5. Because the defendant is not now denying the allegations upon which this writ was issued as the reason for dissolving it.

The matters complained of by plaintiff, originated in a contract between him and George G. Landis, and the same is true with reference to those who have asked to become parties plaintiff here. George G. Landis, the defendant, contracted with them, purchased from them quantities of tobacco, cases of tobacco, amounting in all to about $695, which were by them delivered to him, and for which he refuses to pay them.

There is no allegation or pretence that any of the goods furnished came within what the law designates, and regards as necessaries for a minor, and for which he may properly contract and be bound to pay nolens volens.

These appear to be contracts of that class which the law declares an infant incompetent to make, and, if he make them may avoid them by reason of his minority. They are cases in which, if actions of assumpsit were brought against him, his plea of infancy would be a complete bar to a recovery if the fact of infancy were established. In these cases it is admitted. It is not alleged that in any case he fraudulently represented himself of full age, and thus induced the parties or any of them to contract with him, or if he had done so the fact would not, at law, constitute a good replication to a plea of infancy, nor be sufficient as the basis of a replication on equitable grounds, though it would, perhaps, entitle the plaintiff to relief, if made the subject of a bill in equity.

The law considers an infant as devoid of sufficient discretion to carry on a trade, and therefore, not liable on a purchase of goods supplied to him for his trade or business. Therefore, the contracts of an infant at common law cannot be enforced. except for necessaries. He has no power to bind himself to pay money borrowed by him to make repairs on his estate (I Grant 53) and whenever the substantive ground of an action against an infant is contract, (except for necessaries) the plaintiff cannot recover. (6 Watts 9.) In an action in a judgment confessed before a justice, the defendant may interpose the defence of infancy at the time such judgment was obtained (7 W. & S. 170), and a judgment entered on a warrant of attorney given by an infant, will be opened by the Courts to let in the defence of in

fancy, (1 Luz. Leg. Reg. 332), and where entered on a joint "judgment note," executed by a minor and an adult, the judgment will be stricken off as to the minor.

This being the case and the first reason assigned having been removed by the appearance in the case of the guardian ad litem, there appears to be no valid reason why the plea of infancy should not be as valid and effectual in this mode of proceeding, as in an ordinary action of assumpsit brought against the infant to recover the price and value of the goods sold and delivered to him; wherein as we have seen, it would be a good defence and prevent recovery-and although this is said to be, and doubtless is a hard case, the hardship of special cases must not be permitted to run away with the law. It would be an exceedingly dangerous expedient to fritter away a principal in order to sustain an exceptional case. the case has been presented we feel bound to make the rule absolute and dissolve the attachment.

As

Having arrived at the conclusion that the attachment cannot be sustained against this minor, the proceedings as against the garnishee, must also fall, there being no defendant, there can be no garnishee. The garnishee is only made a party by reason of his being a custodian or supposed cusdian of property belonging or alleged to belong to the defendant in an attachment, when there is a legal defendant. He is not a voluntary party to the proceedings in any case; he is summoned at the instance and upon the suggestion of the party who issues the writ. The garnishee does not come in and ask that this attachment be dissolved as against the defendant or the garnishee. He does not attempt to make himself a party, or in any manner interfere with the proceedings, as the parties did in Lawrence's Appeal, and kindred cases cited. The reasons filed which refer wholly to the garnishee cannot be sustained. The attachment is therefore dissolved, this being done, it only remains for the Court to dispose of the question of costs, and as the whole proceedings, as they have been presented, show a course of conduct on the part of the defendant, wholly unjustifiable, and highly reprehensible, we have no hesitation in saying that he should pay the costs. of this attachment proceeding; and. we do now order and direct, that the defendant do pay the costs of said proceeding when properly taxed.

Susan Leidig v. The New Era Life Association

of 1876, of Philadelphia, Pa.

In the certificate of life insurance in suit, the company covenanted and agreed in consideration of certain payments and assessments. "at the expiration of sixty days after proof of the death of Jacob W. Leidig, to pay or cause to be paid unto Susan Leidig his wife, or their heirs and legal representatives, the sum of three ($3.00) dollars for every $1,000 maxium sum of benefit actually in force in this association upon the decease of the said Jacob W. Leidig, and upon which the mortuary assessments are paid; provided the amount so paid shall not exceed the maxium sum of three thousand dollars." HELD, by the Court below, and affirmed by the Supreme Court that the burden of proof was not upon the plaintiff, but upon the defendant, to show, that there were "$1,000 maximum sums of benefits actually in force in the defendant company upon the decease of the insured, and upon which mortuary assessments are paid."

It was for the jury to determine whether the applicant had "read or heard read all the answers in the application."

Error to the Court of Common Pleas of York County, No. 51, June T., 1880.

