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alleged to exist have now passed away. Hence the necessity of separating the mother and child has ceased to exist.

It is also claimed by respondent, that, when the mother placed the child in this institution, she promised that she should remain there until she was eighteen years old, and 421 that for that reason he is now estopped from demanding her custody. There are some cases which hold, that, where a child of tender years is given by a parent to another person, the parent cannot afterward assert his right to the control and custody of the child. But this rule is founded on the tender and humane idea that by reason of the long and intimate intercourse between the child and the foster parent a reciprocal affection has sprung up which ought to be respected, and which it would be cruel and heartless to interfere with by a forced separation. But no such principle can apply here. The respondent in this case is a corporation; it is controlled and its business is done by officers who are constantly changing-at least, who may be constantly changing. It is a universally accepted proposition that a corporation has no soul. It is not disturbed in any of its operations by sentiment, and cannot, therefore, be allowed to plead a senti mental wrong.

Under all the circumstances of the case we think that the writ should have been sustained. The judgment will, therefore, be reversed, and the cause remanded with instructions to award the custody of the said Maggie Lovell to the appellants.

STILES and ANDERS, JJ., concur.

HOYT and SCOTT, JJ., concur in the result.

PARENT AND CHILD-RIGHT OF PARENTS TO CUSTODY OF MINOR CHILD.— It is the strict legal right of the parents and those standing in loco parentis to have the custody of their infant children as against strangers; but the court will not regard this as controlling when it would imperil the personal safety, morals, health, or happiness of a child: Richard v. Çollins, 45 N. J. Eq. 283; 14 Am. St. Rep. 726, and note. A father is prima facie entitled to the control of his minor child, and before this right can be taken away the reasons for doing so must be obvious and satisfactory, and estab lished beyond doubt: Miller v. Wallace, 76 Ga. 479; 2 Am. St. Rep. 48, and note. When a father is a suitable person he is entitled to the custody of his minor child, but, if a sufficient reason exists why he should not have its custody, it will be given to others better fitted: Brooke v. Logan, 112 Ind. 183; 2 Am. St. Rep. 177, and extended note. For a further discussion of this question, see the recent cases of Cunningham v. Barnes, 37 W. Va. 746; 38 Am. St. Rep. 57, and note; and Marshall v. Reams, 32 Fla. 499; 37 Am. St. Rep. 118, and note.

MCKENZIE V. PUGET SOUND NATIONAL BANK.

[9 WASHINGTON, 442.]

STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.-An agreement by a creditor to forbear the enforcement of his debt is not a sufficient consideration to support an oral promise of a third person to pay that debt, although such third person makes the promise for the purpose of subserving and promoting his own pecuniary interests.

STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.-A consideration to support an oral promise to pay the debt of another to be valid must be of a peculiar character, and must operate to the advantage of the promisor, and place him under a pecuniary obligation to the promisee independent of the original debt, which obligation is to be discharged by the payment of that debt.

Strudwick & Peters, for the appellant.

Carr & Preston and W. R. Bell, for the respondent.

443 SCOTT, J. The material allegations of the complaint in this case are, that, on the first day of August, 1890, one Almond was indebted to the plaintiff in the sum of fourteen hundred and twenty-five dollars, and that said Almond, doing business under the name of Almond & Phillips Foundry Company, was indebted to 444 defendant in the sum of fourteen thousand dollars, and that said Almond was then the owner and in possession of a certain leasehold interest in and to certain premises described, and was the owner of a certain foundry and machine-shop plant of the value of thirty thousand dollars. The fifth and sixth paragraphs of the complaint are as follows:

"5. That on the twenty-first day of August, 1890, the said Charles H. Almond, doing business as aforesaid, conveyed to one Jocob Furth, the cashier and manager of the defendant, for the use and benefit of defendant, all of said plant, property, stock on hand, lease, and accounts, and the defendant accepted the same and went into the possession thereof, through one G. L. Faust, who became and was appointed by defendants its general agent and manager in that behalf."

"6. That said defendant took and accepted said conveyance and assignment, and entered into the possession of said property, with a view and intention of paying off and discharging all the debts of said C. H. Almond, for the purpose of subserving and promoting its own pecuniary and business interests; and said defendant proposed, for the purpose afore

said, to the plaintiff and others of the creditors of said C. H. Almond, that if said creditors would forbear the collection of their said debts against said C. H. Almond, and would accept payment thereof from defendant in deferred installments, that defendant would pay off and discharge said debts, and plaintiff and others of said creditors of said C. H. Almond accepted said proposition of defendant and forbore the collection of their said debts."

The court sustained a demurrer to the complaint, and plaintiff appealed.

We are of the opinion that the demurrer was well taken, on the ground that the promise alleged was void under the statute of frauds, it being conceded that it was not in writing. A logical construction of the complaint is that Almond transferred said property to the defendant in consequence of his indebtedness to the defendant, and that the 445 promise made by defendant to plaintiff was made after the execution. of said conveyance and delivery of the possession of the property, and was no part of the consideration for said transfer.

