MORSE V. ELY.

[154 MASSACHUSETTS, 458.)

INFANCY-RESCISSION OF CONTRACT — RETURN OF CONSIDERATION. — When an infant employee agrees with his employer, by contracts fairly made, for reasonable prices, and beneficial to the infant, to take in lieu of his wages the difference between the price of a horse and cow exchanged, and further sums for the services of a stallion and a bull, for a calf purchased, and for pasturage received, he may, after selling the cow, and the colt resulting from the service of the stallion, disaffirm the contracts during his minority, and recover his full wages, without returning the consideration received, or putting his employer in statu quo. INFANCY-CONTRACTS - PAYMENT. - An employer cannot avail himself of nor enforce, by way of an allegation of payment, contracts with his in. fant employee, which he could not enforce by direct suit.

ACTION by an infant to recover wages due. Verdict for plaintiff, and defendant excepted.

J. B. Carroll, for the plaintiff.

C. L. Gardner, for the defendant.

BARKER, J. The plaintiff, when of the age of twenty years, and in the employment of the defendant, agreed with him that there should be applied toward the payment of his wages a sum of ten dollars, the difference between the price of a horse and that of a cow which he received in exchange from the defendant, and also further sums for the services of a stallion and of a bull, and for a calf which he bought of the defendant, and for the pasturage of a horse. These items were credited by the minor in his account with his employer. The contracts from which they resulted were fairly made, the prices were reasonable, and all the contracts were in fact beneficial to the minor. The cow, and a colt resulting from the service of the stallion, have been sold by him at their full value, for cash. Whether he is yet in the possession of the calf does not appear. He has elected to avoid his contracts with the defendant, and has brought this action to recover for his wages, without deduction for any of the items. The question raised by the bill of exceptions is, whether, under the circumstances, the defendant is entitled to be credited with their amount.

None of the contracts were for necessaries. The plaintiff had therefore a right to avoid them, at his election, and it was not necessary for him, in order so to do, to return the consideration received, or to put the other party in statu quo: Chand'er v. Simmons, 97 Mass. 508, 514; 93 Am. Dec. 117; Bartlett v. Drake, 100 Mass. 174, 177; 97 Am. Dec. 92; 1 Am. Rep.

101; Walsh v. Young, 110 Mass. 396, 399; Dubé v. Beaudry, 150 Mass. 448; 15 Am. St. Rep. 228; Boody v. McKenney, 23 Me. 517; Price v. Furman, 27 Vt. 268; 65 Am. Dec. 194.

If the sums which the defendant seeks to apply in payment had been actually paid to him in money, the plaintiff, upon rescinding his contracts, could recover them back: McCarthy v. Henderson, 138 Mass. 310; Pyne v. Wood, 145 Mass. 558. The defendant cannot avail himself of and enforce, by way of an allegation of payment, contracts which he could not enforce by a direct suit: McCarthy v. Henderson, 138 Mass. 310. To allow him to do so would be to affirm and enforce against the minor contracts which for his protection the law allows him to rescind.

Exceptions overruled.

INFANCY RESCISSION OF CONTRACT-RETURN OF CONSIDERATION. — A minor may avoid his contract without putting the other party in statu quo or returning the consideration, if the contract was not for necessaries or necessarily beneficial to him: Duhé v. Beaudry, 150 Mass. 448; 15 Am. St. Rep. 228; Briggs v. McCabe, 27 Ind. 327; 89 Am. Dec. 503, and note; extended note to Manning v. Johnson, 62 Am. Dec. 734–738. An infant may, in general, disaffirm his contract without restoring the consideration received by him: Stull v. Harris, 51 Ark. 294. A ninor may avoid his contract without a return of consideration, but he must make it wholly void, in order that he may be protected in retaining the consideration: Chandler v. Simmons, 97 Mass. 508; 93 Am. Dec. 117, and note. A person who elects to disaffirm his contract made during infancy must return the consideration if he has it in his possession at the time of the disaffirmance: Harvey v. Briggs, 68 Miss. 60; Taft v. Pike, 14 Vt. 405; 39 Am. Dec. 228, and note.

