ing made absolute by affirmance, or void by disaffirmance, on his arriving at age; in other words, infancy confers a privilege rather than imposes a disability. Hence the disaffirmance of a contract by an infant, in the exercise of a right similar to that of rescission in the case of an adult, the ground being minority, independent of questions of fraud or mistake. But in all else the general doctrine of rescission is departed from no further than is necessary to preserve the grounds upon which the privilege is allowed; and is governed by the maxim that infancy is a shield and not a sword. He is not in all cases, as is an adult, required to restore the opposite party to his former condition; for if he has lost or squandered the property received by him in the transaction that he rescinds, and so is unable to restore it, he may still disaffirm the contract and recover back the consideration paid by him without making restitution; for if it were otherwise, his privilege would be of little avail as shield against the inexperience and improvidence of yout. But when the property rescinded by him from the adult is in his possession, or under his control, to permit him to rescind, without returning it or offering to do so, would be to permit him to use his privilege as a sword, rather than as a shield. This view is supported, not only by reason, but by the greater weight of authority. It was recognized and applied by this court in Cresinger v. Welch, 15 Ohio, 156, decided in 1846. The following is the language used by Mr, Tyler on the subject: "If the contract has been executed by the adult, and the infant has the property or consideration received at the time he attains full age, and he then repudiates the transaction, he must return such property or consideration or its equivalent to the adult party. If however the infant has wasted or squandered the property or consideration received during infancy, and on coming of age repudiates the transaction, the adult party is remediless." He then adds that "there are expressions of judges and text writers against the latter proposition, but," he says, "the weight of authority is in harmony with it, and is decidedly in accord with the general principles of law for the protection of infants." Tyler Inf. (2d ed.) 80, and cases cited by the author. See also the case of Price v. Furman, 27 Vt. 268, and the notes thereto of Mr. Ewell, in his Leading Cases on Infancy & Coverture, 119. After an exhaustive review of the cases, this author says: "The true doctrine, and the one supported by the weight of authority (at least in the United States), would seem to be that when an infaut disaffirms his executed contract, after arriving at age, and seeks a recovery of the consideration moving from him, and where the specific consideration received by him remains in his hands, in specie at the time of disaffirmance, and is capable of return, it must be returned by him; but if he has during infancy wasted, sold or otherwise disposed of, or ceased to possess the consideration, and has none of it in his hands in kind on arriving at majority, he is not liable therefor, and may disaffirm without tendering or accounting for such consideration." This statement of the law, supported, as it is, not only by the greater weight of authority, but also of reason, meets with our full approval. There is however much conflict in the decisions of the different States; greater perhaps than upon any other question connected with the law of infancy (Metc. Cont. 76); but we deem it unnecessary to attempt to review or discuss them, for the very good reason that it has been done with thoroughness and ability by the authors just referred to. See also the notes of Mr. Ewell to the recent case of Adams v. Beall, decided by the Maryland Court of Appeals, 26 Am. Law Reg. 710. We have been cited by counsel for the defendant below to a number of the previous decisions of this court, supposed to affect

the right of the plaintiff to recover; but a careful examination will disclose that such is not the case. Ohio Sup. Ct., Jan. 10, 1888. Lemon v. Beeman. Opinion by Minshall, J.

NEGLIGENCE

PRESUMPTION. - Between the

ages of seven and fourteen a child is prima facie incapable of being guilty of contributory negligence; hence, in an action to recover damages for injury done to such a child, a demurer to the complaint, on the ground that it does not allege that the child was free from negligence, is bad. Ala. Sup. Ct., Feb. 2, 1888. Pratt Coal & Iron Co. v. Brawley. Opinion by Clopton, J.

