We are not without instances of some what analogous interests in real estate, if we class the inchoate right to dower among "possibilities." The wife is invested with a possibility of succeeding to a portion of her husband's estate, dependent upon her surviving him. And "possibilities" might always have been assigned in equity. The class of cases referred to is sufficiently represented by Warmsby v. Tanfield, 1 Ch. Rep. 29, where it was broadly enunciated that a grant of a future possibility was not good in law, yet a possibility of a trust in equity might be assigned. And in Hobson v. Trevor, 2 P. Wms. 191, the possibility of the heir's succeeding to his ancestor's estate, was held to be the subject of assignment in the ancestor's lifetime. And in Wright v. Wright, 1 Ves. Sr. 411, there was a devise of land to Robert or his heirs, to take effect on the happening of a contingent event. Robert, before the contingency happened, conveyed all his interest to his youngest son and his heirs, and then died. The contingency happening, it was held that Robert's heirs could not claim this against his father's deed. In other words, this possible interest, depending on the happening of an event, was held to be the subject of conveyance before the contingency happened. These ancient cases are cited to illustrate the principles that have been held applicable to these interests semper ubique et ab omnibus, if we may use the term.

Later on, that master of equity jurisprudence, Story, says: "To make an assignment valid at law, the thing which is the subject of it must have actual or potential existence at the time of the grant or assignment. But courts of equity will support assignments of things

which have no present, actual or potential existence, but rest in mere possibility; not indeed as a present possible transfer operative in præsenti; for that can only be of a thing in esse; but as a present contract, to take effect and attach as soon as the thing comes in esse." Eq. Jur. 12th Ed. by Perry, 1040.

If the above analogy be well drawn, it would seem that the wife's inchoate right to dower might always have been assigned for value in equity; yet, from its precarious nature, was seldom, if ever, made the subject of barter. And it may here be noticed that Mr. Washburn's remarks, that her conveyance or bar of her right acts by estoppel, is well supported by the above passage from Story. That it has been regarded as a distinct species of property in Ontario, appears not less from the decisions of the courts, than from the enactments of the legislature, giving the wife power to part with it by conveyance, either with or without her husband's concurrence, which conveyance should have the same effect as a fine levied. So that, to use Lord Chancellor Talbot's words, 3 P. Wms. 234: "here was the opinion of the whole Parliament in the point,' that, whereas she might heretofore have parted with her interest by fine levied, now she may still do so, but the mode of parting with it was simplified by the substitution of a conveyance for the tedious and expensive process of levying a fine. In Miller v. Wiley, 17 C. P. 308, it was held that the right to dower would not pass as incident to the husband's estate, merely from the wife's joining in a deed with him. There must have been express words in the deed, conveying or releasing the right. Though, where the deed failed to take effect by reason of the husband's having no interest to convey, or was void by reason of fraud, the dower would not pass, even when express words were used in the deed. This arose

from a want of intention to assign the interest as a distinct species of property, or otherwise than as incident to the husband's estate.

On further examination, the inchoate right will be seen to be of a higher order of interest than a mere possibility. Some writers have thought, that where the object of a contingent interest was not ascertained, the interest was a mere possibility, but became "coupled with an interest when the person became fixed This exactly defines the wife's interest, for she is the ascertained object of a contingent interest. For though the event of the husband's death can not be said to be a contingency, yet the uncertainty of its happening in the life-time of the wife makes it so for the purpose of this interest. It may be argued

that her interest is of a like nature with that of one of two persons, in favor of the survivor

of whom a gift is to take effect, which is said to be a "mere possibility." But her interest is swallowed up or merged in the estate of the husband on her death; he does not take the same interest which would have vested in her had she survived him. So that this analogy is imperfect.

