No reference is made to the special local stat-home, he laid the ticket on a table in front of his wife, ute of 1873 in the Act of 1878. The clause in and said to her that "she should take it, and take care of the Act of 1878 "all laws inconsistent with this it, and if he got killed before he got back, she would be $3000 (the amount of the policy) better off :" Act are repealed," did not apply to the Act of 1873, since that Act only referred to a county in which the Act of 1878 was at the date of its passage inapplicable.

A general Act will not repeal a previous particular Act, unless there is an express reference to it, or unless the two Acts are totally inconsistent. Thorpe v. Adams, 6 L. R. (C. P.), 125. Duchess of Hamilton v. Fleetwood, 10 Mod. 118. Brown v. Commissioners, 9 Har. 37.

Held, that these facts were insufficient to establish a gift of the ticket to A.'s wife as against his creditors; that in order to establish such a gift it was necessary to prove that A. intended to part with both the possession and property of the ticket.

Certiorari to and appeals from the Orphans' Court of Wyoming County.

These were appeals by Geo. S. Harding et al.,

Lackawanna Co. v. Stevens, S. C., decided March administrators of H. P. Hallstead, deceased, and

31, 1884, not reported.

Wm. S. McLean, for defendant in error. The county of Luzerne at the time the plaintiff in error assumed the duties of his office had a population of less than one hundred and fifty thousand, and hence the Act of 1878 was applicable.

The Act of June 12, 1878, was simply carrying out the mandate of the Constitution and fixed the sheriffs' fees, as the Salary Act of 1876 did, and it has been held that the Salary Act will apply to a county whenever it acquires the requisite population.

Monroe v. Luzerne Co., supra, 446. The Act of 1878 by its terms declared all laws inconsistent with it to be repealed, and this Act of 1873 is clearly inconsistent with that of 1878.

O. H. Williams et al., creditors of said Hallstead, from a decree of the said Court, sustaining exceptions to, and confirming the report of an Auditor appointed to audit the account of said administrators.

The facts, as they appeared before the Auditor (Chas. E. Terry, Esq.), were as follows:H. P. Hallstead, the decedent, purchased on July 30, 1879, an "accident" insurance ticket from the Travellers' Insurance Company, insuring said decedent in the event of his death from bodily injuries in the sum of three thousand dollars. Said ticket was purchased in contemplation of a trip to New York, and was by its conditions non-transferable, under penalty of forfeiture. On the day of the purchase and before leaving for New York, the following conversation took place between him and his wife, as detailed by one Addie J. Knapp, a wit

May 5, 1884. THE COURT. This case is ruled by County of Lackawanna v. Stevens, de-ness:cided at the present term. The precise question there was, whether the Act of 9th April, 1873, was repealed by the Act of 12th July, 1878. We held it was not. That controls this case and shows the learned Judge erred in entering judgment for the lesser sum.

Judgment reversed, and now judgment in favor of the plaintiff for the sum of $468, with costs and interest from the first of January, 1883, as stipulated in the case stated. PER CURIAM.

[See preceding case.]

Jan. '84, 15, 16.

"I was living at Henry P. Hallstead's in the latter part of July, 1879. I was present on the night of July 30, 1879, when Mr. Weaver brought the insurance ticket to the house. It was about nine o'clock in the evening when he brought it. Mr. Weaver rang the bell and Mr. Hallstead at once went to the door. He then came back from the door with an insurance ticket in his hand. Mrs. Hallstead asked him who was at the door. Mr. Hallstead said George Weaver, and that he had brought an insurance ticket. Mrs. Hallstead was sitting at the table, and Mr. Hallstead laid the ticket on the table right in front of Mrs. Hallstead and said, 'Here is an insurance ticket.' Mrs. Hallstead asked him what he had March 20, 21, 1884. got that for. He said that she should take it and take care of it, and if he got killed before he got back she would be that much better off. He said three thousand dollars better off. She was soon parted, and he said it only cost fifty made a slight remark that a fool and his money

Williams's Appeal.
Harding's Appeal.