INSURANCE-SOCIETIES-STATUS OF.-A corporation organized to provide for its members during life, and their families after death, provided in its constitution and by-laws for the payment to the member at death of a certain sum in consideration of the payment of a membership fee and certain future assessments. Every candidate was obliged to be examined by a physician and found to be in good health before becoming a member. The officers and agents of the corporation received good salaries. Held, that the organization was not a corporation for benevolent purposes, but was an insurance company, and subject to all the provisions relating to such companies. This contract has all the features of a life insurance policy. It is a contract by which one party, for a consideration, promises to make a eertain payment of money upon the death of the other; and it is well settled that whatever may be the terms of payment of the consideration by the assured, or the mode of estimating or securing payment of the iusurance money, it is still a contract of insurance, no matter by what name it may be called. Com. v. Wetherbee, 105 Mass. 149; State v. Benevolent Ass'n, 18 Neb. 281. It is in effect the ordinary contract made by insurance companies with the assured, differing from it in no important respect. The terms of payment are somewhat different, the amount being greater or less according as the member lives long or dies early; still it is a payment to be made at his death. The assured cannot be forced by suit to pay future premiums; but he loses his membership if he defaults in this respect. It is a common provision in insurance policies that if the assured fails to perform some of the conditions of this contract, that his policy may be cancelled, and the premiums paid shall in that event become forfeited to the company. The provision that membership may be forfeited for non-payment of assessments is in effect the same thing; for the assessments serve the purposes of premiums in an ordinary life policy. The examination too which precedes admission into membership is the same as that which occurs before the issuance of a policy, and is intended to secure the society against fraud or imposition; to prevent an unsound person from becoming insured, and to reduce its risks of loss and increase its chances of profit. It matters not that the member was entitled to benefits in case of sickness. Insurance can be effected upon the health as well as the life of an individual. These benefits too are incidental to the main object of the institution, and the certificates issued by it are none the less policies of insurance, though the insured derive sums of money from the contract other than those for which he has specially bargained. We are of opinion therefore that appellants constituted an insurance company within the spirit and true meaning of that term, and not an association conducted in the interest of benevolence, as contemplated by title 20 of our Revised Statutes. This question has been frequently before the courts of other States, and so far as we can ascertain has been universally decided in accordance with the opinion above expressed. In Bolton v. Bol

ton, 73 Me. 299, the subject underwent thorough investigation, and an institution, with purposes similar to the present, was held to be a mutual life insurance company. In State v. Critchett, 32 N. W. Rep. 787, the Supreme Court of Minnesota held a company formed by married men for the purpose of endowing the wife of each member upon marriage with a sum of money equal to the then number of members, not to be a benevolent association. The members paid quid pro quo, and did not receive their money as an act of benevolence on the part of their fellow members. In State v. Benevolent Ass'n, supra, a society with a constitu tion like the present, was held an insurance company within the meaning of a statute similar to our own. The benefits received are not gratuitous. They are due to the member on account of the money he pays into the society. It takes the risk of his continued existence and good health. If it be benevolent to pay one money under such circumstances, then every mutual life insurance company is acting in a benevolent manner toward the family of an insured member when it pays the policy it had issued thereon for a moneyed consideration. It matters not what name the association may assume. The law looks to the real objects of the body, and not to the name indicative of benevolence which it may have assumed. These views will be found supported by the following authorities, in addition to those already cited: May Ins., § 550; State v. Citizens' Ass'n, 6 Mo. App. 163; State v. Merchants', etc., Ass'n, 72 Mo. 146; People v. Wilson, 46 N. Y. 477; State v. Life Ass'n, 38 Ohio St. 281. In some of the States these societies have been exempted by special statute from the requirements exacted of other insurance companies. In Illinois a special statute which provides that "associations intended to benefit widows, orphans, heirs and devisees of deceased members, and when no annual dues are required, and where the members receive no money or profit or otherwise, shall not be deemed insurance companies." Hence it is of course held in that State that a society with the fea tures prescribed, and lacking in those excepted by the statute, is not an insurance company. It is admitted that without such a statute they would be included in the general sense of that term. League v. People, 90 Ill. 166. In Ohio a statute declares that such associations shall in no manner be subject to the laws of the State relating to life insurance companies. Hence the decisions of that State are inapplicable to the present case. State v. Protection Ass'n, 26 Ohio St. 19. The decision in Com. v. Aid Ass'n, 94 Penn. St. 481, is expressly founded upon a statute of similar character. And we think this will be found to hold true as to all cases, which hold such societies exempt from statutory provisions as to other insurance companies. See Supreme Council v. Fairman, 62 How. Pr. 386; State v. Bankers' Ass'n, 23 Kaus. 499. Tex. Sup. Ct., Jan. 31, 1888. Farmer v. State. Opinion by Willie, C. J.

