the judgment; upon the latter occasion Marshall, C. J. delivered the opinion of the Court to the following effect:

"This action was grounded upon a note in writing, which was certainly intended by the defendants to give a credit to M'Pherson. They are bound by every principle of moral rectitude and good faith to fulfil those expectations which they thus raised, and which induced the plaintiff to part with his property. The evidence was clear that the credit was given upon the faith of the letter. Unless, therefore, there is some plain and positive rule of law against it, the action ought to be supported. In the case cited from Espinasse (Jordan v. Jordan, Espinasse, N. P. C. 105,) the rule is laid down too broadly. If compared with analogous cases, it will be found to be considerably modified. Thus if money be delivered by A. to B., to be paid over to C., although no promise is made by B. to C., yet C. may recover the money from B. by an action of assumpsit. If it be said that in such a case the law raises the facts, and if the facts do not imply an assumpsit, no action will lie, it may be answered, that in the present case there is an actual assumpsit to all the world, and any person who trusts in consequence of that promise has a right of action." I cannot help thinking, that in the English Courts the case would have been decided differently. For, 1. "We will become your security," is an expression which, of itself, rather imports a willingness to engage than an absolute engagement; and being addressed to M'Pherson, is a circumstance in corroboration of this construction. Assuming, therefore, the insufficiency of the letter, the case fails, because the other evidence which went to the extent of proving a promise to the plaintiffs was merely testimonial. 2. It rather appears that a Court of Equity is the proper court for a case of this kind, viewing the engagement as an assumpsit to all the world" through the medium of M'Pherson. Properly speaking, the assumpsit was, if to any one, to M'Pherson. In Tomlinson v. Gill, Ambler, 330, the defendant having promised a widow to supply the deficiency of her husband's assets for the payment of debts, Lord Hardwicke thought the engagement could only be made good in equity, for that it was not made to the creditors. In Gregory v. Williams, 3 Mer, 582, also, where the defendant promised Parker, the tenant of the plaintiff, to pay the plaintiff the rent due to him as Parker's landlord, and one objection to the suit was, that the parties ought to have gone to law and to have recovered as upon an undertaking in writing to pay the debt of another person, the Master of the Rolls said it might be a doubt whether the plaintiff could have

recovered at law upon this agreement, for the engagement is not made directly to Gregory the landlord. 3. The remark of Mr. Justice Gazelee, that the guarantie referred to in the text would enure to the benefit of those to whom it was delivered, scarcely supports the American decision, since it was made with reference to a guarantie not addressed at all; and which also, in its terms, was a complete engagement. 4. The counsel for the plaintiff in the American case evidently produced a considerable impression by comparing the defendant's letter to a letter of credit. But if money is advanced upon a letter of credit, the credit is given not to the bearer, who is the recipient of the money, but to the correspondent: it is money paid at the request and to the use of the correspondent; who, therefore, is not "a security" (surety) as the defendants imported to be, but solely debtor.'

But we are admonished to bring our remarks to a close; and, what we have already laid before the reader will be sufficient to give him a general idea of Mr. Theobald's work. From the nature of the subject it is obvious, that this writer must have been anticipated in many things by the Treatise on Mercantile Guarantees, by Mr. Fell, who has examined some points more minutely than our author; among which may be mentioned the great question raised in the cases of Wain v. Warlters, and Lyon v. Lamb. In the distribution of his matter, however, Mr. Theobald has shown greater care, following substantially the divisions of the subject adopted by Pothier, in chapter sixth, part second, of his work on Obligations; from which also our author took his several corollaries already mentioned. But it must be admitted, that the work might have been still farther improved in the distribution and selection of the materials. A work professing to be systematic ought not to tack together under the comprehensive head of Miscellaneous Points' (p. 22,) various matters which with a little more time and labor might have been classed under an appropriate division or subdivision of the subject. But notwithstanding any minor blemishes of this kind, we consider the work as a useful addition to our stock of professional works.

ART. VIII.-INFANTS' DEEDS-VOID OR VOIDABLE.

IN the English Law Journal for 1804, p. 145, there is a learned dissertation on the second point in Zouch v. Parsons, 3 Burr. 1794. The writer says, 'The doctrine advanced by his Lordship (Lord Mansfield) in that case is, that it is the solemnity of the instrument, and not the semblance of benefit to the infant, which renders an infant's conveyance voidable only; and, secondly, that there is no difference in this respect between feoffments and grants and other deeds whose nature it is to convey an interest, and consequently that the grant, lease, and release, &c. of an infant, where there is no semblance of benefit, is not void in point of operation but voidable only. Now (says the writer) on the other side it will be contended that the genuine conclusion which the authorities in the books sanction is that it is the semblance of benefit to the infant which renders his conveyance voidable only; and that the only exception to this is the case of a feoffment made by an infant in person, and therefore that the grant, lease, and release, &c. of an infant, where there is no semblance of benefit, are, in point of operation, totally void.'

