Stedfast v. Nicoll.

eration of the situation of posthumous children I do not hesitate to conclude, that the posthumous son in the case before us was to be considered in esse at his father's death, so far as to be competent to take the remainder in tail; and, consequently, that the lessor of the plaintiff is entitled to

recover.

LEWIS, Ch. J. was also of the same opinion.

Judgment for the plaintiff.(b)(c)

(b) [Old note.] It appears from the decision of K. B. in Long v. Blackal, (7 Term Rep. 102,) and a note to that decision, (p. 103,) and from the opinions of the judges in 4 Vesey, jun. 241, 242. 322 to 325. 334, 335. and 342, that an infant en ventre sa mere is to be deemed existing, for the purpose of executory devises, and that such infants are considered, in all respects as in esse. Indeed, the lord chancellor (p. 342,) seems to consider the decision of the house of lords as a sound decision, and always acquiesced in, and that it was sanctioned by Lord Somers. (See also 11 Vesey, jun. 119, 120.)

(c) The law is now too well established to be shaken that an infant en ventre sa mere is for all purposes of construction to be regarded as a living child. Mr. Jarman, in his Treatise on Wills, (Perkins ed. 1845, vol. 2, p. 103, et seq.) observes: "This was finally established in the case of Doe v. Clarke, (2 H. B. 379) which was an ejectment directed by Lord Thurlow, in consequence of a difference of opinion between his Lordship and Sir Lloyd Kenyon, M. R., on the claim of a posthumous child under a gift to all the children of C. who should be living at the time of his death; his Lordship maintaining the competency, and his Honor the incompetency of the child en ventre sa mere to take as a "living" child. (Clarke v. Blake, 2 B. C. C. 321, [see Perkin's ed. 320, note (1) and cases cited,] overruling Pierson v. Garnett, 2 B. C. C. 47. Cooper v. Forbes, id. 63. Freemantle v. Freemantle, 1 Cox, 248.) The case of Clarke v. Blake, afterwards came before Lord Loughborough, (2 Ves. jun. 673,) on the equity reserved, and his Lordship, in conformity to the decision of the court of common pleas, held the posthumous child to be entitled. Indeed so completely is the point now set at rest, that the claim of a child en ventre sa mere under a bequest "to the child and children begotten and to be begotten on the body of A., who should be living at B.'s decease," was admitted sub silentio in the much discussed case of Mogg v. Mogg, (1 Mer. 654. See also Rawlins v. Rawlins, 2 Cox, 425.*) It being thus settled that children en ventre were entitled under the description of

• These cases demonstrate that the distinction laid down in Northey v. Strange, (1 P. W. 341,) between a devise to children generally, and to children living at a given period with reference to the admission of children en ventre, is unfounded; nor would it have been deemed worthy of remark, had not the case been cited by a recent writer, (1 Belt's Ves. sen. 113, Editor's note,) without an explicit denial of its authority.

Stedfast v Nicoll.

children living, the only doubt that remained, was whether they would be held to come under the description of children born; and that question also has been decided in the affirmative. (Trower v. Butis, I Sim. & Stu. 181. See also Whitelock v. Heddon, 1 Bos. & Pull. 243.) The result then is to read the words " living," and " born," as synonymous with procreated; and, to support a narrower signification of such terms, words pointedly expressive of an intention to employ them in a special and restricted sense, must be used. It should be observed, that in Bennett v. Honeywood, (Amb. 708,) Lord Apsley considered that the admission of children en ventre was confined to devises to children, and refused to let in such a child under a devise to relations. This decision does not appear to have been expressly overruled; but it is conceived that the present doctrine, and the principle upon which the late cases have proceeded, that a child en ventre sa mere is for all purposes a child in existence, and even born, conclusively negative any such distinction. (See also Fearne Cont. Rem. Eng. ed. 1844, vol. 1. p. 308, et seq.)

