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Binghama undertakes to show, from reason and authority, that the decision in Burrow is well founded ; and he insistsb that all the deeds, acts, and contracts of an infant, except an account stated, a warrant of attorney, a will of lands, a release as executor, and a conveyance to his guardian, are, in judgment of law, voidable only and not absolutely void.c But the modern as well as ancient cases, are much broader in their exception. Thus it is held, that a negotiable note, given by an infant, even for necessaries, is void ;d and he is not liable for money borrowed, though applied to necessaries ;e and his acceptance of a bill of exchange is void ;f and his contract as security for another, is absolutely void ;: and a bond, with a penalty, though given for necessaries, is void.h It must be admitted, however, that the tendency of the modern decisions is in favour of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election when they became of age, either to affirm or disavow them.i
If their con
· Law of Infancy, ch. 2.
c In Williams v. Moon, 11 Meeson f. Welsby, 255, it was held that an account stated by an infant was not to be distinguished in principle from goods sold, and was voidable only. The old authorities was overruled.
d Swasey v. Administrator of Vanderheyden, 10 Johns. Rep. 33. Trueman v. Hurst, 1 Term. Rep. 40. M'Crillis v. How, 3 N. H. Rep. 348. M'Mian v. Richmond, 6 Yerger, 1. Contra, Dubose v. Wheddon, M'Cord's Rep. 221. In Everson v. Carpenter, 17 Wendell, 419, and in Reed v. Bachellor, 1 Metcalf's Rep. 559, it was adjudged that the promissory note of an infant was merely voidable, and could be made available by a new promise aster he was of age. See also to the same point, 1 Berton's N. B. Rep. 23, and that it is now the better doctrine.
• Randall v. Sweet, 1 Denio, 160.
h Co. Litt. 172, a. recognized as being still the law by Bayley, J., in 3 Maule of Selv. 482.
· Wamsley v. Lindenberger, 2 Randolph's Rep. 478. Lord Mansfield, in Zouch v. Parsons, 3 Burr. Rep. 1804, held the law to have been truly
tracts were absolutely void, it would follow, *as a *236 consequence, that the contract could have no effect and the party contracting with the infant, would be equally discharged. The doctrine of the case of Zouch v. Parsons, has been recognized as law in this country, and it is not now to be shaken. On the authority of that case, even the bond of an infant has been held to be void. able only at his election. It is an equitable rule, and most for the infant's benefit, that his conveyances to and from himself, and his contracts, in most cases, should be considered to be voidable only. Lord Ch. J. Eyre, in Keane v. Boycotte undertook to reconcile the doctrine of
laid down by Perkins, sec. 12, that “all such gists, grants, or deeds, made by an infant, which do not take effect by delivery of his hand, are void. But such gists, grants, or deeds, made by an infant by matter in deed, or in writing, which take effect by delivery of his own hand, are voidable.” Chancellor Jones, in Stafford v. Roof, 9 Cowen's Rep. 626, adhered to this distinction, and held, that manual delivery was requisite to render the infant's deed of lands or chattels voidable only. I apprehend that the modern rale, as now understood, is not quite so precise.
• 1 Fonb. Tr. of Eq. 74. In Goodsell v. Myers, 3 Wendell's Rep. 479, and Dubose v. Wheddon, 4 M Cord's Rep. 221, it was held, that the note of an infant was voidable, and not void.
Ch. J. Ruffin, in Hoylo v. Stowe, 2 Deo. g Battle, 324, 325, expresses bis disapprobation of the decision in Zouch v. Parsons, with much force of reasoning, and he says it is not received as settled law. But in Bool v. Mix, 17 Wendell8 Rep. 119, it was adjudged that a deed of bargain and sale made by an infant, was like a feoffment with livery of seisin, voidable only, and not absolutely void. The rule was even admitted to be universal, that all deeds and instruments under seal executed by an infant were voidable only, with the single exception of those which delegate a naked authority. See, also, Mr. Justice Story, in 10 Peters' Rep. 71, and the Eaglo Fire Company v. Lent, 6 Paige's Rep. 635, S. P., and this I regard as the general American law on the subject.