Let us glance at several instances of naked possibilities, and see if the wife's interest comes within a description which would in clude them. The heir has a possibility of succeeding to his ancestor's estate. A devisee named in the will of a person living has a possibility of receiving the benefit of the devise. But has either of them more than the mere possibility? It can not be said that either one has an interest, in addition to the possibility; for, though we have an instance above of a purchaser bargaining with the heir for his chances, still the ancestor may disinherit the heir without his consent, by making a will; and the purchaser takes nothing. And the devisee, again, may be deprived of all possibility of taking under the will by its cancellation, or the making of a new one; and this, even in opposition to his dearest wishes. In what position does the wife stand when compared with these? She is the certain object of the interest termed "right of dower," as the heir apparent is the ascertained person to succeed to the estate of the ancestor, or the devisee the person fixed to take under the will in which he is named. In what, then, does her position differ from that of either of these? In this, that she has an interest which, without her consent, can not be diverted from the course in which it will gravitate, in case she survives her husband. While the heir and devisee may each be deprived, without their consent, of their present rights, the widow has such an interest, coupled with the possibility of surviving her husband, as she can not be divested of except with her own consent, and for which, upon parting with it, even to the person owning the estate out of which it is to be enjoyed, she is at liberty to ask a quid pro quo. Since she has something which she may demand a consideration for upon parting with it, it can hardly be denied that this something, which may one day become an actual vested estate in lands, may be called an interest. It must be admitted that it is, at least, a contingent one. That it is a future one, or one to be enjoyed, if at all, in the future, will not be disputed. That it is a possibility is obvious. And if the

above arguments have any value, we may conclude that the possibility is "coupled with an interest." Thus it is easily recognizable as belonging to a class of rights well known in courts of equity and among conveyancers.

The interest of the heir apparent in his ancestor's estate is a distinct species of property, and a negotiable one. An it were not, post obits were but a dream—a nightmare. The interest of the devisee, under the will of a living person, is a distinct species of property, and a negotiable one. To deny this, the falsity of the decision in Wright v. Wright, supra, must be first shown. An it were not so, the words of Story are bereft of their significance. If the heir apparent has a negotiable interest, depending not only on the chance of his outliving his ancestor, but also on the good will of his sire; if the devisee has a negotiable interest, depending not only on the chance of his surviving him, but also on the favor of his testator; has the wife less? Nay; rather more! For the future enjoyment of her interest depends only upon the chance of her surviving her husband; and she can altogether dispense with the concurrence and favor of her spouse, so that her moral deportment be in all points blameless.

In answer to this course of reasoning, it would be interesting to know the method by which such an able man as Mr. Washburn arrived at the conclusion, that "her right is not in any sense an interest in real estate, nor property of which value can be predicated ; she can not convey it, nor is it a thing to be assigned by her during the life of her husband." And it is to be regretted that the learned author did not think fit to give his reasons therefor.

Toronto, Canada. E. DOUGLAS ARMOUR.

ment, such payment as will prevent the operation of the statute of limitations.

This was an action of contract to recover the balance of two promissory notes, dated respectively July 1st and 7th, 1863, payable to the plaintiff, or order, and both signed by the defendant and by one John D. Blanchard, since deceased. Upon each of the notes was an indorsement of $50, bearing date June 8, 1866. Writ dated June 7, 1872.

The defendant was called as a witness, and was allowed to testify, against the plaintiff's objection, that, at the time of the indorsements, no payments were made, and that none were ever made upon either of the notes. The plaintiff then offered to prove that it was understood and agreed between the plaintiff and the defendant, at the time these indorsements were made, that the making of the indorsements, or what occurred on that occasion, should, as between the parties, be deemed a payment of $50 upon each of the notes, and that such payment should have the effect to take the notes out of the statute of limitations, when six years from their date had passed, and that the plaintiff might not sue the notes before the six years from their date had expired; and that, relying upon this agreement, and in pursuance thereof, he did not sue the notes until after more than six years from their date. To this evidence the defendant objected, and it was excluded.

M. P. Knowlton, for plaintiff; H. Morris, for defendant.

ENDICOTT, J., delivered the opinion of the

court:

The indorsements on the notes in the handwriting of the defendant, to the effect that $50 had been received on each note, were prima facie evidence of actual payments, and were sufficient to prevent the operation of the statute of limitations. Sibley v. Phelps, 6 Cush. 172. They were in the nature of receipts that so much money had been paid by the defendant and received by the plaintiff. But they were only prima facie evidence, which could be rebutted by proof that the transaction was merely colorable or incomplete, and that no money had in fact been paid. A receipt or indorsement is always open to explana tion. It is merely evidence of a fact, and may be explained or contradicted by either party. Hildreth v. O'Brien, 10 Allen, 104; Foster v. Dawber, 6 Exch. 839, 848; McRae v. Purmort, 16 Wend, 460, 473.