The great weight of authority, certainly, is to the effect that the agreement of a creditor to forbear the enforcement of his debt is not a sufficient consideration to support an oral promise of a third person to pay that debt, and this is not disputed by the appellant; but he contends that the promise was made for the purpose of subserving and promoting respondent's own pecuniary business interests. The most favorable construction that can be put upon the allegations of the complaint in this respect is, that defendant was of the opinion that the payment of Almond's indebtedness to the plaintiff would subserve the defendant's interests. That the defendant had an idea that such payment would benefit it in some way, although what it was founded upon is not apparent. Yet this was not the consideration for the promise, nor any part of it. The bank already had the property, and had made no promise to pay the plaintiff's debt to obtain it. The obligation, if any, upon the part of the defendant to pay the plaintiff's claim arose only upon its promise made to the plaintiff. The consideration for said promise was the forbearance of the plaintiff to proceed against Almond. The promise would have been sufficient to sustain the action were it not for the statute. Any promise to pay, whether in writing or not, must be founded upon a consid

eration to be binding. A consideration to support a promise, not in writing, to pay the debt of another must be of a peculiar character, and must operate to the advantage of the promisor, and place him under a pecuniary obligation to the promisee independent of the original debt, which obligation is to be discharged by the payment of that debt: Ackley v. Parmenter, 98 N. Y. 425; 50 Am. Rep. 693; Cross v. 446 Richardson, 30 Vt. 641. Almond's debt to the plaintiff was not discharged by this promise, but remained in force. Affirmed.

STILES, ANDERS, and HOYT, JJ., concurred.

STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER-FORBEARANCE AS CONSIDERATION.—A verbal promise to pay the debt of another, given in consideration of a forbearance to attach the property of the debtor, to which neither the promisor nor the creditor has any right, lien, or title, is void under the statute of frauds: Stewart v. Jerome, 71 Mich. 201; 15 Am. St. Rep. 252, and note. An oral promise by a third person to pay accruing rent, if the landlord will forbear the eviction of the tenant for a certain period, is within the statute of frauds, and void as a mere promise to pay the debt of the tenant: Riegelman v. Focht, 141 Pa. St. 380; 23 Am. St. Rep. 293, and note; and so is a promise to pay the debt of another in consideration of the plaintiff's forbearing to proceed on his execution: Durham v. Arledge, 1 Strob. 5; 47 Am. Dec. 544, and note; and likewise with a promise to pay a judgment against another if the creditor would extend a certain forbearance to the debtor: Allshouse v. Ramsay, 6 Whart, 331; 37 Am. Dec. 417.

STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER-SUFFICIENCY OF CONSIDERATION.-If the leading object of a party who promises to pay the debt of another is to promote his own interests, such promise, if made on a sufficient consideration, is valid, though not in writing: Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571, and note. A verbal promise to pay the debt of another is within the statute of frauds, unless it is in effect substituted for the original liability: Brant v. Johnson, 46 Kan. 389. This subject is fully discussed in the extended note to Packer v. Benton, 95 Am. Dec. 251.

ALLEN V. HIGGINS.

[9 WASHINGTON, 446.]

EJECTMENT-PLEADING-PRIMA FACIE CASE-Under a statute requiring the defendant in ejectment to plead the estate or license, under which he holds possession, an answer by way of general denial creates no issue under which evidence of his title is admissible, and, if the plaintiff pleads and proves any legal title to the premises, he thereby establishes a prima facie case. COTENANCY-EJECTMENT AGAINST STRANGER.-A tenant in common is, as against every person but his cotenant, entitled to the possession of every part of the common land, and may recover such possession in an action of ejectinent brought against a stranger to the common title. John P. Judson, for the appellant.

B. Sheeks and C. H. Dillon, for the respondent.

446 DUNBAR, C. J. This is an action of ejectment. The complaint alleged that the plaintiffs were the owners, seised in fee and entitled to the possession of the tract of land in dispute; that while they were such owners, and so seised and possessed, and entitled to the possession, defendant, without right, entered into and upon the same, thereby ousting and ejecting plaintiffs therefrom, and continued to 447 withhold possession therefrom; alleged the damages, value of the rents, profits, etc. The answer was a general denial. The plaintiffs claimed title from two sources, one as the successors of the interest of George Luviney, and the other by conveyance from the "Workingmen's Joint Stock Association." Defendant did not offer any evidence. The question therefore, is, Did plaintiffs make a prima facie case?

Appellant contends that a general denial puts in issue every material allegation contained in the complaint, and that under such denial plaintiffs must prove every fact essential to recovery, and defendant may prove any facts which defeat plaintiffs' right to recover. Under the provisions of our Code of Procedure, section 532, in an ejectment proceeding, "the defendant shall not be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof, unless the same be pleaded in his answer"; and "if so pleaded, the nature and duration of such estate, or license, or right to the possession shall be set forth with the certainty and particularity required in a complaint." Consequently, the testimony offered in this case was inadmissible under the pleadings in this

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