East London Water Works Co. v. Bailey, Id. 283. This distinction, however, has been questioned in a subsequent case: Church v. Imperial G. L. Co., 6 Ad. & El. 846; S. C., 33 Eng. Com. L. 443. But in questions in regard to the mode of the exercise of corporate powers, where rights have accrued under their acts, we think, in frequent instances, the distinction is a sound one.

The charges given in the court below, were, in our view, erroneous; the judgment is therefore reversed, and a new trial awarded.

Judge THACHER gave no opinion, having been of counsel in the case.

EFFECT OF USURY WHERE CONTRACT IS RENEWED: See note to Raynolds v. Carter, 37 Am. Dec. 642, referring to other cases in this series.

WHAT TRANSACTIONS ARE USURIOUS, GENERALLY: See note to Raynolds v. Carter, 37 Am. Dec. 642; Holmes v. Williams, 40 Id. 250, and notes referring to previous cases in this series.

APPROVAL BY CORPORATION OF ACTS OF ONE ACTING AS ITS AGENT makes those acts as valid as though authorized in the first instance: Leggett ▼. N. J. M. & B. Co., 23 Am. Dec. 728; Frankfort St. Co. v. Churchill, 17 Id. 159; Everett v. United States, 30 Id. 584. See also Despatch Line v. Bellamy Mfg. Co., 37 Id. 203.

HARPER V. ARCHER,

[4 SMEDES AND Marshall, 99.]

CAUSE WILL BE DISMISSED ON ACCOUNT OF DEFECT IN APPEAL BOND whereby it is made payable to the parties, instead of the judge of probate. In such a case the jurisdiction of the appellate court does not attach. Therefore, all that can be done is to strike the cause from the

docket. INFANT IS IN ESSE FROM THE TIME OF CONCEPTION for the purpose of tak ing any estate which is for his benefit, whether by descent, devise, or under the statute of distributions, provided, however, that the infant be born alive and after such a period of fœtal existence that its continuance in life might be reasonably expected.

PETITION by the guardians of S. E. Archer for his distributive share in the estate of his half-sister. The petition was answered by the mother of both the children, now Mrs. Harper, who denied relationship between the children, as the half-sister had died eight months and twenty-one days before the birth of S. E. Archer. The court decreed in favor of the petitioner, the defendants appealed, executing an appeal bond to the guardians. J. B. Thrasher, for the appellants.

By Court, CLAYTON, J. This cause will have to be dismissed on account of a defect in the appeal bond. It is an appeal from the probate court of Claiborne county, and the bond is made payable to the parties, instead of the judge of probate, as required by the statute. Twelve months ago we decided that, in such case the jurisdiction of this court did not attach, and that all we could do was to strike the cause from the docket: Whiting v. Green, not reported. A similar course must be pursued on the present occasion. But as we had examined the points made in argument, before this defect was perceived, it may save the parties future costs and litigation, if we state the result of that examination.

The question as to the relative rights of husband or wife surviving upon the death of either, was so fully discussed in the case of Wade v. Grimes, 7 How. 425, that we shall content ourselves with a bare reference to it, so far as that point is involved. The right of the infant petitioner to a distributive share of the estate of his half-sister, is the prominent question in the cause. He was born eight months and twenty-one days after her death, and the point of inquiry is, whether he was at that time in existence, so as to enable him to take. Nine months is the usual period of gestation, and we think it right to place the commencement of fœtal existence to that period before birth. It was formerly a question at what time the embryo might be said to be alive, and quickening was selected as the surest test of life, and the earliest point of time at which it could be deemed to be in existence. But it is now settled, both in England and in this country, that from the time of conception the infant is in esse, for the purpose of taking any estate which is for his benefit, whether by descent, devise, or under the statute of distributions, provided, however, that the infant be born alive, and after such a period of fœtal existence that its continuance in life might be reasonably expected. A premature birth would not be regarded as of a character to give completeness to the inchoate right: Marsellis v. Thalhimer, 2 Paige, 35 [21 Am. Dec. 66]; Swift v. Duffield, 5 Serg. & R. 38; 4 Kent's Com. 248; Wallis v. Hodson, 2 Atk. 117; Wms. Ex. 1066; Chit. Med. Jur. 403; Beck. 317.

We are of opinion, therefore, that in this case the infant was entitled to take. The case, however, must be stricken from the docket, but the parties will have right to bring it up by writ of error, if they choose so to do.

Cause dismissed for want of jurisdiction.

