the constitution; and it is an established principle of law, that the acts of an officer thus having color of title in the exercise of the ordinary functions of his office, are valid in respect to the rights of third persons, who may be interested in such acts. The adoption of such a rule is necessary to prevent a failure of justice, and the great public mischief which might otherwise be justly apprehended. Besides, the officer's title to his office ought not to be determined in a collateral way. This was decided in the case of Fowler v. Bebee, 9 Mass. 231 [6 Am. Dec. 62], cited in the argument and in the case of The People v. Collins, 7 Johns. 549, and has been repeatedly ruled. The doctrine is well explained in the case of The King v. Lisle, Andrews' Rep. 263. By the test and corporation acts in England, all persons are disabled in law, to all intents and purposes, to hold certain offices, unless they take the oaths required. Yet, notwithstanding this disabling clause, which is very strong, it has been held that the acts of officers not qualified according to these statutes may be valid as to strangers.

A distinction was attempted to be made by the counsel for the demandant, whereby the rule should be limited to such officers as may be styled political, and who exercise a portion of the sovereign power, but none of the books will warrant such a limitation. The rule, as laid down, extends to all public officers, nor can we discern any reason for restraining it. Demandant nonsuited.

BROOKS V. POWERS.

[15 MABB. 244.]

POSSESSION OF GOODS SOLD.-The possession of goods sold by the vendor is evidence of the strongest kind, but is not conclusive of fraud.

REPLEVIN for a pair of oxen and other cattle, attached by the defendant on an original writ against one Stephen Witt. The defendant pleaded property in Witt. Issue was thereupon joined.

It appeared the plaintiff had leased the property to Witt.. A few days before the attachment Witt gave the plaintiff a bill of sale, and made a delivery on the farm; but it was agreed between the parties that the oxen should remain to carry on the work of the farm that year, for which he was to support them free of expense for the plaintiff; and it was further agreed that the plaintiff might work the oxen when Witt did not need them.

The cattle were thus in possession of Witt at the time of the attachment. A verdict was entered for the plaintiff. A bill of exceptions was filed.

Bigelow, for defendant, contended that the possession was fraudulent, relying on Sts. 13 and 27 Eliz.; Sturtevant v. Ballard, 9 Johns. 337 [6 Am. Dec. 281]; Portland Bank v. Stacey, 4 Mass. 661 [3 Am. Dec. 253]; Putnam v. Dutch, 8 Mass. 287; Lamb v. Durant, 12 Mass. 54 [7 Am. Dec. 31]; Gale v. Ward, 14 Mass. 352 [7 Am. Dec. 223].

In the case of attachments, also, if the officer making the attachment suffer the goods to remain in the hands of the debtor, they will be liable to be attached by other creditors: Knap v. Sprague, 9 Mass. 258 [6 Am. Dec. 64]; Baldwin v. Jackson, 12 Mass. 131; Budge v. Wyman, 14 Mass. 190.

There are some cases, it is conceded, where possession after a sale is not in itself fraudulent, but is merely prima facie evidence of fraud; as where the sale has been public and notorious; and where it is conditional, and the vendee is not to have possession until the condition is performed: Barrow v. Paxton, 5 Johns. 230 [4 Am. Dec. 354].

Lincoln, for the plaintiff.

By COURT. It has been contended in this case that the possession of the vendor of personal chattels, after the sale, is conclusive evidence in favor of creditors, that the sale was fraudulent, or rather that it is itself a fraud. But we are all of opinion that, although it is generally evidence of the strongest kind, it is not conclusive. The vendee may, notwithstanding, upon proof that the sale was bona fide and for a valuable consideration, and that the possession of the vendor, after such sale was in pursuance of some agreement not inconsistent with honesty in the transaction, hold under his purchase against creditors; and so it has been often decided in this court as well as in England.

Judgment on the verdict.

There is a conflict in the decisions as to whether possession of property sold by the vendor is evidence of fraud merely, or conclusive of fraud. This case holds, as do the cases generally, that it is merely presumptive evidence of a very strong character. In Ingalls v. Herrick, 108 Mass. 353, the doctrine maintained in Massachusetts is stated on the authority of the principal case; the court saying: "It was early held that the possession of personal chattels by the vendor after an alleged sale is not conclusive evidence of fraud. Upon proof that the sale was made in good faith and for a valuable consideration, and that the possession after the sale was in pursuance of some agreement not

inconsistent with honesty in the transaction, the vendee might hold against creditors: Brooks v. Powers, 15 Mass. 244. It was declared by Morton, J., in Shurtleff v. Willard, 19 Pick. 202, 211, that whatever the rule upon this point may be in England or elsewhere, it is perfectly well settled in a series of cases here, that the possession of the vendor is only evidence of fraud, which, with the manner of the occupation, the conduct of the parties, and all other evidence bearing upon the question of fraud, is for the consideration of the jury:" See note to Sturtevant v. Ballard, 6 Am. Dec. 281.

NIGHTINGALE v. WITHINGTON.

[15 Mass. 272.]

INDORSEMENT BY INFANT.—A minor, in consideration of his services, received a promissory note from his emplover. This note he indorsed to a third person for a valuable consideration, the indose knowing the indorser to be a minor. The maker afterwards paid the amount of the note to the father, both knowing of the indorsement. It was held that the indorses could still recover on the note against the maker.

