Rumsey v. Leek, 5 Wend. 20

Rumsey v. Leek

5 Wend. 20 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

I am inclined to think the court erred in excluding the evidence offered by the defendant below. It was objected to, as going into the merits of the award, and was rejected on that ground. Its object was to shew that there was no consideration for the note on which the suit was brought. The consideration was either the agreement on the part of Mrs. Losee to arbitrate, or the note given by her to the defendant.

Now it is well settled, as a general rule, that a married woman cannot be a party to a submission without her husband, whether the subject of controversy arose before or af*22ter her marriage. Kyd on Awards, ch. 2, p. 35. And it is eqUa[jy weq settled that she cannot bind herself by note or bill of exchange, so as to be liable at law. Chitty on Bills, 23, 4, and notes, Philad. ed. of 1821. If both the submission and the note of Mrs. Losee were void, then there certainly was no consideration for the note of the defendant. If the award had been in his favor, he could not have enforced it either against Mrs. Losee or her husband, unless it were shewn that she acted as his agent and by his authority, which is not pretended.

Admitting that there may be exceptions to the general rule that the promissory note or submission of a feme covert is absolutely void, it was for the plaintiff to shew that this was a case of that description. It'was sufficient for the defendant to bring his case within the general rule in the first instance.

The evidence offered did not involve or lead to an investigation of the merits of the award; its effect was to shew that there was in fact no legal submission, and of course no authority to make any award.

The plaintiff having received the note with full knowledge of all the circumstances offered to be proved, the consideration may be inquired into, in the same manner as between the original parties. 2 Johns. R. 300. 10 id. 198. 11 id. 128. 12 id. 159. 13 id. 238. The property in the note also vested in the husband of the payee, and she could not transfer it. Chitty on Bills, 25, 93. 1 East, 432. 8 Johns. R. 98.

Judgment reversed, and venire de nova to Seneca common pleas.