65 Ga. 649; 1895, St. John's, etc., Co. v. Munger, 106 Mich. 90; 1897, Tradesman's Nat'l Bank v. Looney, 99 Tenn. 278, 38 L. R. A. 837.

See, also, Boone, § 111; Beach, §§ 109, 163; Clark, § 101; Cook, §§ 136–170; Elliott, $$ 369-376; Morawetz, §§ 94-117; Taylor, §§ 103, 523-26; II Thompson, §§ 1360-1506; VII Thompson, §§ 8635-40.

Sec. 126. Mistake.

ROCKFORD, ROCK ISLAND AND ST. LOUIS R. CO. v. SHUNICK.1 1872. IN THE Supreme Court OF ILLINOIS. 65 Ill. Rep. 223-230.

MR. JUSTICE MCALLISTER. This was a proceeding instituted by appellant to condemn the lands of the appellee for the uses of a railroad. The land was situated in the township of Spring Grove, Warren county, and this appeal is from the judgment of the circuit court of that county in favor of appellee for compensation and damages on account of land taken and damaged.

To defeat appellee's right to compensation and damages, appellant introduced in evidence on the trial a certain instrument in writing, to which appellant was only a beneficial party, if any, purporting to have been executed by fifty-seven persons, including the appellee, and embracing two distinct subjects: (1) That of conditional subscription to the stock of appellant's corporation. (2) That of securing to appellant the right of way through said township.

The part of the instrument relating to subscription has no relevancy whatever to this controversy. But it is claimed by appellant's counsel that the other part of the supposed agreement cut off appellee's entire claim for either compensation or damages, and this is urged upon the ground of estoppel in pais.

The terms of this part of the agreement are in substance: That in order that the right of way might be made secure to said company, free of all charge and expense, and that the company might not be delayed in the construction of its line through said township, in consideration of one dollar to the undersigned paid, the receipt thereof acknowledged, they, the undersigned, jointly and severally agree to secure to the company, free of charge and expense to the same, the right of way on, over, and across the lands in said township, such right of way to include a strip of land one hundred feet in width, to be described as a strip of land fifty feet in width on each side of the center line of the established survey of said railroad, on, over, and across the lands in said township of Spring Grove.

The appellant's road was so located as to run through appellee's orchard and a part of his dwelling-house. Appellee, as appears, without controversy, is an unlettered man, being unable to either read or write. While at work in his field he was approached by a man 1 1 Only so much of the report is given as relates to the single point.

35-WIL. CASES.

of the name of Holloway with this paper. Holloway knew that the man was unlettered. He did not read the paper to him, and stated only that part which related to the subscription. He not only did not read or state that part of the instrument relating to the right of way, but assured appellee that he could obtain compensation for his land if taken. Holloway testifies that he signed appellee's name to the paper by his direction. From this fact appellant's counsel insist that Holloway was appellee's agent, and that being so, appellee could not avail himself of the misrepresentations of his own agent to avoid the instrument. On this ground the court below made an indefinite exclusion of the evidence showing the circumstances under which the paper was executed, but refused to give an instruction asked by appellant directing the jury to disregard it, and appellant now complains of such refusal. Holloway does not state when or where he signed appellee's name; but only that he did it by his direction. It must have been done then and there in the presence of appellee, the latter merely using Holloway's hand, as it were, to write his own name, or at some other time and place, in the absence of appellee, Holloway acting in that behalf upon an alleged authority to make a contract for appellee. If he so acted in executing it, and the instrument itself amount to a contract with appellant, it was one virtually for the sale of an interest in land, and the authority to execute it as agent of appellee should have been in writing. If the name was signed by Holloway in appellee's presence and at his request, then the only reason which could be urged why it was not within the statute of frauds requiring the authority of the agent to be in writing, would be that appellee merely employed the hand of Holloway to write his name, and that in such case the doctrine of agency in its legal sense would not apply. But assuming that to be the case, would anybody be heard to contend that although Holloway was not an agent in such sense as would require his authority to be in writing, yet he must be regarded as one to the extent of precluding appellee from setting up his misrepresentation for the purpose of avoiding the instrument in the hands of appellant? We think not. Such a rule would snatch the shield of law from the wronged and bestow it upon the wrong-doer; would take it from the unlettered, who need it most, and give it to those against whom it ought to be used. The appellant could not seek to take the fruits of the contract without adopting the means by which it was obtained. Besides, if the execution of the instrument was obtained in the manner disclosed by the evidence, it was void ab initio. It is laid down in Pigot's case, 11 Rep. 27, that if three distinct bonds are written upon one piece of parchment, and one of them only is read to the obligor, and he, being a man not lettered, seals and delivers this deed, it is good for that which was read, and ab initio void for the others; and it is further said, "that every deed ought to have writing, sealing and delivering, and when anything shall pass from them who had not understanding but by hearing only, it ought to be read also; and it is true that he who is not lettered is reputed in law as he who can not see, but hear only, and all his understanding is by hearing; and so a

man who is lettered and can not see, is, as to this purpose, taken in law as a man not lettered; and therefore if a man is lettered and is blind, if the deed is read to him in any other manner, he shall avoid the deed, because all his understanding in such case is by hearing." There is nothing in the evidence upon which to predicate negligence on the part of the appellee. The mind of the signer did not accompany the signature, and the agreement in the particular in question, at least, was void. Leach v. Nichols, 55 Ill. 273.