The writer insists that the passage cited by Lord Mansfield from Perkins, s. 12, has a reverse meaning from that adopted by his Lordship: that Perkins did not, by the words gifts, grants, or deeds, mean the instrument of conveyance, but the act itself— because, from his speaking of gifts, grants, and deeds, by matter in deeds or in writing' it is clear that he alludes to an act which may be either in writing or not, and consequently he cannot mean a conveyance, nor be taking a distinction between the solemnity or want of solemnity in the instrument which records the transaction. The distinction taken by Perkins in the words, which do not take effect by delivery of the infant's hand, is, that where the substance or thing itself, as the land in case of livery of the seisin by the infant in person, is delivered by the hand of the infant, such act is voidable only; but where the substance contracted for or thing itself, is not, either in point of fact or by the particular instrument of conveyance, capable of manual transmission, as where there is a grant of rent or any other incorporeal hereditament, or where there

is a conveyance by lease and release, or other instrument where livery is not made, that in such cases the act is totally void. And he cites, in confirmation of this view, Perk. s. 13; Sheph. Touch. 232, 233; Finch's Law, 102; Moore, 105, point 7th; 26 Hen. 8, 2; Brook. 600, pl. 1. And he further contends that there is no difference between powers of attorney and other deeds, and relies on Perk. s. 13; 3 Mod. 296; 1 Ld. Ray. 213; Finch. Law, 102.

As to the case cited by Lord Mansfield from Brook. Dum fuit infra ætatem, pl. 1, from 46 Edw. 3, 34, he contends that the meaning is not that the deed was not void in operation, but that the delivery was not void - for a deed may be void in operation and yet the delivery good. That the true meaning of Brook. was that the deed was not void so as to enable the party to plead non est factum, but that he must plead the special matter, and so avoid it. But that it merely applied to the mode of pleading, in this and other like cases where a distinction is taken between void and voidable deeds. and so it was considered in Whelpdale's case, 5 Co. 119; 1 H. 7, 15; Thompson v. Leach, 3 Mod. 296; Ld. Ray. 313; Perk. s. 13.

As to the citation of Lord Mansfield from Litt. 259, it is contended that it is nothing to the purpose-as Littleton was not alluding to any distinction between void and voidableand his language applies equally to all cases. And this is confirmed by the opinion of Littleton himself in 18 Edw. 4, 3, that all the deeds of infants are not merely voidable; but at least some are void. The citation of Lord Mansfield from 2 Inst. 673, looks against him.

As to the distinction of Lord Mansfield between the deeds of infants and feme coverts, that the former are voidable, the latter void, it is contended that admitting the distinction, it is grounded on this, that a feme covert hath no capacity at all to grant, and to every grant there must be a capable grantor and grantee; her deed in the eye of the law is no deed. But in case of an infant, there is a grantor and grantee capable to make a deed; but the grant becomes ineffectual from the latent defect of infancy; which should be pleaded in order to avoid a deed good in point of form. And 1 Bl. Com. 442; Bro. Faits. 23, are cited.

As to Perk. 154, cited by Lord Mansfield to show that if a first delivery take effect the second is void; as in case an infant

make a deed and deliver it again as his deed this second delivery is void; but it is otherwise in case of a feme covert's deed it is contended that it is by no means clear law, that there is any such distinction between the delivery of a deed by an infant and a feme covert, although the same doctrine is advanced in Shepp. Touch. 60, who cites Perkins and 2 Rolle 26, pl. 2, who cites no authority and Perkins himself is without any authority, for the cases cited by him do not go to the deeds of feme coverts. And in 1 H. 6, 4, and 1 H. 7, 14, there are cases in which it is held, that there is the same law in the case of a feme covert as of an infant with respect to a second delivery of a deed.

6

But admitting the distinction, the material point to be considered is, in what sense the deed may be said to be voidable only and not void. It is contended that it is, because in point of form it is a deed, and therefore non est factum cannot be pleaded, 5 Co. 119; but although non est factum cannot be pleaded, because it is good in point of form, yet it is void ab initio, as to all operation. The words used by Perkins, ' if the first delivery take effect,' are important, for in case of an infant the first delivery does take effect, because there is a person to deliver; but in case of a feme covert, it does not take effect, because she is civiliter mortua. And that this is the true sense is confirmed by Sheph. Touch. 60, who cites 5 Co. 119, and 2 Rolle. 26, pl. 8, pl. 10. See also as to this point Bro. Traverse sans ceo. 59, 1 H. 7, 14, Bro. Dett. 135, 8 H. 6, 7, per Martin, 8 H. 6, 22, per Godred, 1 H. 6, 4, 1 H. 7, 14. Admitting, therefore, that whether the deed is void or only voidable doth depend upon the delivery, (which the writer says he admits without hesitation), he contends that whether that deed hath any operation or not, depends not upon the delivery, but upon the matter and contents, whether for the benefit of the infant or not.

As to Lord Mansfield's assertion that there is no sufficient authority to support the position, that leases made by an infant by deed, upon which no rent is reserved, are absolutely void, it is contended that Humphreyston's case, 2 Leo. 216, S. C. Moore, 103, is directly in point. So Lloyd v. Gregory, W. Jones, 405, and 2 Cro. 502, 2 Rolle. Faits, pl. 6, Lett. I., Thompson v. Leach, 3 Mod. 296, Raym. 313, affirmed in Dom Pr. Show.