Thus, a posand by descent

As to the application of the doctrine to legacies, see, beside the foregoing authorities, Roper on Leg. Am. ed. 1848, vol. 1, p. 43, et seq and cases cited; 2 Williams on Exts. Am. ed. 1841, p. 797. et seq. and cases cited. Mr. Hilliard (Am. Law of Real Prop. 2d. ed. vol. 1 p. 521,) in commenting upon this rule remarks: "It is the established principle of American law, that a posthumous child shall take both by descent and express limitation, equally with others. (4 Kent, 248.) It was early held in New York; (Stedfast v. Nicoll, 3 John. Cas 18. Swift v. Duffield, 5 S. & R. 38. Marseilis v. Thalhimer, 2 Paige, 35. Dingley v. Dingley, 5 Mass. 535. Burke v. Wilder, 1 M'Cord's Cha. 551. Armistead v. Dangerfield, 3 Mun. 20. Aik. Dig. 94); that although 'the Statute of William is not in force in that State, having been expressly repealed; yet independently of this act, the English law is settled in favor of the claim of a posthumous child. On principles of natural justice, such child has the same rights with others. The civil law never makes a distinction, and the common law very rarely. thumous child takes a share under the statute of distributions, So, the birth of such child (with marriage) revokes a will. Independent of the Statute of William, the decision of the House of Lords, which was the determination of the highest tribunal of the English law, must be considered as prescribing the rule at common law; and inasmuch as the old technical rule, which requires a remainder to vest at the very instant when the preceding estate terminates, was founded on feudal reasons not now in force, this furnishes an additional ground for adhering to the later doctrine." Add to the authorities cited by him, Perway v. Powell, 2 Devereux & Battle, Eq. 312. Hall v. Hancock, 15 Pickering, 255. The Revised Statutes of New York 3d ed. vol. 2, p. 11, § 30, 31, provide, that where a future estate shall be limited to heirs or issue or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent. It is perhaps worthy of note that estates tail are abolished by statute in New York. (2 Rev. Stat. 3d ed. p. 9, § 3.)

Jones v. Caswell.

JONES against CASWELL, Survivor, &c.

The land of A. was advertised for sale by the sheriff on an execution against A., at the suit of B. C. who had purchased the land without knowing of the judgment and execution, agreed with B. who attended the sale, that if he would not bid against him he would pay B. the amount of his execution, and give him his note for the further sum of 150 dollars, and B. acceded to the terms and desisted from bidding.

In an action on the note against C., by the second endorsee, to whom it had been negotiated, after it became due and with a knowledge of the circumstances, under which it was given, it was held that the consideration of the note might be inquired into; and that the consideration being unconscientious, and against public policy, the note was void.

THIS was an action on seven promissory notes, made by the defendant and one Noble, to John Ward, who endorsed them in blank. They were dated the 9th March, 1798, and payable to Ward, or order, on the first of October following. The cause was tried at the Herkimer circuit, before Mr Justice Radcliff.

*Samuel Jones, the father of the plaintiff, had ob- [*30] tained a judgment and execution against one Egleston whose lands were advertised for sale in March, 1798. The lands had been previously sold, for a valuable consideration by Egleston to the defendant and Noble, but subsequently to the judgment, and without knowledge of it by them. Jones attended at the time of the proposed sale, and the defendant and Noble, in order to secure themselves, entered into negotiation with Jones, and to induce him to desist from bidding against them, offered to pay him the amount of the execution, and the further sum of 150 dollars, the amount of the notes in question. The terms were accepted, and Jones said, at the time, that he had a further debt against Egleston, and had been at considerable trouble and expense in obtaining the judgment. Jones did not bid, but the defendant and Noble purchased the land, at the sale, for the amount of the execution, which they paid VOL. III.

