prior to his marriage shall be entitled to forty dollars per month upon each one thousand dollars named in his certificate, for each whole month of his membership, provided that the sum shall never exceed three thousand dollars, or so much thereof as shall be realized from one marriage assessment on all the members of this class." It is held that this provision is void for two reasons: 1. It worked an absolute restraint of marriage for three months, which restraint, though partial, was not shown to be reasonable. 2. It operated to the general discouragement of marriage by providing that, upon marriage, after the expiration of three months, the member should be entitled to receive $40 on each one thousand dollars named in the certificate, for each whole month of his membership, that is, during the time he shall remain single.

4. Insurance-Contract Void when not Indemnity.A policy of insurance granted to one who has no interest in the thing insured, is a mere wager, and void.

5.

Marriage Insurance Contracts.-Accordingly, a marriage insurance contract, such as above described, taken out by one person in favor of a person to whom he is not related by affinity or consanguinity, and with whom he has no business relations, and in whose marriage he has no personal interest, is a mere speculative contract and void.'

6. Illegal Contracts-No Recovery upon the Common Counts.-Where parties have entered into an illegal contract, and one has paid money under it, and sues to enforce it, the law will neither aid him in enforcing it, nor in recovering back the money which he has paid under it, the principle being that in such cases the parties are in pari delicto, and the law will leave them where they have placed themselves. In an action to enforce such a contract the plaintiff cannot therefore recover, under the common counts in his declaration, any money which he may have paid to the defendant under it.

CLOPTON, J., delivered the opinion of the court: The special counts of the complaint declare on a contract, called a "marriage insurance policy," issued by the Equitable Nuptial Benefit Union, which is averred to be a corporation, duly incorporated under the laws of this State. The question of the validity of the contract was made by demurrer to the special counts; the causes assigned being, that it is in the nature of a marriage brokerage contract; is in restraint of marriage; and is in the nature of a gambling contract.

A marriage brokerage contract is an agreement for the payment of money, or other compensation, for the procurement of a marriage. Although they may not be a fraud on either party, such contracts are held to be void, and a public mischief, forasmuch as they are calculated to bring to pass mistaken and unhappy marriages, to countervail parental influence in the training and education of children, and to tempt the exercise of an undue and pernicious influence, for selfish gain, in respect to the most sacred of human relations. An essential element in such contract is, the procurement of a marriage oftentimes without regard to the wishes of friends or parents, or to the happiness of the parties most deeply interested. There is no such element in the contract sued on; nor is there anything in its nature that contemplates

compensation for the negotation or procurement of any particular marriage. By the contract, it is agreed to pay an amount of money upon the contingency of marriage, but leaves the party in the exercise of entire freedom as to the person with whom he may propose to contract marriage. While in view of the conclusion at which we have arrived, it is unnecessary to decide this question, we have said this much, it being presented by the record, to exclude any inference that in our opinion the contract is obnoxious to this objection.

Without extending this opinion by an unnecessary attempt to consider the different and variant applications of the rules determining the illegality of contracts, and of conditions annexed to gifts or testamentary dispositions in restraint of marriage, we shall refer to those rules that have been generally accepted and recognized. Subject to modifications and limitations by the application of other special rules, dependent upon the facts, whether the condition be precedent or subsequent, or whether there is a gift over, or whether the property be real or personal, all conditions in deeds or wills, and all contracts, executory or executed, that create a general prohibition of marriage, are contrary to public policy, and to "the common weal and good order of society." The rule rests upon the proposition that the institution of marriage is the fundamental support of national and social life, and the promoter of individual and public morality and virtue; and that to secure well-assorted marriages, there must exist the utmost freedom of choice. Neither is it necessary there shall be positive prohibition. If the condition is of such nature and rigidity in its requirements as to operate a probable prohibition, it is void.