Accident insurance - Assignment of policy

What words necessary to constitute-Evidence of gift by husband to wife-What evidence necessary to establish as against husband's creditors-Estoppel.

A., in contemplation of leaving home, purchased an accident insurance ticket, which, by its terms, was nontransferable under pain of forfeiture. Before leaving

cents."

On Hallstead's arrival at New York, and during the life of the policy, he sustained the bodily injuries, of which he subsequently died. Shortly thereafter letters of administration were granted on his estate to his widow, Maria Hallstead and George S. Harding. On September 6, 1879,

was for two days only. During that time he sustained accidental bodily injuries, which caused his death. The sum of three thousand dollars was paid to his administrators by the insurance company, but the money is claimed by his widow, under an alleged gift of the policy to her by Mr. Hallstead during his life.

an inventory and appraisement was filed at the injuries, the sum of three thousand dollars. It instance of both of the administrators, which contained an item of $6000 for life insurance, which included the $3000 in question. On November 18, 1879, the insurance company paid the said sum to the administrators, and obtained a receipt therefor, which was signed by both the administrators as administrators. Subsequently various sums were paid out of this fund to Hallstead's creditors, the checks being signed with the name of George S. Harding, "administrator," or, "for the estate of H. P. Hallstead, deceased."

On February 23, 1882, the administrators filed the partial account, which is the subject of the present audit. They did not charge themselves with the sum of $3000 under contention, but in a note to said account, explained their omission so to do by alleging that the ownership of said sum was claimed both by the widow and the creditors of the estate. Exceptions were filed by the latter to the omission, and an Auditor appointed as aforesaid, who found as matter of fact that the evidence did not establish a gift of the $3000 by Hallstead to his wife, but that even if it had, as matter of law, her conduct since the death of her husband would estop her from claiming the proceeds of said policy to the exclusion of her husband's creditors. He therefore sustained the exception and restated the account by adding to the sum, with which the accountants charged themselves, the additional sum of $3000.

It appears that Mr. Hallstead procured this policy just before leaving home, to be absent a few days. The only witness relied on to establish the alleged gift is Addie J. Knapp. Just before he started, she testifies, he came from the door with an insurance ticket in his hand. "He laid the ticket on the table, right in front of Mrs. Hallstead, and said: Here is an insurance ticket.' Mrs. Hallstead asked him what he had got that for? He said that she should take it, and take care of it, and if he got killed before he got back, she would be that much better off. He said three thousand dollars better off. She made a slight remark that a fool and his money was soon parted; and he said it only cost fifty cents.'

Is that evidence sufficient to pass the title to this ticket from the husband to his wife?

This policy must not be confounded with one which a husband may procure on his life, and by the terms thereof the money be made payable to his wife on his death. On the contrary, the person insured under this policy is expressly prohibited from making any disposition of it. A clause therein declares: "The transfer of this ticket will forfeit all claims arising hereunder."

Exceptions filed to this report were sustained by the Court, and the account confirmed, ING- Was, then, the handing of this non-transferable HAM, P. J., holding in an opinion filed, that the ticket by the husband to his wife, accompanied evidence established a gift of the insurance by his statement and request as proved, sufficient ticket to the wife, and that her conduct subse-to divest all his interest therein, and transfer the quent to his death, did not estop her from set-right of property to her? He did not say that ting up said gift against her husband's creditors. he had procured it for her benefit. When a husO. H. Williams, Solomon Taylor, and George band about to leave home, with the intention of S. Harding thereupon took these appeals, assigning for error the action of the Court in sustaining the exceptions and the decree confirming the account.

John A. Sittser, and W. E. & C. A. Little, for the appellants.

Steuben Jenkins and Garrick M. Harding, for the appellees.

