pry for one moment into the secrets of the sepulchre. They alone are the violators of every sentiment of delicacy and benevolence who insult the disconsolate relatives with the tale of the robbery and the pursuit, and with the foul spectacle of dismemberment they may have at length discovered.

It would appear that in a proper case the court, in the interests of justice, will compel the exhuming and examination of a dead body which is under the control of a plaintiff, if there is strong reason to believe that without such examination, a fraud is likely to be accomplished, and the defendant has exhausted every other method known to the law of exposing it. However such an order would be made only upon a strong showing to that effect. It would be a proceeding repugnant to the best feelings of our nature, and likely to be in many cases so abhorrent to the sensibilities of the surviving relatives, that they would prefer an abandonment of the suit to a compliance with the order. Thus spake the court in a case where the order for exhuming was asked for and refused as not being justified under the circumstances. The action was on a policy of insurance, and the defense was that the insured had falsely warranted that he had never received any serious personal injury, whereas his skull had been fractured in boyhood, and had been healed by trephining; to prove this the company proposed to disinter his body after the suit had been pending eighteen months, upon the sole testimony of his physician that the deceased had said that he had been told of such an accident and operation. The counsel for the plaintiff called the proposal revolting," and said

that to break the signet of the grave, and take from its resting place the sacred property of relatives to gratify the corporation's mercenary curiosity, would be worse than Shylock's demand. Grangers' Ins. Co. v. Brown, 57 Miss. 308.

R. VASHON ROGERS, JR.

MARRIED WOMAN'S CONTRACT-ATTORNEY
FEE IN DIVORCE SUIT.

MISSOURI SUPREME COURT, OCTOBER TERM, 1882.

MUSICK V. DODSON.*

A promise by a married woman to pay an attorney a fee for obtaining for her a divorce from her husband, is not binding on her, and therefore not on a subsequent husband; neither is her affirmation of such promise after the divorce has been obtained.

The moral obligation resting upon a woman to make good her promise given during coverture, is not a sufficient consideration to uphold an affirmation of the promise made after she becomes discovert.

The abandonment of a married woman by her husband for a period of time sufficient to entitle her to a divorce, does not remove her disability to contract, unless he has gone beyond the limits of the State.

ACTION on contract for services. The opinion states

the case. Plaintiff appealed.

Millan & Musick, for appellant.

A. D. Risdon, for respondent. SHERWOOD, J. Action before a justice of the peace, based on the following statement:

the suit for divorce, or contracting with plaintiff to bring said suit for divorce, and that plaintiff did bring said suit, and did successfully prosecute the same. and she was divorced from her said husband; that plaintiff's services therein were reasonably worth $20. which amount she agreed to pay plaintiff, before and after the divorce was granted, but which is due and unpaid; that afterwards on the day of -, 1878, defendant, Thomas Dodson, was duly and legally mar ried to Louisa Allen, and is now her husband. Wherefore plaintiff prays judgment against said Thomas Dodson for said sum of $20 and cost."

A married woman is wholly incapable of making any contract whatsoever, which will bind her personally, or create against her a personal debt or obligation Bauer v. Bauer, 40 Mo. 61; Higgins v. Peltzer, 49 id. 152. And it has been expressly decided, that a married woman's promise to pay an attorney his fee for obtaining a divorce for her, would not be binding upon her. Whipple v. Giles, 55 N. H. 139; S. C., 2 Cent. Law Jour. 484. This being the case, the engagement made with the plaintiff by Mrs. Dodson, now wife of defendant, then wife of James Allen, to pay plaintiff, as an attorney, a certain sum for obtaining a divorce for her from Alleu, cannot be regarded as a debt of the wife of Allen, and if a personal debt of hers, then according to plaintiff's own position, the defendant could not be held legally liable for any thing less than the debt of his wife, contracted anterior to his marriage with her. And if Mrs. Allen could not, during the existence of marital relations with her then husband, bind herself personally, then as a matter of course there could not be any consideration for the promise made by Mrs. Allen, after the divorce was obtained, to pay for such services, so the subsequent promise would be mere nudum pactum and of no binding, obligatory or debt-creating force.