On the other hand, conditions in conveyances, or annexed to legacies and devises, in partial restraint of marriage, in respect to time, or place, or person, if reasonable in themselves, and do not virtually and practically create an undue restraint upon the freedom of choice, are not void. Says Judge Story: "But the same principles of public policy which annul such conditions when they tend to a general restraint of marriage, will confirm and support them when they merely preserve such reasonable and prudent regulations and sureties as tend to protect the individual from those melancholy consequences to which an over-hasty, rash, or precipitate match would probably lead." 1 Story Eq. Jur., § 281.

The want of harmony in the adjudged cases does not arise from any ambiguity in the rule itself, but from its comprehensive terms, inasmuch as the application of the rule to the facts of each particular case is submitted to the sound discretion and judgment of the court. The courts apply it, according to their estimation of the relative necessity and importance of preserving the largest liberty in the formation of marital alliances, on the one hand and, on the other, of upholding the prerogative of the dispenser of bounty to dictate the terms upon which its enjoyment shall commence or contiuue,

and of the right of persons competent to contract to fix the terms of their agreement, so far as may be consistent with the public weal. 2 Lead. Cas. in Eq. 420; Maddox v. Maddox, 11 Grat. 804; Morley v. Rennoldson, 2 Hare, 571; Williams v. Cowden, 13 Mo. 211; 2 Story. Eq. Jur. § 933; Coppage v. Alexander, 38 Am. Dec. 156 (note). Under the operation of this rule, conditions restraining marriage without consent of parents, guardians or executors, or under twenty-one, or other reasonable age, or with particular persons, are held to be valid; and conditions not to marry a man of a particular profession, or that lives in a named town or county, or who is not seized of an estate in fee, are held to be too general, and void. Collier v. Slaughter, 20 Ala. 263; Stackpole v. Beaumont, 3 Ves. 89; Younge v. Furse, 8 D. M. & G. 756; Scott v. Tyler, 2 Bro. C. C. 431, 488.

It is true, these instances of the application of the rule are, in cases of conditions, annexed to gifts, devises or legacies; but illustrate that the condition will be sustained, when it is in the exercise of due and reasonable precaution against rash or improvident marriages. But if it is an evasion of the law, or a cover to restrain marriage generally, or is in terrorem, the condition will be declared void. The present is the case of a contract, and these illustrations are helpful only to the extent that contracts in restraint of marriage are dependent upon the same principles.

The charter of "the Equitable Nuptial Benefit Union" declares "the object of the association is to unite acceptable young people in such a way as to endow each with a sum of money, not to exceed six thousand dollars, to be paid at marriage as endowments, according to the regulations adopted." It proposed to accomplish this ostensibly laudable object by the issuance of certificates of membersnip. The one issued in this case contains, among others, the following provisions:

"No member will be entitled to any benefit whatever, who marries in less time than three months from the date of his certificate. Every member who shall have been in good standing as a member for at least three months prior to his marriage, shall be entitled to forty dollars per month upon each one thousand dollars named in his certificate, for each whole month of his membership, provided that the sum shall never exceed three thousand dollars, or so much thereof as shall be realized from one marriage assessment on all the members of this class."

The restraint of marriage is partial. The counsel for plaintiff insist that the restraint is reasonable, not forbidding marriage, but postponing it, with the consent of the applicant for membership, to a period when it can presumably be made to greater advantage; and therefore should be held valid, by analogy to similar provisions in gifts or testamentary dispositions. No circumstances are proved to show the reasonableness of the restraint. This must be ascertained from the certificate of membership, without the aid of extrinsic and sur

rounding facts and circumstances. Looking at the certificate, we are forced to the conclusion, that the restraint of marriage for three months is, not for the benefit or advantage of the applicant, but to enable the association to realize a benefit fund, and to keep the applicant in a condition to contribute thereto, by the payment of dues and assessments.