MILES v. Worcester.

[154 MASSACHUSETTS. 511.]

MUNICIPAL CORPORATIONS - LIABILITY FOR NUISANCE-ENCROACHMENT OF WALL. A city cannot enlarge its school-grounds by taking the land of an adjoining owner by means of an encroaching wall or fence, without first making compensation; and if, by the action of the elements, or otherwise, without the adjoining owner's fault, the city's wall comes upon his land and continues there, it becomes a nuisance for which the city is liable.

ACTION to recover damages for the encroachment upon plaintiff's land of a division wall belonging to the defendant city. The encroachment was caused by the bulging out of such wall, and this was caused either by the pressure of the earth

behind it, or by the action of surface water or of frost. Verdict for plaintiff, and defendant excepted.

W. S. B. Hopkins and F. B. Smith, for the plaintiff.

F. P. Goulding, for the defendant.

ALLEN, J. It is obvious that the defendant's wall, in its present position upon the plaintiff's land, must be deemed an actionable nuisance, unless the defendant can claim exemption from responsibility on some special ground: Codman v. Evans, 7 Allen, 431; Nichols v. Boston, 98 Mass. 39, 43; 93 Am. Dec. 132; Fay v. Prentice, 1 Com. B. 828. The defendant suggests that it is not liable, because the wall was built and maintained solely for the public use, and with the sole view to the general benefit and under the requirement of general laws; and that the case cannot be distinguished in principle from the line of cases beginning with Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332, and ending with Howard v. Worcester, 153 Mass. 426; 25 Am. St. Rep. 651. We are not aware, however, that it has ever been held that a private nuisance to property can be justified or excused on that ground. The verdict shows a continuous occupation of the plaintiff's land by the encroachment of the defendant's wall. The question of negligence in the building of the wall is not material. The erection was completed, and was accepted by the defendant, and is now in the defendant's sole charge; and if it is a nuisance, the defendant is responsible: Staple v. Spring, 10 Mass. 72, 74; Nichols v. Boston, 98 Mass. 39; 93 Am. Dec. 132. Such an occupation of the plaintiff's land cannot be excused, for the reasons assigned. A city cannot enlarge its schoolgrounds by taking in the land of an adjoining owner by means of a wall or fence. The public use and the general benefit will not justify such a nuisance to the property of another. If more land is needed, it must be taken in the regular way, and compensation paid, but if, by the action of the elements or otherwise, without the plaintiff's fault, the defendant's wall comes upon the plaintiff's land and continues there, it becomes a nuisance for which the defendant is responsible; and so are the authorities: Gorham v. Gross, 125 Mass. 232, 239; 28 Am. Rep. 224; Khron v. Brock, 144 Mass. 516; Eastman v. Meredith, 36 N. H. 284, 296; 72 Am. Dec. 302; Hay v. Cohoes Co., 2 N. Y. 159; 51 Am. Dec. 279; Tremain v. Cohoes Co., 2 N. Y. 163; 51 Am. Dec. 284; Weet v. Brockport, 16 N. Y. 161, 172, note; St. Peter v. Denison, 58 N. Y. 416, 421; 17 Am. Rep.

258; Mayor etc. of Cumberland v. Willison, 50 Md. 138; 33 Am. Rep. 304; Harper v. Milwaukee, 30 Wis. 365; Pumpelly v. Green Bay Co., 13 Wall. 166, 181; Dillon on Municipal Corporations, sec. 985.

The case is distinguishable from Middlesex Co. v. McCue, 149 Mass. 103, 14 Am. St. Rep. 402, where soil from the defendant's land upon a hillside was washed into the plaintiff's mill-pond by the rains, when the defendant had built no artificial structure, and had done nothing more than to cultivate his land in the ordinary way.

Exceptions overruled.

MUNICIPAL CORPORATIONS-LIABILITY FOR NUISANCE.