NEGOTIABLE INSTRUMENTS ACCEPTANCE - WHAT CONSTITUTES.-The drawee of an order, on presentment and demand, after taking time to consider, told the payee," I think there will be money enough to pay you, and it will be all right, and I will pay it." On another occasion the payee's agent asked the drawee about the order, and he said he "would not pay it that afternoon; but tell Short (the payee) it is all right, and I will pay it;" and the agent so informed payee. Held, that these words, though not in writing, in absence of a statute requiring written acceptances, constituted a valid acceptance. By the acceptance of a bill of exchange is meant the act or declaration by which the drawee therein named evinces makes manifest-his assent and agreement to comply with, and be bound by the request and order contained in the bill directed to him, according

to its tenor, if the acceptance be absolute. It is in substance an agreement to pay the sum of money specified in the bill as therein directed. I Chit. Bills, 281; Story Bills, § 238; 1 Pars. Notes, 281. No particular words, or form of words, or manner are necessary to a valid acceptance, but it should generally be in writing, because this is orderly, promotes the con venience of business transactions, renders them more certain, and facilitates the proof of acceptance. Writing however is not essential in the absence of statutory regulation requiring it. The acceptance may be verbal or in writing. Either method is valid, but it must appear by express words or reasonable implication. The intention of the acceptor to pay the bill must clearly appear, in whatever manner evinced. Usually the donee makes his acceptance by writing his name across the face of the bill, and just over it the word "Accepted; " but it may be made by any word or phraseology implying substantially the same thing. Any words used by the drawee to the drawer or holder, or the agent of either, which by reasonable intendment signify that he honors the bill (will pay it) will amount to an acceptance. And though he may not, on presentment of the bill, accept at once, if he afterward does so, this will be sufficient to bind him, although the holder would have the right to insist upon prompt acceptance according to the terms of the bill. N. C. Sup. Ct., Feb. 21, 1888. Short v. Blount. Opinion by Merrimon, J.

NEW TRIAL MISCONDUCT OF JURY DRINKING WITH PARTY.-During the progress of the trial of the cause in the District Court, while the court had adjourned for dinner, the defendant took two certain members of the jury in said cause, who were engaged in trying the same, into a public liquor saloon, and treated them to intoxicating liquor, which was then and there drunk by said jurors. Held, that the verdict be set aside and a new trial granted. One of the earliest American cases involving a question of this character is that of People v. Douglass, 4 Cow. 26, which was tried in 1825. The facts out of which the question arose in that case were as follows: "The trial commenced on the 11th of January; at about 2 P. M. the jury had liberty to retire from the box, under the charge of two sworn constables, and the direction of the court to keep together and return speedily. This was before the trial was concluded. The jury retired to consider their verdict about 11 P. M., and returned a verdict of guilty about 4 the next morning. After the conviction a motion was made * * * for a new trial, on the ground that two of the jurors, while out under the care of the constables, separated from their fellows, ate, drank whisky, put cakes in their pockets, and conversed with by-standers on the subject of the trial." A new trial being refused, the case was brought to the Court of Errors. In delivering the opinion of the court, Woodworth, J., said: Clearly we should disregard the fact of eating as forming any ground for setting aside the verdict; for though this might be a contempt of court, being without their leave, yet an opportunity to take reasonable refreshments would always be granted at a proper season; and the circumstance of their being obtained somewhat irregularly could not prejudice the prisoner. But here the doubt is whether there was not further abuse in drinking spirituous liquors. This should not be tolerated in any shape in the jury during the progress of the trial; and we have uniformly held that it vitiated the verdict in a civil cause, even where the liquor was given to the jury by consent. It will not do to weigh and examine the quantity which may have been taken by the jury, nor the effect produced." etc. A new trial was granted. The case of Brant v. Fowler, 7 Cow. 562, was a civil case before the same court two years later. On the trial, after the judge