In Hartley v. Rice, 10 East. 22, Lord Ellenborough, C. J., says: "On the face of the contract its immediate tendency is, as far as it goes, to discourage marriage; and we have no scales to weigh the degree of effect it would have on the human mind. It is said, however, that the restraint is not to operate for an indefinite period, but only for six years, and that there might be reasonable grounds to restrain the party for that period. But no circumstances are stated to us to show that the restraint was reasonble; and the distinct and immediate tendency of the restraint stamps it as an illegal ingredient in the contract." And in Sterling v. Sinnickson, 2 South. 756, where the action was on a sealed bill to pay one thousand dollars, provided the obligee was not lawfully married in six months, Kirkpatrick, C. J., after stating the general principal that all obligations restraining marriage generally, are void, says: "And I find no case but in that of legacies, (with one exception of a gift), that gives validity to an instrument when made in contradiction to the principle first mentioned. And the principle of time, place and person appears to apply to legacies only, unless for a good consideration."

It is not stated that there existed any relation between the applicant and the plaintiff, or the association, that would or could have moved either the plaintiff or the association, to impose the restraint from prudential motives in favor of the applicant. A person, having an interest, arising from relationship or close friendship, may, by conditions of partial restraint in gifts or legacies, guard and protect inexperienced youth against rash and improvident marriages; and the husband may restrain his widow in the interest of his children, but, as is added in some of the cases, "this could not be done by a stranger."

In Chalfant v. Payton, 91 Ind. 202, a certificate of membership, issued by "the Immediate Marriage Benefit Association," was held to be contrary to public policy, and illegal-the contract being to pay a sum of money on condition that the member does not marry within two years, and on marriage thereafter to pay a certain sum per day during the time he shall remain unmarried. It may be said that the time of restraint by the contract sued on, is for a much shorter period. By what rule, in the absence of special facts and circumstances, can the reasonableness of the time of restraint be measured? By what scales can the degree of its effect upon the mind of the applicant be weighed? Where a parent restrains the marriage of a child, or a friend prohibits it, the restraint, without the

consent of parents or guardian, until an age at which the child is competent to contract without such consent, does not violate, but is in furtherance of the policy of the law. But when a stranger, withont any interest or motive, except for selfish gain, enters into a contract restraining the marriage of another for a definite period of time, the contract, pro tanto, violates public policy.

If there were no provision other than the restraint for three months, a doubt as to its illegality might reasonably be entertained; but the restraint for three months is not the full scope of the con tract. To obtain a clear comprehension of its nature and tendency, another provision must be observed. The certificate not only makes the payment of the money conditioned on not marrying in less than three months, but provides that upon marriage after the expiration of three months, the member shall be entitled to receive forty dollars on each one thousand dollars named in the certificate, for each whole month of his membership; that is during the time he remains single. Thus the contract contains an inducement to postpone marriage indefinitely, although the member contemplates its consummation at some future uncertain time; for the longer the marriage is postponed, the larger is the sum to be paid. The amount which the member will be entitled to receive is conditioned on the length of time marriage is deferred. This inducement, in connection with the restraint for three months, may have the effect to operate an indefinite postponement; and, as there is no limit, within which the member shall marry, it may operate a general restraint.

Insurance, being an indemnity against loss or risk, is not intended for the benefit of persons having no concern in the subject-matter, nor any interest in the event. In Helmetag v. Miller, it is said: "No principle of the law of life insurance is, at this day, better settled than the doctrine, that a policy, taken out by one person upon the life of another, in which he has no insurable interest, is illegal and void, as repugnant to public policy.

* Such contracts are aptly termed wager policies, and are entitled to no higher dignity in the eye of the law, than gambling speculations or idle bets as to the probable duration of human life." The same principle, that where there is no insurable interest the policy is invalid, pervades the law of all kinds of insurance. At an early period, marine insurance policies, without interest. were considered as innocent wagers; but now, such policies are held to be void, as contravening the cardinal object of insurance, indemnity against loss, and as being dangerous and demoralizing by tempting the insured, having nothing to lose but everything to gain, to bring to pass the event, upon the happening of which the insurance becomes payable, May on Ins. 875. Although the certificate is not properly a policy of insurance, an application of these principles will enable us to arrive at a satisfactory conclusion as

to the character of the contract, when considered in the light of the attendant circumstances.