Assumpsir on a note made by the defendant payable to one Vose, or order, and indorsed by him to plaintiff. The agreed facts were: The defendant gave the note to Vose in consideration for his labor and services. The latter then and at the time of the action was an infant. He indorsed in blank to one Bacon, and the latter transferred it to the plaintiff, who, as well as Bacon, knew Vose to be a minor. The defendant, since the indorsement, paid the amount of the note to Reuben Vose, the minor's father, receiving a receipt, wherein it was expressed he received the same in full payment of the note given to the son. It was agreed that judgment should be rendered, upon the default of the defendant, or the nonsuit of the plaintiff, subject to the opinion of the court.

Metcalf and Cushing, for plaintiff.

T. Williams, for defendant.

PARKER, C. J. That an infant may indorse a negotiable promissory note, or a bill of exchange made payable to him, so as to transfer the property to an indorsee, for a valuable consideration, seems to be well settled in the law merchant, and is no way repugnant to the principles of the common law. Such indorsement is not like one made by a feme covert, for a note payable to her becomes the property of her husband, and further, her acts are absolutely void, whereas those of an infant are voidable only. It would be absurd to allow one who has made a promise to pay to one who is an infant, or his order, to

refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise, and it would impair the value of such contracts in the hands of infants, if they were unable to raise money on them, as others may do.

Whether an infant may avoid an indorsement so made and oblige the promisor to pay him, is a question not arising in this case, for there has been no countermand or revocation of the order to pay, which is implied in his indorsement. If an action should be brought against the infant, as indorser, for the default of payment by the promisor, without doubt he may avoid such action by a plea of infancy. But that is a personal privilege, which none but himself can set up, in avoidance of any contract made in his favor. It is said, however, that the promise, of which this note was the evidence, was made in consideration of the earnings by the labor of the infant, and that those earnings accrued to his father, who, having received payment of the note after the indorsement, has intercepted the plaintiff's right to recover. We must see what are the rights of a father over the earnings of his son, in order to determine the merits of this objection. Generally, the father, and in case of his death the mother, is entitled to the earnings of their minor children. This right must be founded upon the obligation of the parents to nurture and support their children, which obligation is compensated by a right to their services, or to the fruits of them if, by their permission, they are employed by other persons. But where the father has discharged himself of the obligation to support the child, or has obliged the child to support himself, there is no principle but that of slavery which will continue his right to receive the earnings of the child's labor. Thus if a father should refuse to support a son, should deny him a home, and force him to labor abroad for his own living, or should give or sell him his time, as is sometimes done in the country (although this latter practice is certainly questionable as to any promise made in consideration of it) the law will imply an emancipation of the son, and although it will not enable him to contract to his prejudice, it will give him the benefit of such contracts as are made with him for his services, and a payment made to the son, in such circumstances, will be a good discharge of such contract: Benson v. Remington, 2 Mass. 113; 1 Bl. Com. 453.

In the case before us the money sued for was due for the labor and service of Robert Vose, the minor. It does not appear that the services were contracted for by the father, or that

But a negoti

was then per

he made any claim for the money due for them. able promissory note was given to the son, who mitted, as far as can be discerned by the facts, to make the contract for himself, and to receive the payment. There was no prohibition, by the father, to make payment to the son, and it was not until after he had parted with the note for a valuable consideration, a fact known to the father, that he received payment of the note, and even then it does not appear that he claimed the money as his right, but that the payment was altogether voluntary by the defendant, who had full notice of the indorsement. These circumstances warrant us in deciding that such payment shall not avail the defendant.

Defendant defaulted.

This case is included in Ewell's Leading Cases on Infancy and Coverture. On the authority of this case and others, Story, Promissory Notes, sec. 79, says: "But although an infant cannot bind himself absolutely as the maker of a promissory note, there is no doubt that he may be the payee thereof, since it cannot but be for his benefit, if the consideration thereof does not move from himself, but from some third person; or if it be for a debt justly due to himself, as for labor and services. However, it is quite a different question whether an infant can personally receive payment of such a note, made payable to himself or order, or whether it be payable to his guardian only. The latter would seem to be the true rule." Touching the point of an indorsement by an infant, Colt, J., in Welch v. Welch, 103 Mass. 562, says: "It has been held that the indorsement by an infant payee of a note cannot be set aside by him as void, so as to give him a right to recover of the maker, who has paid the indorsee before notice that the order of payment is countermanded; and for the reason that the transaction has become executed in favor of his appointee, and cannot be opened without reinstating the maker. 'It would be absurd,' says Parker, C. J., in Nightingale v. Withington, 'to allow one, who has made a promise to pay to one who is an infant, or his order, to refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise.' Whether an infant may avoid an indorsement, or an order to pay money belonging to him to a third person, before the order is executed, is another question." This question is discussed by Story in his work on Promissory Notes, sec. 80, and he says that "the infant may indeed avoid it, and intercept the payment to the indorsee; or by giving notice to the antecedent parties of his avoidance, furnish to them a valid defense against the claim of the indorsee. But until he does so avoid it, the indorsement is to be deemed, in respect to such antecedent parties, as a good and valid transfer."

CONNER v. HENDERSON.

[15 Mass. 319.]

DUTY OF VENDEE ON RESCISSION.-To entitle a vendee to rescind, and recover back the consideration, he must place the vendor in the same situ. ation as before the sale.