A city is liable

in damages for an improperly constructed privy-well on its school property, which creates a nuisance to the adjoining owners: Briegel v. Philadelphia, 135 Pa. St. 451; 20 Am. St. Rep. 885, and note. A city is liable for nuisance in keeping a dump-yard in such a condition as to be a nuisance to adjoining owners: Fort Worth v. Crawford, 74 Tex. 404; 15 Am. St. Rep. 840, and extended note discussing the liability of a municipal corporation for creating and maintaining nuisances.

FRANKLIN V. FRANKLIN.

[154 MASSACHUSETTS, 515.]

MARRIAGE - VALIDITY — AGREEMENT TO LIVE APART.—The validity of marriage regularly solemnized is not affected by a preliminary or collateral agreement of the parties not to live together. MARRIAGE-VALIDITY - COITION.

When a marriage is regularly solemnized, its consummation by coition between the parties is not necessary to its validity.

DIVORCE

DIVORCE AGREEMENT TO LIVE APART - ADULTERY.-The fact that husband and wife live apart by mutual agreement is no bar to a suit for divorce brought by either against the other on the ground of adultery. RESIDENCE-JURISDICTION. When the husband has resided in the state for the statutory period of time before bringing his action for divorce, the court has jurisdiction, although the parties have never lived together as husband and wife within the state where the action is brought.

ACTION for divorce on the ground of adultery. Plaintiff, Hugh Franklin, had sexual intercourse with the defendant, Delia M. Franklin, before his marriage to her. He then married her in regular form. The parties had a preliminary agreement between themselves not to live together as husband and wife, and after the marriage they lived separate and apart. The wife, Delia M. Franklin, committed adultery, as

charged in the libel for divorce. This libel was dismissed, and plaintiff excepted.

W. S. B. Hopkins and F. B. Smith, for the plaintiff.

KNOWLTON, J. The libelant and libelee became husband and wife by virtue of a lawful marriage. The agreement that they would not live together had no effect upon the marriage contract entered into in regular form in the presence of a magistrate or minister authorized to solemnize marriages. It is against the policy of the law that the validity of a contract of marriage, or its effect upon the status of the parties, should be in any way affected by their preliminary or collateral agreements: Barnett v. Kimmell, 35 Pa. St. 13; Harrod v. Harrod, 1 Kay & J. 4, 16.

The consummation of a marriage by coition is not necessary to its validity. The status of the parties is fixed in law when the marriage contract is entered into in the manner prescribed by the statutes in relation to the solemnization of marriages: Eaton v. Eaton, 122 Mass. 276; Jackson v. Winne, 7 Wend. 47; 22 Am. Dec. 563; Dumaresly v. Fishly, 3 A. K. Marsh. 368; Patrick v. Patrick, 3 Phillim. 496; Dalrymple v. Dalrymple, 2 Hagg. Const. 54.

The libelant is not guilty of such a marital wrong as will prevent him from obtaining a divorce on the ground of his wife's adultery. The parties lived apart by mutual consent, and, on the facts reported, neither could have obtained a divorce from the other on the ground of desertion. In such a separation there was no desertion within the meaning of the word in the statutes in relation to divorce: Lea v. Lea, 8 Allen, 418, 419; Thompson v. Thompson, 1 Swab. & T. 231; Cooper v. Cooper, 17 Mich. 205; 97 Am. Dec. 182. Living apart by agreement is no bar to a suit for divorce brought by either against the other on the ground of adultery. A voluntary separation is not a license to commit adultery; and it has uniformly been held that in case of adultery under such circumstances, the innocent party may have a remedy against the other in a suit for a divorce: Morrall v. Morrall, L. R. 6 P. D. 98; Beeby v. Beeby, 1 Hagg. Const. 142, note; Mortimer v. Mortimer, 3 Hagg. Const. 310; J. G. v. H. G., 33 Md. 401; 3 Am. Rep. 183; Anderson v. Anderson, 1 Edw. Ch. 380.

The court has jurisdiction, notwithstanding that the parties have never lived together as husband and wife within this commonwealth. The continuous residence of the libelant in