McCrillis, by Gile his Guardian, vs. Bartlett, 8 N.H. 569

Parker, J.

The statute of this state, after providing that the selectmen may make a complaint to the judge of probate, where any person, by excessive drinking, &c. shall so waste, spend or lessen his estate, &c. as thereby to expose himself or his family to want, or suffering circumstances, or to endanger or expose the town to which he belongs to charge for his or their support, enacts — “ That no bargain ‘ or sale of real or personal estate, or contract of any nature ‘ whatever, made by a person under guardianship for vicious ‘ habits, after the appointment is made, and during the continuance of such guardianship, shall be valid in law.

And * no such bargain, sale or contract shall be valid, if made ! after an attested copy of the complaint presented to a judge ‘ of probate upon which a guardian shall be afterwards ap-1 pointed, and the order of notice thereon, shall have been ‘ filed with the clerk of the town in which the person com- ‘ plained of resides ; unless the guardian, by an instrument ‘ under his hand and seal, shall afterwards approve and ratify ‘ the same.” N. H. Laws, 341.

The transfer of the notes by MeCrillis to the defendant was made after the copies had been duly filed with the town clerk ; and as a guardian was afterwards appointed on said complaint, who has not ratified this transfer, it must be held invalid, by the express provision of the statute, and the notes remained the property of MeCrillis. This action, therefore, is well maintained, so far as the defendant has received money upon the notes. But the amount of the note which has not been collected cannot be recovered in this suit. There is no ground upon which that can be held to be money in the defendant’s hands.

The statute also avoids any special contract between Me-Crillis and the defendant, relative to the services and expenditures mentioned in the defendant’s set-off. Whatever may have been the agreement between them, quatenus a contract, it can have no operation. But this provision of the statute must have a reasonable construction.

It cannot have been intended to render invalid all implied contracts : for such construction might expose the party to actual suffering for the necessaries of life, or oblige the town to maintain him and his family as paupers for a time, when he had ample means for their support; and thus produce the very mischief it was intended to prevent. And we are opinion that it cannot be construed to prevent the party from binding himself for necessary expenditures, by an implied contract, although a note, or special contract for price or time of payment, would come within its prohibition.

Whether the defendant is entitled to recover any thing his set-off will depend, therefore, upon the question whether those services and expenditures can be regarded as necessary and proper expenditures in resisting the complaint upon probable grounds of success. McCrillis undoubtedly had the right to resist that application. He may have been unable so to do, unless he could in some way raise money for the' purpose. But he could neither sell nor borrow, by reason of the statute.

Were the circumstances such that it was reasonable and proper that the defendant on his application should come in his aid in making a defence ? If it was clear that a guardian ought to be appointed, there was no propriety in making a defence for the purpose of procrastination. But if it admitted of reasonable doubt, the statute, we think, could not have been intended to operate so as to deprive McCrillis of his right of trial, and ought not to be so construed.

An enquiry must be had, therefore, whether the services and expenditures were reasonable and proper, under the circumstances, and if so, to what extent; and for this purpose the verdict must be set aside, and a New trial granted.