We

had concluded his charge, several of the jurors requesting permission to go out, the judge told them they could go, accompanied by an officer. One of them, misunderstanding the charge of the judge, while out, separated himself from the officer, and drank about one-third of a gill of brandy. The verdict was for the defendant. On motion in behalf of the plaintiff to set aside the verdict for the irregularity, the affidavit of the juror was produced showing his mistake; and that he drank this small quantity of brandy to check a diarrhoea which he had incurred by drinking new cider, etc. In the opinion the court say: "We cannot allow jurors thus of their own head to drink spirituous liquors while engaged in the course of a cause. are satisfied that there has been no mischief, but the rule is absolute, and does not meddle with consequences," atc. The above two cases were criticised and distinguished, and in so far as they held that the mere drinking of spirituous liquors per se by the jurors was sufficient ground for setting aside the verdict, overruled by the case of Wilson v. Abrahams, 1 Hill, 207. But in denying the motion to set aside the verdict in the latter case, the court, by Bronson, J., laid considerable stress on the fact that in that case the liquors were not drunk at the expense of a party to the suit. They say: "When in the course of the trial a juror has in any way come under the influence of the party who afterward has the verdict, or there is reason to suspect that he has drunk so much, at his own expense, as to unfit him for the proper discharge of his duty, * * * the verdict ought not to stand." In the case of State v. Bullard, 16 N. H. 139, decided in 1844, later in point of time than that of Wilson v. Abrahams, supra, it appeared that about 8 o'clock in the evening the foreman of the jury who had retired for the purpose of agreeing upon a verdict, applied to the officer in attendance, who furnished them meats and drinks, including a half a pint of new rum, which was drunk by some of the jurors who had complained of being unwell. The jury returned a verdict against the prisoner, it being a trial for larceny. A new trial was granted. The court in the opinion, after citing the case of People v. Douglass, supra, say: "And we are of the opinion that the use of stimulating liquors by a jury deliberating upon a verdict in a criminal case, without first showing a case requiring such use, and procuring leave of the court for that purpose, is a sufficient cause for setting aside a verdict found against the prisoner in such circumstances, whether the use was intemperate or otherwise." The case of Davis v. State, 35 Ind. 496, came before the Supreme Court of Indiana in 1871. On the trial in the Circuit Court, "after the jury were charged, and put in the charge of a bailiff, that they might consider of their verdict, the bailiff, with two of them, went to a billiard and liquor saloon, where other persons were drinking and playing billiards, and the bailiff procured for each of them a drink of brandy, ginger-wine, nutmeg and sugar,' ," which they drank, and which was paid for by one of them. This misconduct of the jurors, with other grounds, were set ont in a motion for a new trial. The motion was overruled. In the Supreme Court, after citing to the point of the drinking of intoxicating liquors by the jurors the cases of Creek v. State, 24 Ind. 151; People v. Douglass, supra; Brant v. Fowler, supra; Wilson V. Abrahams, supra; State v. Bullard, supra; Jones v. State, 13 Tex. 168; Pelham v. Page, 6 Ark. 535; Gregg McDaniel, 4 Har. (Del.) 367; and Com. Roby, 12 Pick. 496-the court reversed the judgment. The case of Ensign v. Harney, 15 Neb. 330, came before this court on error to the District Court of Lancaster county, on error for refusal to set aside the verdict and grant a new trial for misconduct on the part of the jury. The facts were that during the progress

V.

V.

