation, a negotiable promissory note, forasmuch as the costs and charges of collection, part of the sum agreed to be paid, are uncertain and contingent. CTION upon promissory note. The opinion states the case. Plaintiff appealed from a judgment sustaining a demurrer to the complaint.

A

Charles H. Gibson, for appellant.
William R. Martin, for appellee.

*Appearing in 60 Maryland Reports.

ALVEY, J. The plaintiff in this case sues as indorsee of what is alleged to be a negotiable promissory note made by the defendant, and the question is whether the instrument sued on is, in legal contemplation, a negotiable instrument or not. The question was raised in the court below by a demurrer to the declaration; and the declaration avers that the defendant, on the 29th of September, 1880, by his promissory note, payable two months after date, promised to pay David C. Avery, or order, $93; payable at the Easton National Bank of Maryland; and if not paid when due, promised and agreed to pay all costs and charges for collecting the same, with interest; and that the said Avery indorsed the said note to the plaintiff, and the same was duly presented when due for payment, and was dishonored, etc. The court below ruled the demurrer good, and entered judgment for the defendant, from which the plaintiff appealed.

A promissory note may, in brief, be defined to be a written promise, not under seal, to pay a certain sum of money unconditionally. At common law such note was not transferable, and by the decision of the courts it was not allowed to acquire, by custom among merchants, the quality of negotiability. Buller v. Cripps, 6 Mod. 29; Clerk v. Martin, 2 Ld. Raym. 757. But by the Stat. 3 and 4 Anne, ch. 9, it was provided "that all notes in writing that shall be made and signed by any person, etc., whereby such person, etc., shall promise to pay to any other person, his, her, or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be, by virtue thereof, due and payable to any such person, etc., to whom the same is made payable; and also every such note payable to any person, etc., his, her, or their order, shall be assignable or indorsable over, in the same manner as inland bills of exchange are or may be, according to the custom of merchants." The statute further provides that actions may be maintained on such notes by the payees, or the indorsees thereof, "in like manner as in cases of inland bills of exchange." By the statute therefore such promissory notes are made commercial instruments, and when they are made payable to order or to bearer, they are indorsable and transferable as commercial paper, and are placed upon the same footing of inland bills of exchange. Bowie v. Duvall, 1 G. & J. 175.

It is true, no particular form of words is essential to constitute a valid promissory note or bill of exchange. But there are certain essential elements that every valid promissory note must contain, and the principal among these is a promise to pay a certain sum of money unconditionally. If the note be wanting in this respect, while it may be a valid specific agreement, and assignable under the provisions of the Code, it cannot be treated as a valid, negotiable promissory note to be passed by indorsement. It is of great importance to the use and office of such commercial negotiable instruments as bills and notes, that they should be kept free of all conditions and singular and unusual stipulations, such as we find on the face of the note in question, whereby their negotiability might be seriously clogged or impeded. It would appear to be the requirement of the statute, as well as of the long established custom of merchants, that the note to be negotiable, should be certain and unconditional, and not be trammelled by conditions or contingencies of any kind. In the note declared on in this case, the stipulation for the payment of all costs and charges incurred in the collection of the note, introduces an element of uncertainty quite inconsistent with the degree of certainty required as to the sum to be paid. The costs and charges of collection could never, with accuracy, be known until the collection had been made complete; and hence by coupling the certain sum

mentioned in the note with that which is uncertain, and treating the note as an entire contract, it is for an unascertained sum, and therefore uncertain on its face as to the amount promised to be paid. This as we have seen, is not allowable in notes intended to be negotiable.

Notes of similar import to that declared on in this case have been under consideration in several of the State courts of the country; but it would appear that the decided preponderance of authority is against holding such notes to be negotiable.

In Woods v. North, 84 Penn. St. 407, the note sued on contained a promise to pay to the order of the payee a certain sum of money, "and five per cent collection fee, if not paid when due;" and in that case, it was held that the note was not negotiable, and that the indorser thereon was not liable. That was greatly more certain as to the sum to be paid than the promise in this case; for there the rate of percentage for collection was fixed. The same doctrine is, in express terms, affirmed, in the recent case of Johnson v. Speer, 92 Penn. St. 227.

In the case of First National Bank of New Windsor v. Bynum, 84 N. C. 24, the same principle was maintained, and the case of Woods v. North, 84 Penn. St. 407, applied and affirmed. And in the case of the First National Bank of Trenton v. Gaz, 60 Mo. 33, where the note, in addition to a sum certain promised to be paid, contained a stipulation to pay ten per cent as attorney's fee, if the note was not paid at maturity and was placed in the hands of an attorney for collection, it was held that such note was not a negotiable instruSee also Morgan v. Edwards, 53 Wis. 599, and Mahoney v. Fitzpatrick, 133 Mass. 151. We might refer to several other cases holding the same proposition, but we deem it unnecessary.

ment.

In some few States different views have prevailed, and notes of similar import and character to that declared on in this case have been held to be negotiable, notwithstanding the stipulation to pay all costs and charges of collection; as in the cases of Stoneman v. Pyle, 35 Ind. 103; Wyant v. Pottorf, 87 id. 512; Sperry v. Horr, 32 Iowa, 184, and Seaton v. Scoville, 18 Kans. 433. We cannot however adopt the reasoning of those

cases.

In two or three States the stipulation in the note for the payment of costs and expenses of collection, on default of payment, has been treated as a stipulated penalty, and as such has been declared void; as in the cases of Bullock v. Taylor, 39 Mich. 137, and Witherspoon v. Musselman, 14 Bush, 214. But to declare such stipulation void, in order to maintain the negotiable character of the note, is certainly a strong thing for the court to do, unless it clearly contravened some established principle of law. Parties have the right to make their contracts in what form they please, provided they consist with the law of the land; and it is the duty of the courts so to construe them, if possible, as to maintain them in their integrity and entirety. While the instrument under consideration may not be a valid negotiable promissory note, it does not, by any means, follow that it is not a valid contract of another description.

In the case of Smith v. Nightingale, 2 Stark. N. P. 375, by the instrument declared on the party promised to pay a sum certain, "and also all other sums that should be found to be due;" and it was held that the instrument could not be declared on as a promissory note, even for the sum certain; and Lord Ellenborough said: "The instrument is too indefinite to be considered as a promissory note, for it contains a promise to pay interest for a sum not specified, and not otherwise ascertained than by reference to the defendant's books; and since the whole constitutes one entire promise, it cannot be divided into parts." Byles