Vandeventer, at the time of making the application, in response to questions propounded, named the plaintiff as the person, to whom the benefit should be paid, and to whom notices of dues and assessments should be sent for. payment. There was also an agreement that plaintiff would pay all dues and assessments, which he did, and Vandeventer should receive one third of the proceeds of the certificate when collected, after deducting expenses. It is manifest that, while Vandeventer made (the application personally, and is the nominal member, he was the mere instrument to procure the certificate, and that the contract was made really for the benefit of the plaintiff. It must be regarded as virtually and substantially a contract with him.

The plaintiff, not being related to Vandeventer by affinity or consanguinity, and having no business relations with him whatever, had no personal interest in his marital relations. It was speculation on the part of the plaintiff, without interest, upon the probability of Vandeventer's marriage, as the plaintiff tersely characterized it in his testimony, "a speculation in marriage futures." Such contract is disfavored and disapproved by the law in the interest of the common weal, of good order and general public policy. It subjects the plaintiff to a temptation, for pecuniary advantage, to promote and procure the marriage of Vandeventer, at some future period, by which the plaintiff has nothing to lose. Upon analogous principles in cases of insurance, such contract is, in its nature, a wager contract. Chalfant v. Payton, supra.

It is further contended, that if the contract is illegal, the plaintiff is entitled to recover, under the common courts the sum of the dues and assessments paid by him especially from Hundley, by virtue of a special promise. The action was commenced originally by process of attachment against three named individuals, among whom is Hundley, who are described in the affidavit preceding the issue of the writ, as "constituting the Equitable Nuptial Benefit Union, organized under the laws of Alabama." In the margin of the complaint, subsequently filed, the parties are stated in the same manner; but the body complaint reads: "The plaintiff, Alexander L. White, claims of the defendant, the Equitable Nuptial Benefit Union, a corporation composed of the defendants, Oscar R. Hundley, William A. McNeely and Alexander Erskine, Jr., and duly incorporated under the laws of Alabama." The individuals named in the margin as defendants, are mentioned in the body of the complaint, which controls the marginal statement, merely as composing the alleged corporation-descriptio persona. Filing such complaint, and going to trial thereon, operated a discontinuance of the suit against them as individuals, and converted it into an action against the corporation as the sole defendant.

The court will not lend its aid to either party for the enforcement of an illegal, executory contract, in an action to recover for its non-execution; and, where a contract contravening good morals or public policy has been fully and voluntarily executed, and the parties are in pari delicto, the court will not interfere with the acquired rights of either at the instances of the other. Hill v. Freeman, 73 Ala. 200. The claim of the plaintiff to recover the dues and assessments paid falls within this rule.

Affirmed.

OFFICER-VALIDITY OF ACTS PERFORMED BY A DEPUTY IN HIS OWN NAME.

WESTBROOK v. MILLER.*

Supreme Court of Michigan, Jan. 28, 1885. Tax Deed-Execution by Deputy Auditor General.A tax deed is not invalid because executed by a deputy auditor general in his own name.

Error to Bay.

Avery Brothers for plaintiff, appellant; Luther Beckwith, for defendants.

COOLEY, C. J., delivered the opinion of the court:

This is an action of trespass quare clausum. Upon the trial the validity of a tax deed 1 was

