salvage, and he cites Lord Mansfield's opinion in Baillie v. Moudigliani, Park on Ins. ch. 2 p. 53, to the same effect.

It is not easy to reconcile these decisions with each other, or with acknowledged principles on the same subject; it is agreed that the ship-owner is not an insurer of the goods against the perils of the seas, and if, without his fault, they be deteriorated to the greatest degree, so as even to be worth nothing on their arrival at the port of destination, it seems he is entitled to freight. Hotham v. E. India Co., Doug. 272, and Lutwidge v. Gray, Abbott 280, Molloy, Lib. 2, ch. 2, sec. 14. If the ship be wrecked without the fault of the owner, and the goods subject to salvage are afterwards delivered at the port of destination, is not the salvage to be considered rather as a deterioration from the value of the goods than a loss of them? In the case of a general average, it is not pretended that the average is to be deducted from the amount of the goods before the freight is calculated on them; and yet the same principle would seem to apply in the one case as the other. If the goods specifically remain at the end of the voyage, or the proceeds of them, which seems the same thing, why should the owner of the ship be burthened with charges, or rather with a loss of freight in proportion to the amount of the charges, which have arisen without his fault, and against which he has not undertaken to indemnify? Perhaps a distinction may exist between cases where the ship has delivered her cargo at the port of destination, or where the cargo has been accepted at a port of necessity. Even then if a freight pro ratâ itineris be payable, it is not easy to perceive a reason why the general rule, as applied to the whole of the cargo should be varied.

It might be added, that the freight itself in cases of salvage is estimated, as a part of the property saved, and as such pays salvage, and it ought not to contribute twice. The Dorothy Foster, 6 Rob. 38.

ART. V.-BARON AND FEME.

What are the husband's rights in choses of action belonging to the wife? What, where she survives him?

THE answer to these questions must depend on the following principles:

1. That the husband is entitled upon marriage to all the personal estate of the wife; to that in possession immediately; to that in action upon reducing it into possession, or doing some act equivalent. Toller L. of Ex'rs. 174; 2 Bl. Com. 437; 1 Str. 516; 3 Wils. 5; 10 Mod. 264; 1 Com. Dig. Baron and Feme E.; 2 Rolle Rep. 134; 1 Mod. 179; 1 Sid. 337. 2. That this applies equally to contingent as to present, actual, vested interests. Toller, 216, 217; Harg. note (304)

to Co. Litt. 351.

3. That if the wife die leaving choses in action, or contingent interests, or other estate not reduced into possession, and the husband survive, he cannot merely in that character recover them after her death; but they may be recovered by her administrator. Co. Litt. ub. sup.; 1 Rolle. ab. 345, pl. 35; Roper on Baron and Feme, 78; Toller, 217.

4. That the husband, and not the next of kin, is entitled to administration upon his wife's estate, and is entitled to hold the proceeds thereof to his own use, and is not compellable to distribution. 2 Bl. Com. 504, 516; Roper, Baron and Feme, 77, 78; 1 Rolle 345, pl. 35; Toller, 84, 217, 225; Squibb v. Winn, 1 P. W. 378; Doe v. Polgrean, 1 H. B. 533; 2 Rolle Rep. 134; 4 Co. 516.

5. That consequently all vested and contingent interests and choses in action of his wife reduced into possession, under the title of administrator, are for his sole benefit only, subject to the claims of creditors. Watt v. Watt, 3 Vez. Jr. 246; Brown v. Show, 1 Show, 25; 1 Rolle Rep. 910; 1 Sid. 409; Jac. 175; Cro. Car. 106, &c. &c.

6. That if he die in such case without administering, yet his personal representative, and not the next of kin of his wife, will be beneficially entitled to her estate. Elliot v. Cutler, 3 Atk. 526; 1 Wils. 168; Humphrey v. Buller, 1 Atk. 458.

7. That the distributive share in an intestate's estate vests

immediately on his death in the person entitled, and upon the decease of such person before receiving it, goes to his or her personal representatives, and not to the representatives of the intestate. Edward v. Freeman, 2 P. Will. 436, partly 442, 446; 1 P. Will. 40; Squibb v. Winn, 1 P. W. 378, 381, 382; Palmer v. Allicock, 3 Mod. 58; S. C. Skinn. 212, 218; S. C. Comb. 14; 2 Show, 407, 486; Brown v. Show, 1 Show, 25; Co. Litt. 351, a. Harg. note 304; Carth. 51; Toller 386.

It results from these principles, that if a married woman become entitled to a distributive share in the estate of an intestate, and she dies without its being reduced into possession, her husband surviving her will be entitled to receive it on taking administration on her estate to his own use, and not her next of kin. The form of his obtaining it differs, but he becomes as beneficially entitled to it, as if reduced into possession during the coverture.