We are of the opinion that the supposed agreement was not sufficient in any view to cut off appellee's right to compensation and damages; that substantial justice has been done and that the judgment should be affirmed.

Judgment affirmed.

Note. As to mistake of fact, generally, see: 1431, 2 Rolle's Abr. 28, 1. 5, 9 H. 6, 59b; 1506, Keilway's Reports, 70; 1584, Throughgood's Case, 2 Co. Rep. 9b, 1 And. 129, Moore 148; 1808, Putnam v. Sullivan, 4 Mass. 45; 1819, Taylor v. King, 6 Munf. (Va.) 358; 1829, Salem M. D. Co. v. Ropes, 9 Pick. (Mass.) 187, 19 Am. D. 363; 1858, Cunningham v. Edgefield, etc., R. Co., 2 Head (39 Tenn.) 23; 1858, Diman v. Providence, etc., R. Co., 5 R. I. 130; 1863, Swan v. North B. A. Co., 2 Hurls. & C. 175, 32 L. J. R. (N. S.) Exch. 273; 1868, Four Mile Valley R. Co. v. Bailey, 18 Ohio St. 208; 1869, Foster v. McKisson, L. R. 4 C. P. 704, 38 L. J. R. (N. S.) 310; 1870, Leach v. Nichols, 55 Ill. 273; 1871, County of Schuylkill v. Copley, 67 Pa. St. 386; 1871, Rovegno v. Defferari, 40 Cal. 459; 1873, Payson v. Withers, 5 Biss. 269; 1877, Gibson v. Pelkie, 37 Mich. 380; 1883, Shelton v. Ellis, 70 Ga. 297; 1885, Wood v. Boynton, 64 Wis. 265; 1887, Sherwood v. Walker, 66 Mich. 568; 1888, Hecht v. Batcheller, 147 Mass. 335; 1893, Brintnall v. Briggs, 87 Iowa 538; 1898, Keene v. Demelman, 172 Mass. 17; 1898, Deseret Nat'l Bank v. Burton, 17 Utah 43; 1898, Gaffney Mercantile Co. v. Hopkins, 21 Mont. 13; 1898, Rogers v. Pattie, 96 Va. 498; 1899, Hochstein v. Berghauser, 123 Cal. 681.

As to mistakes of law, see: 1822, Storrs v. Barker, 6 Johns. Ch. (N. Y.) 166, 10 Am. D. 316; 1828, Hunt v. Rousmaniere, 1 Pet. (26 U. S.) 1; 1838, Bank of U. S. v. Daniel, 12 Pet. (37 U. S.) 32; 1845, Trigg v. Read, 5 Humph. (Tenn.) 529, 42 Am. D. 447; 1858, New Albany & S. R. Co. v. Fields, 10 Ind. 187; 1860, Goodenow v. Ewer, 16 Cal. 461, 76 Am. D. 540; 1872, Bailey v. Hannibal, etc., R. Co., 17 Wall. (U. S.) 96; 1876, Selma, etc., R. Co. v. Anderson, 51 Miss. 829; 1895, Loftus v. Fischer, 106 Cal. 616; 1898, Deseret Nat'l Bank v. Burton, 17 Utah 43, 53 Pac. 215. See, also, Beach, § 105; Clark, $ 196; Cook, § 196; Morawetz, §97; Taylor, § 527; II Thompson, §§ 1379, 1393, 1719.

ARTICLE VI. PARTIES TO THE AGREEMENT.

Sec. 127. Infants.

FOSTER v. CHASE ET AL.

1896. IN THE UNITED STATES CIRCUIT COURT, DISTRICT of VerMONT. 75 Fed. Rep. 797.

This was a suit in equity by Edwin L. Foster against Henry Chase and others to recover an assessment upon the stock of a national bank.