1 This indenture,made the ninth day of February, in the year of our Lord one thousand eight hundred and eighty-three, between-Hubert R. Pratt, deputy auditor general of the State of Michigan, of the first pert, and John M.Hoffman, of Port Huron, Michigan,of the second part, witnesseth: That whereas, in pursuance of the provisions of law, the said party of the second part did, on the ninth day of February, A. D. 1883, become the purchaser of the rights of the State in and to the following described lands, situate in the County of Bay, in said State, which were bid off to the State for taxes assessed thereon in the years 1872, 1873,1876, 1877, 1878, 1879 and 1880, to-wit: north half of southwest quarter section thirty-three, town nineteen north, of range four east, containing eighty acres, more or less; and whereas, the said party of the second part obtained certificates from the auditor general for the purchase of the above-described lands according to law, and paid to the State treasurer, upon such certificate, the sum of fiftysix dollars and forty-six cents, being the amount of purchase money thereof as provided by law, which certificates have been presented and surrendered to the said auditor general:

Now, therefore, this indenture witnesseth: That the said Hubert R. Pratt, deputy auditor general of the said State of Michigan, in the name of the people of said State, and by virtue of the authority vested in him by the law thereof, in consideration of the premises, and the payment of the purchase money above mentioned, the receipt whereof is hereby confessed and acknowledged, does, by these presents, remise, release, and quitclaim unto the said John M. Hoffman, party

* S. c., 22 N. W. Rep., 256

brought in question, and the circuit judge ruled that it was invalid. The only question raised on the record in this court concerns the correctness of this ruling.

The reason for holding the deed invalid was that it was executed by the deputy auditor general in his own name, when, if executed by him at all, it should have been executed in the name of his principal. The statute provides that "the auditor general may appoint a deputy, for whose acts he shall be responsible, and may revoke such appointment at pleasure; and such deputy may execute the duties of the office during the sickness or necessary absence of the auditor general." How. St. § 283. It is one of the duties of the auditor general to execute deeds to carry into effect sales of State tax lands. Public Acts 1881, p. 272. A similar statute respecting the powers and duties of the deputy auditor general has been in existence in this State for many years, and we may take judicial notice that it has been construed in the office of the auditor general as authorizing the deputy to act in his own name when the circumstances exist which authorize him to act at all. A great many deeds have been executed in this manner, and other acts done which are open to question on the same ground. The case is, therefore, one upon which it is probable that large interests depend.

If the question were entirely new, and were presented as a question as to the most proper and correct method of executing the duty by the deputy, we should say, unhesitatingly, that the proper method would be for the deputy to perform the act in the name of his principal. But this is a matter of form rather than that of substance, and the rights, neither of the State nor of any individual, are greater or less because of one form being adopted rather than the other. The objection to a deed executed as this is, even if valid, is purely technical, and if sustained, it must be upon grounds that in no way affect the merits. A similar objection to the acts of other deputies has been several times made in this State. In Calendar v. Olcott,1 Mich.344,a deputy county clerk had issued in his own name a writ of summons. The statute empowered the deputy, in the absence of the clerk from his office or from the court, to perform all the duties of the office; and this was held sufficient authority for him to act in his own name. In Wheeler v. Wilkins, 19 Mich. 78, a return by a deputy-sheriff in his own name was held, on the

of the second part, and to his heirs and assigns, for(ver, all the rights acquired by the State in virtue of the original sale or sales to the State in the premises above described, subject to all taxes duly assessed thereon.

In testimony whereof, the said Hubert R. Pratt, deputy auditor general as aforesaid, has hereunto set his hand and seal the day and year first above written. [Signed] HUBERT R. PRATT, Deputy Auditor General of the State of Michigan. (Duly witnessed and acknowledged.)

authority of Calendar v. Olcott, to be sufficient. People v. Johr, 22 Mich, 461, raised the question whether the indorsement and recording of a county treasurer's bond by the deputy auditor general was sufficient; and the court disposed of it shortly by saying: "As to the indorsement of S. D. Bingham, deputy auditor general, he being a State officer known to the law, we are bound to take judicial notice that he was such officer, and the indorsement or certificate by him has the same force and validity as if signed by the auditor general himself. This shows an approval and acceptance by the auditor general." Page 464.