CHILD IN VENTRE SA MERE, WHEN REGARDED AS IN ESSE.-Lord Chancellor Hardwicke, in Ellison v. Airey, 1 Ves, sen. 111, said that courts would not adjudge lands to go to a child in ventre sa mere unless it appeared to be so intended from the words of the will. There are other early cases holding the same doctrine, and according to these such an unborn child is not regarded as in esse: Bennett v. Honywood, Amb. 708; Pierson v. Garnet, 2 Bro. C. C. 38; Cooper v. Forbes, 2 Id. 63 (the court relying on Ellison v. Airey and Pierson v. Garnet); Freemantle v. Freemantle, 1 Con. Ch. Cas. 248; Musgrave v. Parry, 2 Vern. 710. In Nurse v. Yerworth, 3 Swans. 608, it was said that such an infant could not take by purchase the legal fee under a devise to heirs, but was entitled in equity, by virtue of the apparent intention, to the trust of a term attendant on the inheritance, though merged at law; and the court in that case also drew a distinction between the case where the child was just conceived and where the mother was quick with child, saying: "The difference is rational and just where the wife is privement enceinte and where grosment enceinte; if the embryo be not yet partus formatus, there ought to be words of clear description to include him; and that because the testator may reasonably be presumed not to intend anything to him he knew nothing of. But where the wife is grosment enceinte, there, unless the words of description do expressly exclude the child, a little matter ought to serve to include him." The statute of 10 and 11 Wm. III., c. 16, provided that in case an estate should be limited in remainder to the lawful issue of the body of any person, that a son or daughter born after the decease of the father may take such estate as if born in his life-time, although there be no limitation to trustees. And other English cases swept away the doctrine and distinctions before referred to, and it is now a rule, established beyond doubt, and recognized by leading text-writers, that a child en ventre sa mere, for purposes of inheritance or where its benefit is to be furthered, is regarded as in esse, and as capable of taking as though born at the time: Bingham on Infancy and Coverture, 104; 2 Redf. on Wills, 3d ed., 68, n.; 4 Kent's Com. 412, n.; Tyler on Infancy and Coverture, 2d ed., 223; 2 Jarm. on Wills, 740, 5th Am. ed.; Wallis v. Hodson, 2 Atk. 115; Doe d. Clarke v. Clarke, 2 H. Bl. 399; Clarke v. Blake, 2 Bro. C. C. 320; S. C., 2 Ves. jun. 673; Rawlins v. Rawlins, 2 Con. Ch. Cas. 425; Scatterwood v. Edge, 1 Salk. 229; Snow v. Tucker, 1 Sid. 153; Trover v. Butts, 1 Sim. & Stu. 181; Long v. Blackall, 7 T. R. 100; Millar v. Turner, 1 Ves. sen. 85; Burnet v. Mann, Id. 156; Thellusson v. Woodford, 4 Ves. jun. 227; S. C., 11 Id. 112; Beale v. Beale, 1 P. Wms. 244; Northey v. Strange, Id. 340; Burdet v. Hopegood, Id. 486; Crook v. Hill, L. R., 3 Ch. Div. 773; Pearce v. Carrington, L. R., 8 Ch. App. 969; Crisfield v. Storr, 36 Md. 129; Groce v. Rit tenberry, 14 Ga. 232; Hall v. Hancock, 15 Pick. 255; Hone v. Van Schaick, 3 Barb. Ch. 488; Mason v. Jones, 2 Barb. 229; Stedfast v. Nicoll, 3 Johns. Cas. 18; Marsellis v. Thalhimer, 2 Paige, 34; S. C., 21 Am. Dec. 66; Jenkins v. Freyer, 4 Id. 47; Petway v. Powell, 2 Dev. & Bat. Eq. 308; Starling v. Price, 16 Ohio St. 29; Swift v. Duffield, 5 Serg. & R. 38; Barker v. Pearce, 30 Pa. St. 173; Laird's Appeal, 85 Id. 339; Smart v. King, Meigs, 149. Thus a child en ventre sa mere is included in the term children: Petway v. Powell; Crook v. Hill; or grandchildren: Smart v. King; and in the term "persons living at the death" of a certain person; Rawlins v. Rawlins; Burdet v. Hopegood; Barker v. Pearce; Groce v. Rittenberry. An injunction to stay waste will be granted in his favor: Wallis v. Hodson, 2 Atk. 115; so he may be vouched; may be an executor; may take under the statute of distributions, by devise, under a charge for portions, and may have a guardian: Thellusson v. Woodford, 4 Ves. jun. 227; he may be appointed executor, and if the mother is delivered of two

children they both may be appointed executors: Bac. Abr., tit. Infancy, c Id., tit. Executors, a, 7; Tyler on Infancy and Coverture, sec. 154. Marriage and the subsequent birth of a posthumous child amount to an implied revocation of a will of lands made before the marriage: Doe d. Lancashire v. Lancashire, 5 T. R. 49. But a bastard child en ventre sa mere is not regarded as in esse, for the reason that a bastard could not take until he got a reputation of being such a one's child, and that reputation could not be gained before the child was born: Metham v. Duke of Devon, 1 P. Wms. 529. And it was held in In re Gardner's Estate, L. R., 20 Eq. 647, where a testatrix bequeathed her estate to her brothers and sisters alike, but directed that the shares should not vest till they respectively attained the age of twenty-one, that a child en ventre sa mere when the eldest attained twenty-one was excluded; that no one except a child born at that time could be included. The court relied on Gimblett v. Purton, L. R., 12 Eq. 431, where it was decided that such a bequest excluded children born after the oldest attained the age of twenty-one; but it may well be doubted whether the principle governing that case can be applied to a child en ventre sa mere when the eldest arrives at majority. This case seems to be opposed to the later doctrine so conclusively settled by cases both English and American.