The defendant offered evidence that no money was paid at the time of the indorsements, or at any time, This was not denied by the plaintiff; but he offered to prove that it was agreed when the indorsements were made, that, as between the parties, they should be deemed to be a payment of $50 on each note, and that such payment should have the effect to take the notes out of the statute of limitations, when six years from their date had passed; and that the plaintiff might be relieved from suing the notes within six years, upon which agreement the plaintiff relied, and did not bring his action until after the expiration of six years

from their date. The notes were dated in July, 1863, and it appeared by the testimony of the plaintiff that the indorsements were in fact, made a short time before the expiration of the six years, but were dated back to June, 1866.

The presiding judge ruled that the evidence of the agreement offered by the plaintiff was inadmissible, and that there was no such payment upon the notes as would take the case out of the statute of limitations. We are of opinion that his rulings were right.

The sta ute provides that no acknowledgment or promise shall be evidence of a new or continuing contract, whereby a case can be taken out of the operation of the statute of limitations, unless made or contained in some writing signed by the party chargeable thereby. Gen. Stats., Ch. 155, § 13. This provision can not lessen the effect of the payment of any principal or interest. § 17. It is not contended by the plaintiff that the indorsements on the notes were signed by the defendant within the provisions of § 13.

So much of the oral agreement as related to the effect of the alleged payment, to take the case out of the operation of the statute, was clearly incompetent, and the precise question presented is whether the indorsement on the notes, accompanied by no payment of money or other valuable consideration passing between the parties, can, by a parol agreement, be treated as an actual payment in law.

There can be no question that oral agreements are competent to prove that certain payments of money, or that a note, or the transfer of property, or settlement of accounts, or the assuming of certain obligations of a pecuniary character, actually performed, are, as between the parties, to be taken as payments on account, or in reduction of a particular note or other debt, within the meaning of the statute. Williams v. Gridley, 9 Met. 482; Sibley v. Phelps, 6 Cush. 172; Illsley v. Jewett, 2 Met. 168; Sigourney v. Wetherell, 6 Met. 553; Porter v. Blood, 5 Pick. 54. In Hooper v. Stephens, 4 A. & E. 71, it was said by Lord Denman, when anything is received upon an agreement in reduction of a debt, that is a payment to take the case out of the statute. Bodger v. Arch, 10 Exch. 333; Amos v. Smith, 1 H. & C. 238. See Ramsay v. Warner, 97 Mass. 8; Whipple v. Blackington, 97 Mass. 476; Foster v. Starkey, 12 Cush. 324; Pierce v. Tobey, 5 Met. 168. But we are of opinion that such oral agreements must be conformed to, and relate and give color to, some actual transaction whereby something of value passes between the parties, which, in fact, reduces the debt, and can not be extended or give the character of payment to a mere formal indorsement or receipt, which does not represent the transfer of money or other thing of value, nor any reduction of the debt binding and conclusive between the parties. In other words, that payment, within the meaning of the statute, must be the actual payment of money or its equivalent, upon the principal or interest of the debt, and that payment as a fact is what operates as a renewal of the promise, and not the indorsement, which is merely evidence of the fact.

If the fact of payment in this sense is not established, there is no payment on account of the debt. It is the act of payment that takes the case out of the statute. Egery v. Decrew, 53 Maine, 392.

It was held in Williams v. Gridley, 9 Met. 482, that an oral admission of a defendant, that he had made a payment on the demand in suit within six years, was competent evidence of payment to take the case out of the statute. The oral admission that the debt was due would not be sufficient, but the admission of payment as as a fact was sufficient. And Mr. Justice Dewey, in considering the statute and the effect to be given to a "payment of any principal or interest," says: "Is it not payment proved by any evidence competent, under the rules of the common law, to establish such fact?" In this case the English decisions are reviewed, where it has been held that such admissions are competent, but the fact of payment must be proved by other evidence, and, among them, Waters. v. Tompkins, 2 C. M. & R. 723, 726, in which case Baron Parke, in giving judgment, remarks: "The meaning of part payment of the principal is not the naked fact of payment of a sum of money, but payment of a smaller on account of a greater sum due from the person making the payment to him to whom it is made, which part payment implies an admission of such greater sum being then due, and a promise to pay it; and the reason why the effect of such a payment is not lessened by the act is, that it is not a mere acknowledgment by words, but it is coupled with a fact. ** But, if the payment of a sum of money is proved as a fact, and not by maere admission, etc." The difference in the two cases relates simply to the sufficiency or method of proof; both agree that payment as a fact must be proved to take the case out of the statute. See Foster v. Dawber, 6 Exch. 839, 853.