These cases would seem to settle the question now raised. They are all decided upon statutes which, under specified circumstances, give to deputies the power to perform the duties pertaining to the office of their principals, and a decision under one statute is authority for a like decision under any other. But if, as a new question, the practice were one of doubtful validity, yet having continued for many years under a construction of the statute by the proper executive department of the government, and affecting, as has been said, matter of form only, it ought not now to be disturbed or called in question. The practical construction of the statute has done no mischief, and it should now be accepted as correct. When, in the performance of executive duties, it becomes necessary for the executive department to construe a statute, great deference is always due to its judgment; and the obligation is increased by the lapse of considerable time before its acts are called in question. This has been several times held by the Federal Supreme Court, and by the subordinate courts of the Federal system, and a reference to a few of the cases will be sufficient to show the current of decision. McKeen v. Delancy, 5 Cranch, 22; Surgett v. Lapice, 8 How. 48, 71; Bissell v. Penrose, 8 How. 317; Union Ins. Co. v. Hoge, 21 How. 35, 66; United States v. Gilmore, 8 Wall. 330; United Stated v. Pugh, 99 U. S. 265, 269; United States v. Lytle, 5 McLean, 9; Hahn V. United States, 14 Ct. Cl. 305; Swift v. United States, 14 Ct. Cl. 481. It was also held by this court in the case of Malonny v. Mahar, 1 Mich. 26, where the question was whether a deputy county treasurer had authority to administer a certain oath in the place of his principal, and also in the subsequent case of Britton v. Ferry, 14 Mich. 53. The case of Continental Imp. Co. v. Phelps, 47 Mich. 299, 303, s. c. 11 N. W. Rep. 167, rests in part on the same principle. The cases in other States which hold the same doctrine are too numerous for citation, but as they all rest upon the inconvenience that would arise from unsettling what in good faith has been done in the necessary discharge of public duty, many citations would only serve to show the frequency in which the occasions for the application of the principle arose. As we have recognized and acted upon the principle heretofore, we may well leave his case to rest upon our previous decisions.

The rule which favors the acceptance of a practical construction of statutes has its limits, and must not be suffered to defeat the manifest purpose of the legislation. Matter of Manhattan Sav. Inst. 82 N. Y. 142. But in this case the practical construction gives effect to the legislative intent nothing but the form of doing so being called in question. It is objected that it does not appear in this case that the circumstances existed which authorized the deputy to act, namely, that the auditor general was sick or necessarily absent. This objection, if available here, would have been equally so in People v. Johr, 22 Mich. 461, in which the presumption in favor of the correctness of official action was held to support the act done. A new trial must be ordered. (The other justices concurred.)

1. EVIDENCE.-Circumstances under which Declarations are Admissible to Prove Pedigree.-On the question of pedigree, declarations are admissible, (1) When it appears by evidence dehors that the declarant was lawfully related by blood or marriage to the person or family whose history the facts concern. (2) That the declarant was dead when the declarations were tendered, and (3) That they were made ante litem motam.

2. Declarations of Deceased Sister, when Admissible. Thus, in determining who are the rightful distributees of an intestate estate, the declarations of the intestate's sister (since deceased) in whose family the claimant was not only born and brought up, but in which the intestate herself also lived when the claimant was born, and for several years thereafter, are admissible, when made ante litem motam for the purpose of showing that the claimant was the natural son of the intestate, who had not then been married.

On exceptions.

An appeal from the decree of the judge of probate.

The opinion states the case.

Nathan and Henry B. Cleaves, and M. P. Frank, for the plaintiff; Drummond & Drummond, and Clarence Hale, for the defendant.

VIRGIN, J., delivered the opinion of the court: This is an appeal from a decree of the judge of probate, wherein he ordered a distribution of an intestate estate, and adjudged, against the claim of the appellant, that he was not the natural son of the intestate, but was the legitimate son of the intestate's sister.

In the Supreme Court of probate to which the appeal was taken, the same question was submitted to a jury who found against the appellant.

At the trial of the issue it appeared inter alia

*S. c., 76 Me. 306 (adv. sheets).