May 19, 1884. THE COURT. These two appeals are from the same decree. They were argued together. The appellants are creditors of the estate of H. P. Hallstead, deceased. The contention is as to the ownership of a policy or ticket of insurance, procured by him in the Travellers' Insurance Company of Hartford, on his own person. It provided for the payment to him of fifteen dollars per week in case of accidental bodily injuries, or in case of death through such

being absent a few days, hands a paper to his wife and makes the remarks stated, is it reasonable to presume that either of them understood that she thereby acquired a right to it adverse to her husband? Unless she then and there acquired such adverse right, the gift was not executed. (Linsenbigler v. Gourley, 6 P. F. Smith, 166.) If he had sustained such injuries as would have I made the company liable to pay fifteen dollars a week for twenty-six consecutive weeks, did the parties to this transaction understand that the wife could draw that money to the exclusion of her husband? It is very clear the language used justifies no such conclusion.

In arriving at the intention of the parties we must recognize the confidential relations which exist between husband and wife, as well as the fact that in his absence his valuable papers left at home depend largely on her care for their protection

and security. The fact of leaving the policy in her care, and requesting her to take care of it, imposed no unusual duty on a wife. The casual remark, that in case of his death she would be three thousand dollars better off, reasonably interpreted, meant his estate would amount to that much more.

It is not denied that a husband may make a valid gift to his wife of money or chattels, by delivery of possession and language proving such intention. (Crawford's Appeal, 11 P. F. Smith, 52.) It should, however, clearly show an intention to part with both possession and property. Either one alone is not sufficient. (Trough's Estate, 25 Id. 115.) A careful consideration of this whole transaction fails to convince us that the husband intended to part with his right of property in the policy when he handed it to his wife. His language fairly interpreted conveys no such idea. There is no evidence that she understood, when she received it, that she took it otherwise than his custodian, to hold it in his absence. Her possession was his possession.

March 3, 1884. THE COURT. The affidavit of defence filed in this case is not in conformity to correct practice, in being made up of two affidavits by different persons. Where the facts are not all personally known to the defendant the better practice is to include them nevertheHer subsequent action in regard to the policy less in one affidavit of the defendant, as facts clearly shows this to have been her understand-of which the defendant is informed, and which ing. Soon after the death of her husband letters he expects to prove upon the trial. But under of administration on his estate were granted to our rule the affidavit need not necessarily be by her and one George S. Harding. The Auditor the defendant, but may be by some one for him found as a fact that the inventory and appraise- knowing the facts. The two affidavits may therement filed in the register's office, and purport- fore be considered in estimating the defence; ing to have been made at the request of both of especially as the affidavit of defence rule has said administrators, contained an item for "Life been but recently introduced into the practice Insurance" for a specific sum, which included of this Court, and it becomes the Court to be this accident policy in question. Conceding that tolerant of mere informalities. act, under the circumstances shown, may not operate as an estoppel so as to bar her right to the proceeds of the policy, if otherwise entitled thereto, yet it is certainly persuasive evidence that she did not then claim it in her own right. This item was not included in the inventory without her knowledge, for her attention was called to it at the time.

Whether or not the two affidavits jointly disclose a sufficient defence is the point to be determined. Taken together they assert that the note in question was executed by the defendant without any valuable or valid consideration; that at the instigation of the plaintiffs, A. H. Supplee, the son of the defendant, went to his mother, the defendant, and induced her to sign the note by representing to her the threat of the plaintiffs to institute a criminal prosecution against the son on the charge of obtaining goods under false pretences, unless she executed the note in suit; that induced by this threat, and under duress, to avert the threatened arrest and criminal prosecution, the defendant signed the note.

Is this, under the circumstances stated, if the facts are made out, a sufficient defence to the note as against the defendant?

I am not prepared to say that it would not be. All the authorities agree that an obligation given in compromise of a felony is void. But as regards misdemeanors there is some conflict among the decisions, some of them holding that whilst the compromise of some misdemeanors would be an unlawful consideration for a contract, it would be otherwise as respects some others, this distinction being based upon the difference of

infamy or public interest which is supposed to procure the settlement of a criminal charge of attach. There are therefore cases to be found fornication was held to be void. Justice PAXwhere indictable offences have been allowed to SON, in delivering the opinion of the Supreme be made the subjects of compromise in support Court in Ormerod and Dearman says: "The of promises to pay money. This line of distinc- stifling of a prosecution for a criminal offence, tion being difficult to be defined with accuracy even where it is a mere misdemeanor, and of has led to some confusion in this country and in such a character as to be within the control of England. But the later and better considered the parties, is not a proper subject of a bargain authorities everywhere seem tending towards an for a fee." obliteration of the distinction itself in all cases where a contract is based upon the stifling of a criminal prosecution as a consideration of a promise to pay money.

