such cases admit secondary evidence to prove the original terms of the deed, and enforce its provisions. 6. The time-limit during which an action may be brought on an instrument under seal is generally longer than that allowed in the case of an agreement made by word of mouth or by an ordinary writing. The statutory period of limitations for the latter class of agreements is usually six years. The period allowed for contracts under seal, although not uniform, is frequently longer, in some states running up to twenty years. 7. As regards contracts by deeds there is another respect in which a sealed writing has superior validity over obligations embodied in any other form. Whereas an executory promise made in any other way must be supported by a "consideration" in order to be enforceable, the common-law doctrine is that any promise under seal (save the exceptional one of a covenant in partial restraint of trade) is binding because of its formal execution. Equity courts, however, have refused to recognize the solemnity of the sealed instrument as a sufficient reason for invoking their discretionary and powerful remedy of specific performance. More recently there has been legislation in many western and southern states which has entirely abrogated all distinctions between sealed and unsealed written contracts. In a majority of these states it is further enacted that any written contract imports a sufficient consideration, but if lack of consideration is affirmatively proved the contract is invalid. In New York and a number of other states, there has been legisla 'If, however, the specialty was given for a promised consideration and there was a failure of the expected consideration, Chancery early gave relief by enjoining the obligee from enforcing the obligation and decreeing that he surrender the specialty or execute a release. Today there are probably statutes in all states in which there has been no fusion of law and equity, whereby failure of consideration, in common with fraud and other defenses based on equitable principles, may be set up as a defense to the action at law. See article by J. B. Ames on Specialty Contracts and Equitable Defenses in 9 Harv. L. Rev. 49. 'Dean Pound has pointed out that courts of equity are tending to get away from this doctrine and that there are cases in which "equity does enforce an executory promise on no other basis than declared intention plus a seal." See his article on Consideration in Equity in 13 Ill. L. Rev. 667 and his further comments on the subject in 33 Harv. L. Rev. 834-837. tion somewhat less extreme in character, although modifying the common-law conception of the efficacy of a seal. In New York a scaled, but not an unsealed contract carries with it the presumption of a sufficient consideration." $145. Legislation as to Seals.-The legislation with reference to sealed instruments owes its popularity to the general belief that it is wise to change rules which are admittedly technical and the outgrowth of economic and social conditions which are now obsolete. It may well be questioned, however, whether it is not in accord with present-day convenience to have a formal instrument which carries in its train consequences of a different kind from those which attend writings of the informal sort. Is it not desirable, for instance, that there should be a mode by which even a gratuitous promise may be made binding? This is now an impossibility except in Massachusetts and a few of the other more conservative jurisdictions in which the ancient distinction between sealed and unsealed writings still prevails.' PRACTICE PROBLEMS (a) A father delivered what purported to be a gratuitous release in writing to his son who was indebted to him. The writing concluded as follows: "Witness my hand this first day of May, A. D. 1916." After the father's signature a scroll was made with the pen. Is the release binding? (b) A made a promise under seal to pay B $2,000 on September 1. In consideration of the sealed promise B, at the time A made delivery of the instrument, orally promised to give A title and possession of his automobile on August 20. On August 15 the automobile was accidentally destroyed by fire. What are the rights of the parties? "It should further be noted that the New York legislation affects only executory transactions, and that a seal on a grant, release, or similar executed transaction still retains its full common-law significance in that state. 'It should be mentioned, however, that in New Jersey legislation similar to that of the New York statute above cited has been interpreted as not applying to any case in which the seal was used expressly for the purpose of making a gratuitous promise binding. $146 D. CAPACITY OF PARTIES THORMAEHLEN v. KAEPPEL. Supreme Court of Wisconsin, 1893. [86 Wis. 378.] [This action is to set aside and cancel a certain mortgage executed by plaintiff to defendant during her minority, on her separate real estate, to secure a loan made by defendant to her husband. Other facts appear in the opinion.] LYON, C. J.: Subject to certain conditions, it is a general rule of law that on becoming of full age a person may disaffirm his contract made during minority, and be relieved from the obligations thereof. One of these conditions is that he must so disaffirm within a reasonable time after attaining his majority. O'Dell v. Rogers, 44 Wis. 136, 138. Another condition is that if he has received and retains any part of the consideration for his contract he must return the same before he will be allowed to assert the invalidity of his contract because of his infancy when he made it. The latter rule was applied by this court, in Callis v. Day, 38 Wis. 643, and Knaggs v. Green, 48 Wis. 601. Still another condition of obtaining relief in equity is that the party asking relief has not fraudulently induced the other party to enter into the contract. Unless the plaintiff is subject to one of these conditions, she is entitled to the relief. which the judgment gives her. 1. It is maintained on behalf of defendant that plaintiff did not disaffirm her contract expressed in the note and mortgage within a reasonable time after she reached her majority. She disaffirmed it