Where the wife survives the husband, she, and not the representatives of the husband, is entitled to all her choses in action, not reduced into possession. 2 Bl. Com. 438, 439; Co. Litt. 39; 3 Mod. 186; Wood's Ins. 61, 63; Co. Litt. 120; Toller's Ex'rs. 173, 174; 3 Bac. 19, 20 (by Guillim.)

If she dies, on administration, her next of kin, and not the next of kin of her husband, become entitled to the personal estate, which the wife held by survivorship. Comyn's Bar. and Feme E. cites 2 Vent. 341; Cas. Ch. 182; Toller's Ex'rs. 170, 171.

ART. VI.-MASTER AND SERVANT-INFANT'S CONTRACT FOR SERVICE,

It may be questionable, whether an infant can bind himself as a servant for any certain time or upon any certain terms; the general rule being that the contracts of infants are void, unless for necessaries. If however the hiring be upon the usual terms, as in husbandry for the season; or in the sea service for the voyage, and upon the usual wages; it might seem that as the contract was for the benefit of the infant, he should not be

permitted to avoid it before the expiration of the term, or if he did, he should be subject to like forfeiture of the wages earned, as persons of age would be.

Suppose an infant were to contract to go a voyage on the usual terms, and during the voyage the ship should lose her freight by the perils of the seas, whereby the seamen would lose their wages, shall the infant be permitted to consider the contract void, and sue for his wages, as upon a quantum meruit for labor and services done?

In Rex v. Evered, Cald. Sett. Cas. 26, where an infant bound himself as an apprentice by indenture, but not according to the Stat. 5 Eliz. ch. 4, s. 26, and ran away, the court said, that it had been adjudged, that an infant might bind himself for his own benefit; but in that case they discharged him on another ground.

In Rex v. Inhabitants of Hindringham, 6 T. R. 557, where an infant bound himself an apprentice by indenture, which was not according to the statute, and afterwards went into the King's service, as a sailor with the consent of his master, it was held that this act did not avoid the indentures. And Lord Kenyon said, 'I desire it may not be taken for granted, that an infant who binds himself an apprentice, a contract so notoriously for his benefit, may put an end to the contract at any time during his minority. I enter my protest against discussing that question now; it will be sufficient to determine it when it necessarily arises.' But see Ex parte Gill. 7 East, 376.

And in Ashcroft v. Bertles, 6 T. R. 652, which was case against a person for harboring an apprentice, it appeared, that the infant bound himself, as an apprentice by void indentures, and afterwards left his master's service and went to the defendants, who refused to part with him. At the trial before Heath J. the learned judge doubted, whether the infant might not bind himself at common law, it being for his benefit; but at all events the defendant had no right to contest the validity of the apprenticeship, and a verdict was found for the plaintiff. The court declared themselves satisfied with the verdict, and said that supposing the indentures voidable, which they were not prepared to decide, the quitting of the master's service was not an avoidance of them.

It is observable that these were all cases of apprenticeship,

which is much stronger than the case of mere servants. And in Bac. Abr. master and servant, B. it is laid down, as clear by all the authorities, which he cites, that at common law infants could not bind themselves as apprentices, so as to entitle their masters to an action of covenant against them. And notwithstanding the intimations of the court in the above cases, the strong language of the Stat. 5 Eliz. ch. 4, (which declares all apprenticeships void not made according to that statute) seems to me not to admit of a doubt, that the infant may avoid it. And the same construction is, I apprehend, to be made upon our statute respecting apprentices and servants. (Stat. 28, Feb.

1795.)

I gather also, that the court incline to the same construction by the recent case ex parte Gill. 7 East Rep. 376 in England. See also Cro. Car. 179, Cro. Eliz. 653, Cro. Jac. 494, Com. Dig. Enfant (C. 2.)

But it may be another question, whether infants can avoid their contracts for labor and services upon the usual hirings, although they may not be bound as indented apprentices, unless according to the provisions of the statute.

In Fitz. Nat. Brev. 168, D, under the head of the writ upon the Stat. 23 Edw. 3, respecting laborers and servants, he states it as law, that an infant of twelve years of age shall be bound by his covenant to serve in husbandry. S. P. Bro. Laborers, 51, and Bro. Laborers, 20, which cites 7 H. 4, 5.

So in 9 H. 6, 10, it was conceded by the whole court, that 'if an infant within age make a covenant to serve in an office of husbandry, he shall be bound by his covenant, if it be that he has a reasonable discretion.'

But he shall not be bound if he be under the age of twelve years. F. N. B. 168, D. note b. and 2 H. 4, 18, which is directly in point. And the reason there stated is that he is not arrived at years of discretion, i. e. in that case, (which was of a female) ad nubiles annos.

It would seem, that these decisions were made in reference to the stat. of laborers, 23 Edw. 3, which, among other things, compelled persons to serve in husbandry; but not to become apprentices. Br. Laborers 30, cites 21 H. 6, 33.

The Stat. 5 Eliz. ch. 4 seems to have repealed the Stat. 23 Edw. 3.