It is the act of payment on account of the debt that takes the case out of the statute. It therefore necessarily follows that an indorsement which it is agreed does not represent such a payment, and is not signed by the party to be charged, can not be made, by force of an oral agreement, evidence of a new and continuing contract. The effect of such evidence would be to defeat the operation of the statute, which can be done only by a writing duly signed, or by a real payment on account of the debt.

This view is sustained by the authorities previously cited, and we know of no case where a mere agreement of the parties to treat an indorsement or receipt as payment, when no money or its equivalent passed on account of the debt, has been held to take the case out of the statute.

In Webber v. Williams' College, 23 Pick. 302, the defendant, before the expiration of the six years, professed in writing, in answer to a demand for payment of a note, that if the plaintiff would forbear to bring an action at that time, he should have the same rights for one year more that he then had. The court say that this was a waiver of the statute. But we think it plain that this was merely another form of saying that it was a sufficient acknowledgment within the statute. It was an acknowledgment of the debt, in

writing, duly signed by the treasurer of the college, as appears by a reference to the record.

The case of Bodger v. Arch, 10 Exch., 333, was cited at the argument, and two later English cases, in the Court of Exchequer, have come to our notice, which touch the question here considered. In Bodger v. Arch, it was held that an agreement between the plaintiff and the defendant, that the future maintenance of the plaintiff's child by the defendant should be taken in part payment of the interest on the defendant's note held by the plaintiff, and which had been acted upon within six years before action was brought, was a sufficient payment within the statute. The case was decided on the ground that a part payment need not be in money, but in any mode which the parties agree shall be treated as equivalent to money. Baron Parke, in delivering judgment, stated that all his brethren concurred in the decision, though he himself had some doubt. Baron Martin was of opinion that any facts which would prove a plea of payment of interest in an action brought to recover it would be sufficient to bar the statute. If that is the true test, the indorsement in the defendant's handwriting would not preclude the plaintiff from showing that no money had been paid. In Amos v. Smith, 1 H. & C. 238, the trustees of a marriage settlement lent to the husband in 1833 some of the money settled to the separate use of his wife, on security of the bond of the husband and the defendant. No interest was paid by the husband, and, in 1847, it was arranged between the plaintiffs, the husband and the wife, that she should give the plaintiffs a receipt for the interest due to that date, which she did; and she afterwards gave receipts to the plaintiffs for each half-year's interest until 1860, which was within six years. No money passed between the parties, and it was held that the transaction amounted to a payment or satisfaction of the interest so as to take the case out of the statute of limitations. It is to be noticed that the statute contains the words "payment or satisfaction," while our own contains the word payment only. The grounds of the decision are that, by an agreement between the parties, including the wife, a portion of the interest money due the wife under the settlement should be applied to the payment of the interest on the husband's note. It was a mode of settlement of accounts between the parties, and Baron Bramwell was of opinion that the wife could not maintain a suit against the trustees to enforce payment of interest to her. He seems also to have laid some stress upon the word "satisfaction," used in the statute, and said that he could not doubt that the interest had been satisfied by the transaction which took place. both these cases, the agreement was in regard to actual pecuniary transactions, namely, to the support of a child and to the settlement of accounts.

In

In Maber v. Maber, L. R. 2 Ex. 153, after a note due to the plaintiff from his son had been barred by the statute, the plaintiff, his son, and his son's wife had an interview, in which the interest due was calculated, and the son put his hand in his pocket as if to take out the money and pay it. The plain