The case of Wilson v. Burr, 25 Wend. 386, gives support to plaintiff's position that a moral obligation on the part of a femme covert, is sufficient to uphold her promise, made after the removal of her disability. That case is based on Lee v. Muggeridge, 5 Taunt, 36, which Mr. Parsons says, "is not law." 1 Pars. Cont. 435. It was subsequently abridged and modified in Littlefield v. Shee, 2 B. & Ad. 811, and denied in Eastwood v. Kenyon, 11 Ad. & El. 438, Denman, C. J. It is said by Mr. Story that where contracts are merely voidable, and not void in their inception, they may be revived by a subsequent promise, provided they were originally founded upon au express or implied request by the party benefited. But where the promise is void ab initio, it is not capable of ratification. Thus where a married woman gave a promissory note, and after her husband's death, promised in consideration of the forbearance of the payee, to pay it, it was held that the note was absolutely void, and that forbearance where there was no cause of action originally, is not a sufficient consideration to raise a promise. *So also where certain goods were supplied to a femme covert, living apart from her husband, and for which she, after his death, promised to pay, it was held that the subsequent promise was void, because the goods being supplied to her during the life of her husband, the price constituted the debt due from him and not from her." 1 Story Const., § 593, and cases cited. Mr. Baron Parke said, "a mere moral consideration is nothing." Jennings v. Brown, 9 M. & W. 501. Chancellor Kent says that the weight of authority is opposed to the view that "a mere moral obligation is of itself a sufficient consideration for a promise except in those cases in which a prior legal obligation or consideration had once existed. 2 Kent, 465.

**

The doctrine of the case of Wilson v. Burr, supra, was departed from in the subsequent cases of Watkins v. Halstead, 2 Sandf. 311; Smith v. Allen, 1 Lans. 101,

and Geer v. Archer, 2 Barb. 224, where the doctrine is repudiated. And before that case was adjudicated a different view of the law had been taken in Ehle v. Judson, 21 Wend. 97, and Smith v. Ware, 13 Johns. 257, which cases were not noticed in that on which plaintiff relies. The views we have expressed touching the point in hand are also supported by Mills v. Wyman, 3 Pick. 207, where the subject of the insufficiency of a mere moral obligation as the basis for a subsequent promise, is very clearly and elaborately discussed, and also by numerous other cases cited in the text-books from which we have quoted.

In Greenabaum v. Elliott, 60 Mo. 25, Wagner, J., delivering the opinion of the court said: "A moral obligation by itself is not a good consideration for a promise. To impart to it any binding character, there must be some autecedent legal liability to which it can attach. Parsons says the rule may now be settled as follows: A moral obligation to pay money or to perform a duty, is a good consideration for a promise to do so, where there was originally an obligation to pay the money or to do the duty, which was enforceable at law before the interference of some rule of law. Thus a promise to pay a debt contracted during infancy, or barred by the statute of limitation or bankruptcy, is good without other consideration than the previous legal obligation. But the morality of the promise, however certain or however urgent the duty, does not of itself suffice for a consideration. In fact the rule amounts at present to little more than a permission to a party to waive certain positive rules of law which would protect him from a plaintiff claiming a just and legal debt."' 1 Parsons Cont., 434. And the same learned author also remarks: "Perhaps an illustration of the rule, that a moral obligation does not form a valid consideration for a promise, unless the moral duty was once a legal one, may be found in the case of a widow, who promises to pay for money expended at her request or lent to her during her marriage. It has been held in England in a case examined in a former note, that this promise was binding, and there are many dicta to that effect in this country; but the current of recent decisions in England is in favor of the view that the promise of a married woman has not, when given, any legal force, and therefore is not voidable, but void, and cannot be ratified by a subsequent promise after the coverture has ceased, nor be regarded a sufficient consideration for a new promise." 1 Parsons Cont. 485. And this court has announced a similar rule in Kennerly v. Martin, 8 Mo. 698, where it was held that the subsequent promise of a widow to pay a physician for professional services rendered her during her coverture, was not founded upon a valuable consideration.

At the common law, if the husband had abjured the realm, or was an alien residing continuously abroad these circumstances invested the wife with the protection and powers incident to a femme sole. Gallagher v. Delargy, 57 Mo. 29, and cases cited. And the same rule has been extended and applied when the husband resided without the State of the wife's residence, he having deserted her. Abbot v. Bayley, Pick. 89; Gregory v. Pierce, 4 Metc. 478. And the point has been ruled in the same way by this court, when the wife resided in this State, separated from her husband, who resided without the State. Rose v. Bates, 12 Mo. 30. But the three cases just cited were put upon the express ground of the continued and intentional absence of the husband from the State, the line of jurisdiction being in a political point, an impassable barrier, and the husband being in consequence thereof as much beyoud the process and jurisdiction of the courts of the wife's residence, as if he had abjured the realm or were an alien residing abroad. This distinction is made plainly to appear in Abbot v. Bayley, supra, where the husband, resident of New Hampshire, by cruelty drove his wife from home, who thereupon, came to Massachusetts, resided there for many years, acting as a femme sole; and had received the note in question, as the proceeds of her own labor. These facts being set forth in plaintiff's reply to defendant's plea in abatement that plaintiff was under the coverture of Peter Abbot, who resided in New Hampshire, the defendant rejoined that the husband was a citizen of the United States, residing therein, and had not at any time renounced or abjured his allegiance thereto, etc. A demurrer was interposed to this rejoinder, and Parker, C. J., discussing this point said: "The question is, whether the replication is an answer to the plea in abatement of coverture of the plaintiff. If these parties to the marriage lived within this Commonwealth, it is certain that the facts stated in the replication would not avoid the plea of coverture, for by the plaintiff's expulsion from the house of her husband, she would have carried with her a credit against him to the extent of her necessary support, and furthermore, might have obtained a divorce a mensa et thoro, and a reasonable alimony out of his estate." And the rejoinder was adjudged bad.