In Riddle and Wife v. Hall (3 Out. 116), there was an attempt to enforce a mortgage executed by husband and wife against the real estate of the wife, which had been executed by the wife under a threat to prosecute her husband and son for embezzlement. The mortgage was held to be void.

In Bredin's Appeal (11 Norris, 241), it was held that agreements founded on the suppression of criminal prosecutions are void; and that it is the nature of the crime, not so much whether it be a felony or misdemeanor, which is to be considered.

In the National Bank of Oxford v. Kirk (9 Norris, 49), a promissory note was held to be void where the consideration was the promise to refrain from prosecuting the son of the maker for forgery.

If not for a fee, then upon the same grounds, how can it be the subject of any bargain for the payment of money?

It is not because of any moral turpitude there may be in such a bargain that it is held to be void; but it is void because it is against public policy, and not favorable to the interests of good morals.

It is also against the policy of the law that criminal prosecution should be used to collect private debts. It is laid down by Wharton in his treatise on the Law of Contracts (§ 151 a) that "Promises extorted under the threat of the criminal prosecution of near relatives are to be subjected to the same tests. Thus it is held a defence to a suit on a mortgage or other obligation, that it was executed by a wife to save her husband from prosecution for false pretences or for embezzlement, or for any other indictable offence." Whilst a court of equity will not set aside a deed of a married woman on the ground that she executed it to relieve her husband from

I am aware that there are dicta, and some de-arrest, it will nevertheless not compel the percisions, where a distinction has been made in formance of a contract so induced. This latter this regard between forgery and cheating by false distinction will serve to reconcile some cases pretences. But if the infamy of the offence is apparently in conflict.

to regulate the validity or invalidity of a promise It is true that where an injured person has to pay money for stifling a criminal prosecution, both a civil and criminal remedy the debt may it might be difficult to determine the shade of be settled; and a promise by a surety given in distinctive infamy between cheating by a false extinguishment of the indebtedness would be pretence and cheating by a forged name, which is in fact itself only one form of false pretence, and the immoral object to be accomplished is precisely the same in both.

for a sufficient consideration. And if in the case at bar Mrs. Supplee's note had been given for such purpose the question would present a different aspect. For when a benefit is done to a In McMahon v. Smith (47 Connecticut R. third person, in a legitimate way, at the request 221), it was held that a promissory note, exe- of the promissor, it is sufficient to support the cuted by a surety in consideration of the aban- promise. But the guaranty of a debt of another donment of a criminal prosecution for obtaining already contracted, without a new consideration, goods upon false pretences, was void. The is not binding. The note was only a collateral learned and well-considered opinion delivered at most; and if the stifling of the threatened by LOOMIS, J., in that case is worthy of especial prosecution was not a legal consideration, there attention, for its reasoning as well as the authorities there cited. (See, also, I Wharton on the Law of Contracts, §§ 483, 484, and the authorities there reviewed.)

In the late case of Ormerod v. Dearman (13 WEEKLY NOTES, 85), it was held that "contracts which have for their subject-matter any interference with the creation of laws, or their due enforcement, are contrary to public policy, and cannot be enforced." And in that case a contract with an attorney for a contingent compensation to

was no consideration at all. For to support it as a promise to pay a pre-existing debt required some new consideration, which was at the same time lawful and beneficial, either to the defendant or to her son; and here according to the affidavit of defence there was neither.

These principles as bearing upon such a case
are very fully and clearly discussed by Justice
TRUNKEY in Conmey v. Macfarlane (1 Out. 361).
Rule discharged.

Opinion by BOYER, P.
'. J.