tiff stopped him, and, writing a receipt for the interest, gave it to his son's wife, saying: "I shall make you a present of this money. See you take care of the receipt; it may be useful to you with "Payment was indorsed but no my executors." money passed, and it was held, Baron Bramwell dissenting, to be a good payment. Baron Martin gave the principal opinion, and puts the decision on the ground that the son was prepared to pay the debt, had the money in his hand to pay, when the creditor in substance said: "Do not pay me. I give you that money, and I consider it as having been paid," at the same time handing the wife a receipt and indorsing payment on the note, and that it would have been a mere formality to have handed the money over which was at hand, and then to have taken it back. Baron Channell, with some hesitation, concurred with Baron Martin, on the ground that the money was in the son's pocket; that he was ready to produce it and pay it when the receipt was given and the indorsement made. Baron Pigott concurred, but gave no opinion. Baron Bramwell, (admitting that, if the evidence would have supported a plea of payment, there was sufficient to take the case out of the statute) was of opinion that the evidence would not support a plea of payment, that there was no alteration in the legal position of the parties, and that the transaction in substance, on the part of the plaintiff, was, "You need not pay me; I will not call upon you to pay, but I will consider you have, and will give you a receipt as though you have paid me," and that this was in no sense a payment within the meaning of the act. The material facts upon which the majority of the court base their decision, namely, that the money was there; that the debtor was ready and intended to pay it, and was prevented by the act of the creditor, are entirely wanting in the case at bar, and we cannot regard it as authority to govern this decision. The case goes farther than any decided case that has come to our knowledge, and is in conflict with the numerous cases in the same court which hold that actual payment in money or its equivalent is necessary to avoid the effect of the statute.

It is contended by the plaintiff that the defendant is estopped to deny that the payment on the notes was properly indorsed. But an agreement ineffectual to take a case out of the operation of the statute, because not contained in a writing signed by the party to be charged thereby, cannot work an estoppel. If it could, the statute of limitations and the statute of frauds could always be avoided, when an agreement has been acted upon by the promisee and not performed by the promisor. Brightman v. Hicks, 108 Mass, 246.

JUDGMENT FOR THE DEFENDANT.

DURING the trial of a prisoner for a felony, the late Judge Pickens, of Alabama, was once asked to charge the jury" that it is better that ninety and nine guilty men should escape, than that one innocent man should be punished." "Yes," said the witty judge, "I will give that charge, but in the opinion of the court the ninety and nine guilty men have already escaped in this county."

1. HE WHO DEALS WITH A MARRIED WOMAN through the agency of her husband, must show affirmatively, when he sues her upon the contract, (1) that the act was within the power delegated; and, (2) that it was in a transaction and for a consideration in respect of which coverture did not disable her. In the absence of evidence that, with her knowledge, the husband had ever before assumed to act beyond the scope of the express power, the scope of his authority must be determined by the instrument conferring it.

66

2. A POWER OF ATTORNEY GIVEN by a married Woman to make, sign, indorse, and accept all checks, notes drafts, and bills of exchange for her and in her name," is necessarily limited to transactions which, under the statute, she has power to perform. It does not authorize drawing a post-dated check, even for the benefit of the separate estate.

3. THE MANAGEMENT OF HER LANDED PROPERTY and its income by a married woman is not a separate business within the statute. The power to carry on business conferred by the statute has relation to business pursuits, mechanical, manufacturing or commercial.

4. ONE SUING A MARRIED WOMAN must prove every material fact; not only the contract, and that it' was made by her or her authorized agent, but that it was a contract she was capable of making.

5. THE COURT CAN NOT PRESUME that a simple contract, with nothing on its face to indicate the fact, was made for the benefit of her separate estate.

6. THE COMMON LAW DISABILITIES of a married woman are general, and the statute capabilities are exceptional; and he who asserts the validity of her contract must give evidence to bring it within some exception.

Appeal by defendant from a judgment of general term, affirming judgment for plaintiff entered on a referee's report.

James E. Wheeler, for appellant; Samuel J. Crooks, for respondent.

Charles W. Nash and Nelson H. Fuller sued Isabella H. Mitchell on a bank check, drawn on her account, and post-dated, by her husband, as her attorney, and by him given to plaintiffs in exchange for their check of the same amount.

The defendant had a separate estate, consisting of ten acres of land in Westchester county, N. Y., and of lands in New Jersey. Her husband, acting as her agent, employed persons to carry on the

*We are under obligations to the editor of "Abbott's New Cases" for this valuable case, which will appear in the forthcoming volume of his "New Cases." ED. C. L J.]

+ Compare Craighead v. Peterson, 10 Hun, 596; Voltz v. Blackmar, 64 N. Y. 440; Wicks v. Hatch, 62 Id. 535, affi'g 38 Super. Ct. (J. & S.) 95.