Swinburne, in his work on wills, vol. 2, p. 562, lays down the general rule as follows: "If we would in this case know whether that man is to be judged to have died without issue, we must consider whether it be for the benefit of the child that the father should be accounted to have died without issue or not; for howsoever the rule be, that he is not said to die without issue whose wife is with child at his death, yet that rule ought to take place when it tendeth to the benefit of the child, not where it tendeth to the prejudice of the child, or only benefit another." On the strength of this rule, it was decided in McKnight v. Read, 1 Whart. 213, that such a child was not in esse, as he would take a larger sum if the testator was regarded as dying intestate as to him. And it has been held, that a devise to the testator's "children" does not comprehend a posthumous child, so as to prevent it from claiming under the act of assembly as pretermitted by the will: Armistead v. Dangerfield, 3 Munf. 220; S. C., 5 Am. Dec. 501.

The infant is regarded as in esse from the time of its conception: Hall v. Hancock, 15 Pick. 255; Marsellis v. Thalhimer, 2 Paige, 34; S. C., 21 Am. Dec. 66; Hone v. Van Schaick, 3 Barb. 488; Harper v. Archer, 4 Smed. & M. 99 (principal case); if it is subsequently born alive and so far advanced towards maturity as to be capable of living: Hone v. Van Schaick; Harper v. Archer; and a child born within six months is presumed incapable of living: Marsellis v. Thalhimer. And Beck, in his Medical Jurisprudence, vol. 1, 12th ed., p. 407, says: “As a general rule, it seems now to be generally conceded that no infant can be born viable, or capable of living, until one hundred and fifty days, or five months, after conception. There are, however, cases mentioned to the contrary. In such cases, we should recollect that females are liable to mistakes in their calculations, and that conception may take place at various times during the menstrual intervals, and thus vary the length of the gestation. Such early births are at the present day very generally and very properly doubted." Then, after a review of the cases, he says: "We may, from these observations, conclude that between five and seven months there have been instances of infants living, though most rare; and even at seven, the chance of surviving six hours after birth is much against the child." The same views have been adopted by other writers on medical jurisprudence. See Chitty's Med. Jur. 406.

WRIT DE VENTRE INSPICIENDO.-At the ancient common law there was a writ de ventre inspiciendo. It has since been abrogated. Its object was to ascertain whether a woman was with child. Coke mentions it: Co. Lit. 86 (Butler & Hargrave's notes). He says: “When a man having lands in fee simple dieth, and his wife soone after marrieth againe, and faines herself with childe by her former husband, in this case though she be mar ried, the writ de ventre inspiciendo doth lie for the heire. But if a man seised of lands in fee (for example) hath issue a daughter, who is heire apparent, she in the life of her father cannot have this writ for divers causes. First, because she is not heire, but heire apparent; for, as hath been said, nemo est hæris viventis; and this writ is given to the heire to whom the land is descended. And both Bracton and Fleta say that this writ lyeth ad querelam veri hæredis, which cannot be in the life of his auncestor; and herewith agreeth Britton and the Register. Secondly, the taking of a husband in the case aforesaid being her owne act, cannot barre the heire of his lawfull action once vested in him. Thirdly, the law doth not give the heire apparent any writ, for it is not certaine, whether he shall be heire, solus Deus facit hæredes. Fourthly, the inconvenience were too great, if heires apparent in the life of their auncestor should have such a writ to examine and trie a man's lawfull wife in such sort as the writ de ventre inspiciendo doth appoint; and if she be found to be with child, or suspect, then she must be removed to a castle, and there safely kept until her delivery, and so any man's wife might be taken from him against the laws of God and man." The writ was said to lie in favor of a devisee: Ex parte Bellett, 1 Cox's C. C. 297; see also Dursley v. Berkeley, 6 Ves. 251; Ex parte Wallop, 4 Bro. C. C. 90; Theaker's Case, Cro. Jac. 686.

WALKER V. MCDOWELL.

[4 SMEDES AND MARSHALL, 118.]

LEVY ON SUFFICIENT PROPERTY IS PRIMA FACIA A SATISFACTION of the execution; but the presumption of satisfaction arising from a levy may be rebutted, by showing that the levy has been legally removed.

LEVY IS LEGALLY DISCHARGED, when a claimant gives bond, as required by statute, conditioned, amongst other things, for a redelivery of the property.

RETURN OF AN EXECUTION AS SUPERSEDED, is regarded, by the practice prevailing in this state, as a suspension of the execution, and entitles the defendant to restitution.

MERE VOLUNTARY RESTITUTION OF PROPERTY LEVIED ON by the sheriff, although it may impose liability on him, revives the judgment lien. COURT MAY QUALIFY INSTRUCTIONS ASKED, so as to make them conformable to law.

EXECUTION PLAINTIFF CAN OBJECT TO FORTHCOMING BOND TAKEN WITHOUT SURETIES, as invalid; but if he has made no such objection, and it has been received as a good bond, no one else can object to its validity. THIS case turned on the title to certain property levied on by virtue of a writ of fieri facias, issued on a judgment on a forthcoming bond in favor of McDowell. The property was