of the trial, "on Saturday at about 4 o'clock P. M. the court adjourned until the following Monday. Two of the jurors applied to one of the attorneys (for the defendants in error) for his horse and buggy to carry them home, a distance of about twelve miles, and return the following Monday. The attorney readily complied with their request. A verdict having been rendered for the defendant, a motion for a new trial was filed in which this cause, among others, was assigned. The judgment was reversed and a new trial awarded. The court in the opinion said: “Where a juror is accepted as impartial, he must remain so during the trial. To permit him to accept favors from either party, is to put him under obligation to such party, the tendency of which is to bias his judgment. Nor is it material that such favors were not intended to influence the juror, as it cannot be determined how far they may have had effect; and such misconduct will vitiate the verdict." Where a juror during the trial spent the night at the house of one of the parties, and was entertained free of charge, a verdict in favor of such party was set aside. Walker's case, 11 Ga. 203. Where two of the jurors spent the night at the house of the counsel for the successful party, the verdict was set aside. Walker v. Hunter, 17 Ga. 414. During a trial for robbery, one of the counsel for the prosecution, at the request of two of the jurors, kept their horses over night for them, without charging therefor; a verdict against the prisoner was set aside. Springer v. State, 34 Ga. 381. Where during a trial several of the jurors went to a restaurant kept by a person who was chiefly interested in the verdict, and there partook of refreshments, for which they neither made nor were asked to make compensation, the verdict was set aside. Redmond v. Insurance Co., 7 Phila. 167. Where during a trial a juror and other persons went to a neighboring tavern, and while there the juror ate and drank at the expense of the plaintiff, aud some calculations were made by the juror in the presence of the plaintiff respecting the amount of the verdict, a new trial was granted. Keegan v. McCandless, 7 Phila. 248. In the case at bar the intoxicating liquors were furnished to the jurors, and paid for by the party to the suit in whose favor a verdict was rendered. The question of the unauthorized drinking of intoxicating liquor per se by the jurors does not properly arise. If it did, speaking for myself alone, I could not hesitate to hold it sufficient to vitiate the verdict. But where, as in this case, the liquor is received as a treat at a public bar by a juror engaged in the trial of a cause, by a party to the suit, and drunk by him as such, it cannot be doubted that a verdict following such misconduct, and which necessarily rests under the suspicion of having been influenced thereby, should be set aside. Neb. Sup. Ct., Feb. 15, 1888. Vose v. Muller. Opinion by Cobb, J.

PARENT AND CHILD-DUTY OF PARENT TO SUPPORT MINOR CHILD- DIVORCE. - The obligation of the father to provide reasonably for the support of his minor child until the latter is in condition to provide for his own support is not impaired by a decree which divorces the wife a vinculo, on account of the husband's misconduct, gives to her the custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child's support. The duty of the father to provide reasonably for the maintenance of his minor children, if he be of ability, is a principle of natural law. And he is under obligation to support them, not only by the laws of nature, but by the laws of the land. As said by Chancellor Kent: "The wants and weaknesses of children render it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit and proper person." 2 Com. 189.

And see Trustees v. Trustees, 3 Ohio, 100; Edwards v. Davis, 16 Johns. 281. The natural duty is not to be evaded by the husband's so conducting himself as to reuder it necessary to dissolve the bonds of matrimony and give to the mother the custody and care of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties, or to enable the father to convert his own misconduct into a shield against parental liability. The divorce may deprive him of the custody and services of his children and of the rights of guardianship against his will; but if by the judgment of the court, and upon competent and sufficient evidence, he is found to be an unfit person to exercise parental control, while the mother is in all respects the proper person to be clothed with such authority, he cannot justly complain. The alimony allowed by the court below is not to be construed into an allowance for the support also of the child. Alimony, in its proper significance, is not maintenance to the children, but to the wife; and the fact that there has been a judgment of divorce, with alimony and custody of minor children to the wife, will not of itself operate as a bar to a subsequent claim against the husband for the children's maintenance. We think it is a sound principle that if a man abandons his wife and infaut children, or forces them from home by severe usage, he becomes liable to the public for their necessaries. The doctrine is stated in Weeks v. Merrow, 40 Me. 151, that if a minor is forced out into the world by the cruelty or improper conduct of the parent, and is in want of necessaries, such necessaries may be supplied and the value thereof collected of the parent on au implied contract. See also the language of Metcalf, J., in Dennis v. Clark, 2 Cush. 352; 2 Kent. Com. 193; Stauton v. Willson, 3 Day, 37; Lord Eldon in Rawlyns V. Vandyke, 3 Esp. 252; Fitler v. Fitler, 33 Penn. St. 50. There is evidently no satisfactory reason for changing the rule of liability, when through ill treatment or other breach of marital obligation the husband renders it necessary for a court of justice to divorce the wife and commit to her the custody of her minor children. If under such circumstances, upon the allowance of alimony with custody of children, the court omits to make an order for the children's maintenance, the father's natural obligation to support them is of none the less force. It has been held in England that where a wife is living separate from her husband on account of his misconduct, and the custody of their infant child is given to her, against the husband's will, by the master of the rolls, under the statute, the wife will be clothed with power to pledge the husband's credit for the reasonable expenses of providing for the child. Bazeley v. Forder, L. R., 3 Q. B. 559, was an action for goods sold and delivered. The plaintiff, on the order of the defendant's wife, had supplied clothes for the defendant's child. The wife was living separate from him, for reasons which justified her doing so; and the child, which was under seven years of age, was living with her, against the defendant's will, having been transferred by judicial order, under the statute, from the father's custody to that of the mother. Blackburn, J., said: "I think, ou principle, that as soon as the law became such that a wife separated from her husband might properly and legally have the custody of her infant children under the age of seven years, though the husband objected, it became a reasonable and necessary thing that she should clothe and feed those children according to their degree. It is true that in one sense this is an expense voluntarily incurred by the wife, as she is not obliged to ask for or take the custody of her child; but I think the wife's authority in such cases is to pledge the husband's credit for her