within three and one-half months thereafter, and it does not appear that during such time the relation of the parties to the securities, or the value of the mortgaged land, materially changed. Within the rule of O'Dell v. Rogers (in which case a delay to disaffirm for nearly three years was held not unreasonable), we think the disaffirmance in this case was notified to defendant within a reasonable time after plaintiff became of age. 2. Counsel also maintains that the case is within the rule which, under certain circumstances, requires the party disaffirming his contract for infancy to restore the consideration paid by the other party. The difficulty with this claim is that the plaintiff never received any portion of such consideration, and hence has none of it to restore. It is argued, however, that because of a fact proved, but not stated in the findings, it ought to be held that in contemplation of law the plaintiff did receive and retains the consideration for her note and mortgage, and hence is within the rule requiring a return to defendant of the money loaned. Such fact is that the money, or a large portion of it, loaned by defendant, for which the note and mortgage were given, was used to pay and discharge a debt secured by another mortgage theretofore executed by plaintiff upon the same land, and hence was paid for the benefit of plaintiff. The claim is that the mortgage in controversy should be held valid at least to the amount of the former mortgage thus discharged by such payment. The infirmity in the argument is that there is nothing in the proofs to show the existence of any condition which would render such former mortgage valid as against the plaintiff. It must be assumed that she was under no obligation to pay the debt it was given to secure in order to relieve her land from the lien of it. It was entirely a voluntary payment, and we are unable to perceive how the fact that such payment was made out of the money loaned by defendant can operate to make the mortgage in controversy valid. 3. It is further claimed that plaintiff was guilty of fraud because she failed to inform defendant, when she executed the mortgage, that she was a minor, or that the former mortgage was not valid as against her. We suppose, of course, that a court of equity would refuse to relieve an infant of his contract if his own fraud induced the other party to enter into it. But we do not think the authorities will sustain the court in holding that the mere failure of plaintiff to impart such information, unasked there being no misrepresentation of fact, and no artifice employed to mislead the defendant-amounts to a fraud which would close the doors of the court against her. By the Court. The judgment of the circuit court is affirmed. $147 HALL v. BUTTERFIELD. Supreme Court of New Hampshire, 1879. [59 New Hampshire 354.] Assumpsit, to recover for goods sold and delivered. The defendant pleaded infancy, and the question was reserved whether that was a bar to the plaintiffs' recovery. The defendant was engaged in trade, and the goods were purchased by him for the purposes of trade, and were not necessaries within the ordinary meaning of that term. STANLEY, J.: The defendant interposes the plea of infancy as a bar to the plaintiffs' right to recover, and, so far as this right depends on an express contract, it is a complete answer. The express contract, on which the plaintiffs rely, was voidable at the defendant's election, but it does not necessarily follow, because the defendant exercises his privilege to avoid the contract, that he is under no liability to the plaintiffs. The right of infants, lunatics, persons non compos mentis, and drunkards, when in such a state as to be entirely deprived of reason, to avoid their contracts, is placed on the same ground. They are considered to be devoid of that freedom of will, combined with maturity of reason and judgment, essential to enable them to give the assent necessary to make a valid contract. To protect them from fraud and imposition, to which from their want of understanding and immaturity of judgment they are exposed, they are permitted to allege their want of capacity to bind themselves by contract. But this privilege is to be used as a shield, not as a sword; not to do injustice, but to prevent it. Zouch v. Parsons, 3 Burr. 1794; Seaver v. Phelps, 11 Pick. 304; Allis v. Billings, 6 Met. 415; Hallett v. Oakes, 1 Cush. 296; Taft v. Pike, 14 Vt. 405; Lincoln v. Buckmaster, 32 Vt. 652; Matter of Barker, 2 Johns. Ch. 233; Sanford v. Sanford, 62 N. Y. 553, 557; Squier v. Hydliff, 9 Mich. 274; Spicer v. Earl, 41 Mich. 191; Allen v. Berryhill, 27 Iowa, 540; Benj. Sales, s, 21; 1 Pars. Cont. 293; Chit. Cont. 135, 136, 141; 1 Fonbl., B. 1, c. 2, s. 4; Bing. Inf. 63; Ewell L. C. 588. But while the disabilities of these different classes of persons and the reasons on which they are placed are the same, and they equally require protection, the application of the principles of law governing their rights and liabilities and their status has been widely different, and has undergone marked changes from time to time. Under the ancient common law, lunatics were allowed to show their lunacy in defense of their alleged contracts (2 Bl. Com. 291); but later, in the times of Edward III, "a scruple began to arise whether a man should be permitted to blemish himself by pleading his own insanity. Under Henry VI this way of reasoning was seriously adopted by the judges, and from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, the maxim that a man shall not stultify himself hath been handed down as settled law.' 2 Bl. Com. 291, 292; Bac. Abr., Idiots and Lunatics, F. The reason assigned for this maxim was, that a man cannot know in his sanity what he did when he was insane (Stroud v. Marshall, Cro. Eliz. 398; Cross v. Andrews, Cro. Eliz. 622); or, as stated by Littleton, "no man of full age shall be received in any plea by the law to disable his own person." Co. Litt., B. 3, 247 b. That such a doctrine ever could have been held to be law seems incredible, for, to use the language of Wilmot, J., it does seem to be very unaccountable that a man should be at liberty to avoid his own acts caused by the duress |