of law, that of the husband only, but it was made with reference to a subject-matter in which the wife was interested. The defendant's agreement is in fact made with the husband and wife; the interest of the wife formed a substratum, upon which a right to join in the action was properly founded. The decision in Richards v. Richards is approved of in Gaters v. Madeley (q), which is, I believe, the last case on the subject. In that case a promissory note was given to a married woman during the coverture. She survived her husband, and having afterwards herself died before the note was paid, it was held that her executor was entitled to maintain an action upon it. The rule is very clearly laid down in the judgment of Baron Parke. "This," said his Lordship, "is an action on a promissory note-an instrument on which no one can sue unless he was originally party to it, or has become entitled to it under one who was. A promissory note is not a personal chattel in possession, but is a chose in action of a peculiar nature. It has, indeed, been made by statute assignable and transferable according to the custom of merchants, like a bill of exchange. Still it is a chose in action, and nothing more. When a chose in action, such as a bond or note, is given to a feme covert, the husband may elect to let his wife have the benefit of it; or, if he thinks proper, he may take it himself: and if

(9) 6 M. & W. 423. See Bendix v. Wakeman, 12 M. &

W. 97; Guyard v. Sutton, 3
C. B. 153.

in this case the husband had in his lifetime brought
an action upon this note in his own name, that
would have amounted to an election to take it him-
self, and to an expression of dissent on his part to
his wife's having any interest in it. On the other
hand, he may, if he pleases, leave it as it is; and in
that case, the remedy on it survives to the wife :
or he
may adopt another course, and join her name
with his own; and in that case, if he should die
after judgment, the wife would be entitled to the
benefit of the note, as the judgment would survive
to her."

Here, you see, all the possible cases are put, and the consequence of each pointed out, which makes this judgment a very useful one for the purpose of practical reference.

sufficient

possession.

Though it is settled law that a promissory note What is given to the wife during coverture is a chose in reduction into action, and not a personal chattel vested in the husband, and that upon his death the right to sue on it survives to the widow unless the husband has reduced it into possession, it is still a point of nicety and difficulty to determine what is a reducing into possession by the husband, such as to deprive the wife of her subsequent remedy. In the recent case of Hart v. Stephens (r), where the adminstrator of a deceased widow sued on a note giving her dum sola; the Court held that the husband of the

(r) 6 Q. B. 937.

deceased, by receiving interest on the note during the life of the wife, had not reduced it into possession; and it seems to have been assumed that receiving money on it, or bringing an action for it, are alone sufficient reductions into possession-a doctrine apparently sanctioned by that of Lord Kenyon, C. J., in Milner v. Milnes (s), and by Lord Hardwicke in Garforth v. Bradley (t), who puts it on the ground of dissent to the interest remaining in the wife thereby evidenced on the part of the husband. In the still later case of Scarpellini v. Atcheson (u), a case which presents some noticeable features, the plaintiff was a widow, and the payee of a promissory note made to her during coverture by the defendant. The husband caused the wife, as the plea stated, "in his marital right," to endorse to F., who after his death delivered it to the wife, who then brought this action upon it. The Court embodied in the judgment the doctrine we have just stated, and held that the facts as stated did not amount to a reduction into possession by the husband.

Having thus disposed of the consideration, arising on contracts made with or by infants and married women, I will postpone the conclusion of this branch of the subject till the next Lecture.

(s) 3 T. R. 627.

(t) 2 Ves. 675; Michelmore v. Mudge, 29 L. J. (Ch.) 609 ;

Hamilton v. Mills, 29 Beav. 193.

(u) 7 Q. B. 864.

323

LECTURE IX.

PARTIES TO

TOXICATED

PERSONS.-ALIENS.-CORPORATIONS.

-PUBLIC COMPANIES. THE MODE IN WHICH
COMPETENT PERSONS CONTRACT.-AGENTS.-PART-

NERS.

PURSUING the inquiry upon which I entered in the last Lecture with regard to the competency of the parties to Contracts, and having disposed of the cases of Infancy and Coverture, the next in order is Insane that of persons of non-sane mind, whose disability arises, not, as in the two former cases, from a positive rule of law, but from the very nature of their disorder itself.

In the earliest ages of our law the rule on this subject appears to have been, that a person deprived of the use of that reason which is the instrument, if I may so say, with which men contract, shall not be bound, to his own injury, by contracts made while in such a situation. Thus, in Fitzherbert's Natura Brevium, 202, it is laid down, that a person who had enfeoffed another of his land while non compos might, on recovering his intellect, avoid the feoffment.

Persons.

Where fair contracts with a lunatic are held valid.

Subsequently, opinions seem not to have been very well settled (a). But it is now clearly held that the lunacy of one of the contracting parties may be shown by himself if sued upon a contract entered into while he was in that condition. However, it would not be for the lunatic's own benefit to prohibit him absolutely from binding himself by any contract whatever. Such a prohibition might prevent him from obtaining credit for the ordinary necessaries of life; and there are many modern cases in which contracts evidently of a fair and reasonable description entered into with a lunatic have been held binding on him, and have been enforced. In the case of Baxter v. Earl of Portsmouth (b), an action was brought against the Earl of Portsmouth for the hire of several carriages. It was proved that the carriages were suitable to his rank and fortune, and that the price charged for them was a fair and reasonable one; but on the other hand it appeared that an inquisition had issued out of Chancery under which the Earl was found to have been insane for a period long anterior to the time at which the carriages in question were supplied to him. The L. C. J. Abbott, before whom the case was tried, directed the jury, that, as the articles hired were suitable to the station and fortune of the defendant, and as the plaintiffs, at the time of making the contract, had no reason to

(a) 2 Bla. Com. 291; Yates v. Boen, Stra. 1104; Faulder

v. Silk, 3 Camp. 126.

(b) 5 B. & C. 170.