6

Jones v. Caswell.

to Jones and for the further sum of 150 dollars, John Ward, by agreement of the parties, gave his note to Jones, and the defendant and Noble gave the present notes to Ward, as a counter security to him. In April, 1798, Ward endorsed the present notes in blank to Jones, and the latter gave up Ward's notes in exchange. In May, 1799, the plaintiff obtained the notes from Jones, his father, knowing the consideration for which they were given, and the circumstances under which they were obtained.

The question reserved, upon these facts, was whether the consideration of the notes was valid, and the plaintiff entitled to recover. It was argued at the last term, by Griswold for the plaintiff, and

Gold, contra.

RADCLIFF, J. In this case several questions have been raised.

[*31]

1. *Whether there existed any consideration for the notes on which the action is brought, or whether the contract was a nudum pactum?

2. Whether the consideration was lawful?

3. Whether, if lawful in itself, an undue advantage was not taken of the defendant's situation, and the demand therefore unconscientious?

If any one of these points be decided in favor of the defendant, there is no doubt but the plaintiff ought to be af fected by it, for Ward, the person to whom the notes were originally given, was a nominal party only. Samuel Jones, the father of the plaintiff, was the real party; and the notes were received by the plaintiff from his father, when they were overdue, and with full notice of the consideration and the circumstances under which they were given. The plaintiff is, therefore, to be deemed as standing in the same light with the original payee of the notes.

As to the first question, I think the contract was not void, merely for the want of consideration. It is not essential that the consideration should import a certain gain or loss to either party. It is sufficient, if the party in whose favor the contract is made, foregoes some advantage or benefit, or parts

Jones v. Caswell.

with a right which he might otherwise exert. (a) (Pow. on Cont. 344. 3 Burr. 1672.) In the present case, Jones, the judgment creditor, had a right, in common with others, to bid at the intended sale of the property, and his bidding might probably have had a considerable influence on the sale. He agreed to relinquish this right, in consideration of the money secured by the notes. This was, at least, a principal part of the consideration, and, if not illegal, was sufficient to support the contract.

Whether the consideration was legal, is a question of considerable moment. It is important that sales at auction, and particularly on legal process, should be conducted with good faith, and without prejudice to any party. The forbearance of bidding was the leading, and, in [*32] reality, the only, consideration. It is true, Jones said

he had a farther debt against Egleston, and had been at considerable expense in obtaining this judgment. But those were not the claims for which the notes were given, and they were no encumbrance on the real estate of Egleston. If the defendant and Noble had sought relief in equity, they would have been entitled to a discharge, or an assignment of the judgment, on paying its amount; and Jones could not have tacked these demands. The notes being no claim on the property in the hands of the defundant and Noble, if they were extorted from them, at the moment of the sale, it was an undue advantage taken of their situation, and ought not to succeed. The forbearance of bidding

(a) Miller v. Drake, 1 Caines, 45. Powell v. Brown, 3 Johns. 100. Forster v. Fuller, 6 Mass. 58. Overstreet v. Phillips, 1 Litt. 123. Townley v. Sum rall, 2 Pet. 182. Lemester v. Burckhart, 2 Bibb, 30. Wooldridge v. Cates, 2 J. J. Marsh. 222. See also Lent v. Padelford, 10 Mass. 230. Train v. Gold, 5 Pick. 380. Seaman v. Seaman, 12 Wend. 381. Randle v. Harris, 6 Yerg. 508. Violett v. Patton, 5 Crauch, 142, 150. Cabot v. Haskins, 3 Pick. 83. See also Farron v. Turner, 2 Marsh. 496. Crocker v. Higgins, 7 Conn. 347. Vadakin v. Soper, 1 Aik. 287. Moseley v. Boush, 4 Raud. 392. Farmer v. Stewart, 2 N. Hamp. 97. Nicholson v. May, Wright, 660 Stebbins v. Smith, 4 Pick. 97. Hinman v. Moulton, 14 Johns. 466. Underhill v. Gibson, 2 N. Hamp. 352. Homes v. Dana, 12 Mass. 190. Chitty on Contracts, and auth. cited; Comyn on Contracts, and auth. cited.