WHEELER, District Judge. The defendant bought stock in the names of his minor children in the First National Bank of Silver City, N. M., of which the plaintiff is receiver, and this suit is brought for an assessment upon it made by the comptroller of the currency. The plaintiff claims that the defendant made himself liable for the assessment because of the incapacity of his children to take the stock and make themselves liable for it. He insists that they only are the shareholders, and liable, if any one is. Assent is necessary to becoming a shareholder, subject to this liability, in a national bank. Keyser v. Hitz, 133 U. S. 138, 10 Sup. Ct. 290. Minors do not seem to have anywhere the necessary legal capacity for that. The principles upon which this disability rests are elementary and universal. 1 Bl. Comm. 492; 2 Kent Comm. 233. In buying and paying for this stock, and having it placed on the books of the bank, the defendant acted for himself; in having it placed there in the name of his children, as with their assent, he assumed to act for them. As they could not themselves so assent as to be bound to the liabilities of a shareholder, they could not so authorize him to assent for them as to bind them. To the extent that they could not be bound he acted without legal authority, and bound only himself. Story Ag., § 280. This liability has been sought for defendant to be likened to that of married women becoming shareholders; but that has been incurred where, and because, the law of the place authorized them to become such. Keyser v. Hitz, supra; Bundy v. Cocke, 128 U. S. 185, 9 Sup. Ct. 242. No law confers that capacity upon infants, but the banking law seems to refer this liability to their estates in the hands of their guardians. Rev. Stat. U. S., § 5152.

Decree for plaintiff.

Note. Infants as shareholders. In the case of Foster v. Wilson, 75 Fed. Rep. 797, it was held that where the father of a minor had subscribed in the minor's name, the father remained liable upon an assessment made before the minor came of age, though suit for its collection was not begun till after he had become of age and assented to holding the stock. See, 1847, Cork, etc., R. v. Cazenove, 10 Q. B. 935; 1849, Newry, etc., R. v. Coombe, 3 Ex. 565; 1850, Northwestern R. Co. v. McMichael, 5 Ex. 114; 1852, Dublin, etc., R. Co. v. Black, 8 Ex. 181; 1868, Robinson v. Weeks, 56 Maine 102; 1868, Lumsden's Case, L. R. 4 Ch. 31; 1868, Hart's Case, L. R. 6 Eq. 512; 1869, Castello's Case, L. R. 8 Eq. Cas. 504; 1870, Mitchell's Case, L. R. 9 Eq. Cas. 363; 1870, Symon's Case, L. R. 5 Ch. App. 298; 1870, Weston's Case, L. R. 5 Ch. App. 614; 1870, Ebbett's Case, L. R. 5 Ch. App. 302; 1871, Baker's Case, L. R. 7 Ch. 115; 1872, Gooch's Case, L. R. 8 Ch. App. 266; 1876, Re Nassau Phos. Co., L. R. 2 Ch. D. 610; 1877, Indianapolis Chair Co. v. Wilcox, 59 Ind. 429; 1886, Crummey v. Mills, 40 Hun. (N. Y.) 370; 1886, Hamilton, etc., R. v. Townsend, 13 Ont. App. 534, 16 Am. & E. C. C. 645; 1889, Chicago, etc., Assn. v. Hunt, 127 Ill. 257; 1892, Re Globe Mut. Ben. Assn., 63 Hun. (N. Y.) 263; 1892, Re Laxon, etc., Co., 3 Ch. D. 555. See, also, 10 Am. and Eng. Ency., 634, n. 2; Beach, §§ 128, 138, 303; Clark, § 98; Cook, §§ 63, 250; Elliott, § 366; Morawetz, § 855; Taylor, §§ 95, 515 n., 586; I Thompson, § 1095; II Thompson, §§ 1238, 2307, 2493; III Thompson, §§ 3271-4; VII Thompson, §§ 8162, 8708; n. 18 Am. St. Rep. 615.

Sec. 128. Married women.

HAHNS & BROS'. APPEAL.1

15 Am. &

1886. IN THE SUPREME COURT OF PENNSYLVANIA.
Eng. Corp. Cas. 537, 18 Weekly Notes of Cases 294.

[Appeal by complainants from a decree of the common pleas court dismissing a bill in equity to charge defendant Arndt upon unpaid subscription to the stock of an iron company. The iron company being authorized to increase its capital stock, called for subscriptions upon the express condition that none were to be binding unless $175,000 were subscribed. This sum was subscribed, but $1,350 of it were by married women. Dr. Arndt had subscribed for twenty shares, but had paid nothing and attended no meetings.]

TRUNKEY, J.*** In this case no fraud is alleged. The subscriptions of the married women were carelessly accepted as valid by those who were active, but Mr. Arndt in no instance was an active party. It does not appear that he knew that the amount of the subscriptions of the married women was necessary to make up the requisite sum prior to the beginning of this suit. Married women can hold stock and transfer it, but the statute does not empower them to contract to pay for stock. Their subscriptions create no obligations on their part. As to them the contracts are void.

Appeals from the chancery court of Mobile.

There are four appeals embraced in this one record-all involve similar questions, are included in one cause of action, and are decided by one decree of the chancellor.

The bill was filed by the appellees as creditors, and sought to subject the stockholders of the Alabama Gold Life Insurance Company, an insolvent corporation that had made a general assignment, to a personal liability to the extent of the stock owned by them in said insolvent corporation. The answers, contentions and accompanying facts, as well as the effect of the decree rendered, are sufficiently shown in the opinion. The chancellor held in his decree that the complainants were entitled to the relief prayed for, and so ordered. 1Only so much as refers to the single point is given.

Only the part of the opinion relating to the one point is given.