The main facts in this case are developed by Judge Gibson in the following charge to the jury:

This is an action of covenant brought by Susan Leidig against The New Era Life Association, of Philadelphia, to recover the amount payable on the death of her husband, Jacob W. Leidig. A certificate of membership in the said association, issued under seal of the corporation to Jacob W. Leidig, on the third day of June, 1879. This certificate recites the payment of thirty dollars, and a covenant to pay annually the sum of nine dollars each year, and the mortuary assessments required. In consideration whereof the New Era Life Association covenants to pay, at the expiration of sixty days after reasonable and satisfactory proof of the death of Jacob W. Leidig, to pay to Susan Leidig, his wife, three dollars for every thousand dollars maximum sum of benefit actually in force upon the decease of the said Jacob W. Leidig, and upon which the mortuary assessments are paid; provided, the assessment so paid shall not exceed the maximum sum of three thousand dollars. Then follow the conditions

which shall release the association from liability; as, that: Any misstatement or concealment of any fact touching the health, occupation, or material to the question of longevity of the applicant, the certificate thereupon shall become void.

The only assessment called for during the life of Jacob W. Leidig was paid, as is shown by receipt dated December 18, 1879, for $7.74. Mr. Leidig died on the 7th of February, 1880. The preliminary proof of notice to the association of this fact, and also the sufficiency of it, was for the Court, as to whether it was reasonable and satisfactory according to the terms of the certificate. The papers in relation to this matter are in evidence, and furnished to the insured. On the state of these facts, and on a failure to pay, at the expiration of sixty days, the plaintiff asks to recover the assessment payable.

These are certain general facts in proof that should be stated before we come to the consideration of those facts more especially in issue under the pleadings in this case.

At and about the time this insurance was effected, a large number of applications were made to other companies, and policies or certificates of membership issued, some before and some after this one, on the life of Jacob W. Leidig, in some of which the plaintiff and beneficiary, and in some their son, and in one a daughter. The names of the several companies, eighteen, I believe in number, have been and the statedetailed before you; ments in the several applications, medical certificates and death proofs, have been read to you and commented upon. The amount of insurance effected being $52,000.

As already stated, Mr. Leidig died on the 7th of February, 1880-within the year after those assessments were effected.

In the month of March, 1880, the body of Jacob W. Leidig was exhumed and an autopsy was held. That is, the body was taken from the grave and par

plication. And Mrs. Leidig said she didn't know when he was attended by a physician, that he had a sunstroke in June, 1879, but did not know whether the doctor was called or stepped in, and that he was not attended by any physician prior to the attendance of Doctor De Burkharte, which was on November 6, 1879. The insured said to Mr. Stock that he had a sunstroke in the summer of 1879, between the latter part of May and the latter part of June, 1879. But it is a question of fact for you to determine whether there was, or was not, an untrue answer to this question, and if not true, the policy is void, and the plaintiff cannot recover; if not untrue, the plaintiff can recover, if otherwise entitled to recover.

The last ground of defence is, that the plaintiff, Mrs. Leidig, and her husband, Jacob W. Leidig, and their son, Albert J. Leidig, and others, entered into a conspiracy to cheat and defraud the defendant and other insurance companies, by means of false answers as already stated, and effected a membership in the New Era Life Association, the defendant, for their mutual benefit and advantage, and to divide the amount of insurance. That they caused the insured to make false answers, and conspired together to encourage him in habits of intemperance, for the purpose of shortening his life, and causing his death before the expiration of his expectancy, and that intemperate habits was the cause of his death. That the conspiracy went further, and that his death was caused by administering poison to him in his last illness.

A conspiracy is an agreement between two or more persons to cheat and defraud another. There is no charge against the plaintiff in this case outside of the alleged conspiracy. It is not charged that the plaintiff alone procured the insurances, or this one, or impaired her husband's longevity, or administered poison with her own hands. But there was a concert of action, by her with her son and husband,

and with others for the purpose. In support of such conspiracy, they show the very large amount of insurance taken, and produce testimony to show that Mr. Leidig was embarrassed and poor, and to show ill treatment of Mr. Leidig by his family, by two or three servants, with a declaration of A. J. Leidig, the son, in the presence of his mother, that if Mr. Leidig could not recover, he would find a way to put him out; an altercation, a struggle at the hotel between Albert and his father. That on one occasion Mr. Leidig's voice was heard in a high tone, followed by the falling of a body; and that the post mortem examination indicated diseases of the liver from intemperance, and that the presence of mercury in the portions of the remains analyzed in Philadelphia, indicate that corrosive sublimate, or a preparation of mercury in some irritant form had been administered just previous to his decease. And other circumstances in the case, commented upon by counsel, and which you will remember.

The plaintiff on her part has produced testimony to show that she and her husband had money, made and inherited, and to show kind and attentive treatment on the part of the family toward Mr. Leidig, and careful attention to his wants during his last illness. That he had frequent visitors, that gentlemen set up with him at night, the plaintiff being much in the room, and watchful of his wants and diet, and plaintiff denies the words spoken by A. J. Leidig. That Mr. Leidig had hemorrhages (which plaintiff says was brought on by excessive lifting,) which commenced in November, 1879, and continued at intervals to the time of his death. the attending physician and other physicians pronounce the cause of his death to be hemorrhages, and that the indications of the post mortem showed a condition of the vital organs which could have produced congestion of the lungs resulting in hemorrhage, and that the corrosive sublimate or presence of mercury in the system, is

That