No such case is presented by this record. Nor does the case of Gallagher v. Delargy, supra, cited for plaintiff, resemble the one before us; for there the husband had never resided in this State, where the wife had resided for many years, transacting business as a femme sole. True it is alleged that Allen deserted his wife, but this he might have done and still have resided in this State. The disposition made by the Circuit Court of defendant's motion to dismiss the cause was therefore correct, and judgment affirmed. All concur.

The case at bar is not distinguishable in principle
from the last case or others cited in support of our
views. The case of Gwinn v. Simes, 61 Mo. 335, in its
result, is in accord with this one; for there the recep-
tion of the money on Sunday, constituted a preced- CREDITOR NOT SUBROGATED TO SECURITY

ent good consideration, which might have been en-
forced at law through the medium of an implied
promise, had it not been suspended by some positive
rule of law, and therefore the express promise, to wit:
the mortgage, revived the precedent good considera
tion. 3 Bos. & Pul. 249; Geer v. Archer, supra. It
has been ruled that a wife could, by such an agree-
ment as that on which plaintiff has declared, bind her
then husband, for an attorney's fee for services ren-
dered her in a proceeding for a divorce, instituted by
her husband against her. Porter v. Briggs, 38 Iowa,
166, aud cases cited; S. C., 2 Cent. Law Jour. 681. But A

no case has gone to the extent of holding that any sub

TAKEN BY SURETY.

SUPREME COURT OF THE UNITED STATES,
APRIL 16, 1883.

HAMPTON V. PHIPPS.

Where sureties execute each to the other as security between themselves only, mortgages for the payment of the debt, such mortgages are not available to the creditors of the principal upon the principle of subrogation. PPEAL from the Circuit Court of the United States for the district of South Carolina.

sequent husband would be bound in consequence of opinion states the case.
such an agreement, made by one who at the time of
making it was the wife of another.

The

MATTHEWS, J. The facts upon which the controversy in this suit depends are as follows:

inequitable for the debtor himself to make specific pledges of his own property, limited to the personal indemnity of a single surety, without benefit of participation or subrogation; as when the liability of the surety was contingent upon conditions not common to his co-sureties, and which may never become absolute. Hopewell v. Bank of Cumberland, 10 Leigh, 206.

We are referred by counsel to the case of Curtis v. Tyler, 9 Paige, 432, as an instance in which the rule has been extended to securities in the hands of a surety not derived from the principal debtor. But the fact in that case is otherwise. The question was as to the right of an assignee of a mortgage to the benefit of the guaranty of one Allen to make good any deficiency in the mortgaged property to pay the mortgage debt. This bond had been given to one Murray, a prior holder of the mortgage, who had assigned it to the complainant. The court say in the opinion, p. 436: "In the case under consideration, Murray had assigned the bond and mortgage given to him, and had guaranteed the payment therof to the assignee. He therefore stood in the situation of a surety for the mortgagor, when the latter procured the bond of Allen as a collateral security, or as a guaranty of the payment of his original bond and mortgage. The present holders are therefore in equity entitled to the benefit of this collateral bond, in the same manner and to the same extent as if it had been given to Murray before he assigned his bond and mortgage, and had been expressly assigned by him to Beers, and by Beers to the complainants." It thus distinctly appears that the boud of Allen, which was the collateral security in the controversy, was procured by and derived from the original mortgagor, the principal debtor. We have been referred to no case which forms an exception to the rule as we have stated it.