reasonable expenses, though they exceed what she is obliged to incur." It is urged that the father is released from obligation to maintain his infant children when deprived of their society and services against his will. But if voluntary misconduct on his own part leads to the deprivation, he is himself responsible, and not the court which intervenes for the protection of his children. And if the father, as against a stranger, cannot escape liability for necessaries furnished to his minor children though remaining with their mother after the divorce, the mother will not be barred of an action against her former husband for the expense of maintaining the children. After a dissolution of the marriage relation by divorce, the parties are heuceforth single persons, to all intents and purposes. All marital duties and obligations to each other are at an end, and they become as strangers to each other. Upon the establishment of such new relations, a promise may be implied on the part of the father to pay the mother, as well as a third person, who has supplied the necessary wants of his infant child. The statute, 43 Eliz., chap. 2, directs that "the father and mother, grandfather and grandmother, of poor, impotent persons, shall maintain them, if of sufficient ability, as the quarter sessions shall direct." Its provisions have been re-enacted in several of our States; and in view of the special enactment, it has been held that where the husband and wife are divorced, and upou her application the custody and control of the minor children are awarded to her, she cannot, in an action against the father, recover for the entire support of such children furnished by her after the divorce, but only for contribution. But there is no such statute in this State; and in general, after a divorce, as well as during coverture, the primary duty of maintaining any minor child of the morriage still remains with the former husband. An early case in support of the conclusions to which we have arrived is Stanton v. Willson, supra-a decision, says Ellsworth, J., in Finch v. Finch, 22 Conn. 421, "well considered by a court of distinguished and unsurpassed ability, and which so far as my knowledge extends, has ever been satisfactory to the judges and the profession, and sustained by principles as old as the common law itself." The action was book. debt by the plaintiff, the former wife of John Bird, against Willson, executor, for education and support furnished by her, before her intermarriage with Stanton, to the children of Bird. The court say: "By the divorce, the relation of husband and wife was destroyed, but not the relation between Bird and his children. This duty and liability as to them remained the same, except so far forth as he was incapacitated or discharged by the terms of the decree. This decree takes from him the guardianship of two of his chil dren. This transfer of the guardianship to the plaintiff vested her with powers similar to those of guardians in other cases; and the appointment of the plaintiff to this trust did not subject her to the maintenance of the children, her wards, any more than a stranger would have been subjected by a like appointment. By accepting the trust, she became bound to provide for, protect and educate them at the expense of Bird, unless the decree of the General Assembly has made other adequate provision, which by the terms of that decree she is bound to apply. This is not the case here. The sum allowed was directed to be paid to her as her part and portion of Bird's estate, and in lieu of all claims of dower." Other well-considered cases have enforced the same doctrine. In Plaster v. Plaster, 47 Ill. 290, there was a decree dissolving the marriage relation and giving the custody of the minor child to the mother, because of the unfitness of the father, and allowing a sum in gross as her alimony. A supplemental petition was afterward filed by the