The opinion of the Court was read as drawn up by
Parker C. J.We think it very clear, that the decision of the Court of Common Pleas in regard to the operation of St. 1818, c. 60, was correct.
Every man of full age and sound mind is at liberty to make contracts, and if made upon good consideration and without fraud, he must be bound by them, unless by statuto provision he is disabled. And disabling statutes of that nature should he construed strictly, for though founded in policy and a just regard to the public welfare, they are in derogation of private rights.1
The statute makes void all and every gift, bargain, sale or transfer of any real or personal estate, made after the filing of a copy of the complaint &c. against one as a spendthrift with the register of deeds. The promissory note declared on is not *231within the words certainly, and we think not within the spirit of that provision.
It is true that by means of a note or other contract made on the eve of a disability to contract, the real and personal estate of the party may be indirectly affected, but the mischief was not sufficiently obvious to induce the legislature to extend their protection thus far. Nor was there the same reason for avoiding these contracts, as for avoiding gifts &c. of real or personal estate ; for if the note shall be given without consideration, it may be avoided ; if with consideration, the spendthrift has received his equivalent ; whereas in the case of gifts, &c., they might be good without consideration, if made without fraud. No argument can be drawn in favor of the defendant from the difference of the two statutes. The subject matter is the same in both ; the latter statute merely anticipates the period when the acts shall become void. We ought not to proceed faster than the legislature on this subject; if the public interest requires that all debts contracted shall be avoided, it will be so enacted.1
Judgment affirmed.
Ash v. Abdy, 3 Swanston, 664.
But see Manson v. Felton, 13 Pick. 206, where the doctrines of the case of Smith v. Spooner are somewhat restrained. It is there held, that a spendthrift under guardianship is not competent to make a valid contract for the payment of money. See also Revised Stat. c. 79, § 13.