But the claim of the complainants fails for another reason. The right of subrogation on which they rest it, is merely a right to be substituted in place of each of the co-sureties in respect to the other, in order to enforce the mortgages given by them respectively according to their terms. But the conditions of those mortgages have not been broken, and the very fact, which is supposed to confer the right upon the creditor to interpose the insolvency of the sureties - has rendered it impossible for either to fasten upon the other a breach of the condition of his mortgage. As neither can pay his own proportion of the liability they agreed to divide, neither can claim indemnity against the other for an over-payment. It is entirely clear therefore that neither of the sureties could be, under the circumstances as they appear, entitled as mortgagee, to foreclose the mortgage against the other. The con

right to foreclose them both; a claim that is self-contradictory, for by the very nature of the arrangement, it is impossible that there should be a default as to both. The fact that one, mortgagor had failed to perform his part of the agreement could only be on the supposition that the other had not only fully performed it on his part, but had paid that excess against which his co-surety had agreed to indemnify him. There is therefore no right to the subrogation insisted on, because there is nothing to which it can apply.

It results therefore that the complainants were not entitled to participate in the benefit of the mortgages in question, nor to share in the proceeds of the sale of the mortgaged premises; but that the same should have been applied to the payment of the other judg. ment and mortgage liens upon the premises, in the order of their priority. The decree of May 29, 1879, therefore being the one from which the appeal was taken, is reversed, and the cause remanded with directions to take such further proceedings therein not inconsistent with this with this opinion, as justice and equity require.

Decree reversed.

CONTROL OF CHURCH BODY OVER SITTINGS
IN EPISCOPAL CHURCH – RIGHTS
OF PEW-HOLDERS.

NEW JERSEY SUPREME COURT, JUNE TERM,

1883.

STATE OF NEW JERSEY V. RECTOR OF TRINITY
CHURCH.

Courts of law will interpose to control the proceedings of
ecclesiastical bodies when a right to property is in-
volved, but in no other instance.

An individual right to the occupation of a particular pew will not arise from an occupation of it for ever so long a time.

The English ecclesiastical law forms the basis of the law regulating the affairs of the Episcopal church in this country, and is in force, except as modified by a statute and the rules of the church.

The vestry of an Episcopal church may control the occupancy of a pew under the New Jersey statute, and where the right to occupy has been given by them, it is not alienable or transmissable, and where the pew is rented annually, the one renting it has at most only a leasehold interest for the term.

The court will not review the action of vestrymen in excluding a member of a church from a particular pew, and this though they give no reason for their action and do not give the complaining party a hearing.

ROCEEDINGS by certiorari. The opinion states

dition of each mortgage was, that the mortgagor woul PROC

perform his part of the agreement and indemnify the
mortgagee against the consequences of a failure to do
80. Unless one of them had been compelled to pay,
and had in fact paid, an excess beyond his agreed
share of the debt, there could have been no breach of
the conditions of the mortgage, and consequently no
right to a foreclosure and sale of the mortgaged prem-
ises. And the amount which the mortgagor could be
required to pay, as a condition of redeeming the mort-
gaged premises, in case of foreclosure, would be, not
the amount which the mortgagee, as between himself
and the common creditor, was bound to pay on account
of the debt, but the amount which, as between himself
and his co-surety, the mortgagor, he had paid beyond
the proportion which by the terms of the agreement
between them, was the limit of his liability. The
mortgages were not created for the security of the
principal debt, but as security for a debt possibly to
arise from one surety to the other. As to which of
them has there been as yet any default? Plainly none
as to either.
And yet the complainant's assert the

the case.

G. D. W. Vroom and H. C. Pitney, for plaintiff.

John H. Stuart and T. C. Lowthorp, for defendant, referred to Den v. Bolton, 7 Hal. 206; Miller v. Baptist Church, 1 Harr. 253; Den v. Pilling, 4 Zab. 653; Worrell v. First Church, 8 C. E. Gr. 102; Watson v. Jones, 13 Wall. 679; People v. Steele, 1 Edm. 505; 2 Barb. 397; Hale v. Everett, 53 N. H. 9; Fisher v. Whitman, 13 Pick. 350; State v. Trustees, 11 Ohio, 24; 7 Ohio St. 58; Christian Society v. Macomber, 5 Metc. 155; Packard v. Universalist Soc., 9 Cush. 181; Miller v. Gable, 2 Den. 492; Petty v. Tooker, 21 N. Y. 267; African Church v. Clark, 25 La. Ann. 282; Lucas v. Chase, 9 Bush. 297; Sibley v. Carteret Club, 11 Vr. 295; Fisher v. Keane, L. R. (11 Ch. Div.), 353; Labouchere v. Wharncliff, L. R. (13 Ch. Div.), 346; Hopkinson v. Exeter, L. R. (5 Eq.), 63; Lambert v. Addison, 46 L. T. Rep. 20; 25 Alb. Law J. 418; People v. Board of Trade, 80 Ill. 134; Baxter v. Board of Trade, 83 id. 146; Sturges v. Board of Trade, 86 id. 441; White v. Brownell, 4 Abb. Pr. (N. S.), 162; 2 Daly, 329; Robertson v.