· Conroe v. Birdsall, 1 Johns. Cas. 127. A deed of bargain and sale of lands by an infant is voidable only. Wheaton v. East, 5 Yerger's Tenn. Rep. 41.
Jackson v. Carpenter, 11 Johns. Rep. 539. Oliver v. Houdlet, 13 Mass. Rep. 237. Roberts v. Wiggin, 1 N. H. Rep. 73. Wright v. Steelo, 2 N. H. Rep. 55. Kline v. Bebee, 6 Conn. Rep. 494. • 2 H. Blacks. Rep. 511. VOL. II.
void and voidable contracts, on the ground, that when the court could pronounce the contract to be to the infant's prejudice, it was void, and when to his benefit, as for necessaries, it was good; and when the contract was of an uncertain nature as to benefit or prejudice, it was voidable only at the election of the infant. Judge Story declared these distinctions to be founded in solid reason, and they are considered to be so, and the point is not susceptible of greater precision.
(3.) Acts avoided or confirmed.
If the deed or contract of an infar be violable only, it is nevertheless binding on the adult with whom he dealt, so long as it remains executory, and is not rescinded by
the infant.b It is also a general rule, that no one but *237 the infant himself, or his legal representatives,
can avoid his voidable deed or contract; for while living, he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit; and when dead, they alone should interfere who legally represent him. The infant's privilege of avoiding acts which are matters of record, as fines, recoveries, and recognizances, is much more limited, in point of time, than his privilege of avoiding matters en pais. The former must be avoided by him by writ of error, or audita querela, during his minority, when his nonage can be tried by the court by inspection ; but deeds, writings, and parol contracts, may be avoided during infancy, or after he is of age, by his dissent, entry, suit, or plea,
. 1 Mason's Rep. 82. Wheaton v. East, 5 Yerger's Rep. 41. M.Minn v. Richmonds, 6 ibid. 1. S. P.
Smith v. Bowen, 1 Mod. Rep. 25. Holt v. Ward, Str. Rep. 937. Warwick v. Bruce, 2 Maule gf Selw. 205. Brown v. Caldwell, 10 Serg. & Rawle, 114.
• 8 Co. 42. b. Keano v. Boycott, 2 H. Blacks. Rep. 511. Van Bramer v. Cooper, 2 Johns. Rep. 279. Jackson v. Todd, 6 ibid. 257. Oliver v. Houdlet, 13 Mass. Rep. 237. Roberts v. Wiggin, 1 N. H. Rep. 73. Priv. jes in estate cannot avoid the infant's deed. Hoylo v. Stowe, 2 Deo. of Battle, 323.
as the case may require. If any act of confirmation be requisite after he comes of age, to give binding force to a voidable act of his infancy, slight acts and circumstances will be a ground from which to infer the assent; but the books appear to leave the question in some obscurity, when and to what extent a positive act of confirmation on the part of the infant is requisite. In Holmes *v. Blogg,b the Ch. Justice observed, that in every instance of a contract, voidable only by an infant on coming of age, he was bound to give notice of disaffirmance of the contract in a reasonable time. The inference from that doctrine is, that without some act of dissent, all the voidable contracts of the infant would become binding. But there are other cases which assume that a voidable contract becomes binding upon an infant after he comes of age, only by reason of acts or circumstances, amounting to an affirmance of the contract.c In
· Co. Litt. 380. b. Com. Dig. tit. Enfant, C. 3. 5. 9. 11. Cro. Car. 303. 306. In Roof v. Stafford, 7 Cowen's Rep. 175, it was held, by the supreme court of New York, that a sale of chattels by an infant, was not any more than a conveyance of land, voidable till he came of age. This was settled as to conveyances of land, by the case of Zouch v. Parsons. But in the same case, on error, 9 Cowen’s Rep. 626, Chancellor Jones held, that the infant might avoid a sale of chattels while an infant, but not a sale of land. In the latter case, he could enter and take the profits until of age ; but where the possession was changed, and he had no legal means to regain it, he might exercise the power of rescission immediately. The act of avoidance is only allowed during infancy, when necessary, inasmuch as the infant lacks discretion to exercise it. The case in 9 Cowen is an authority that an infant may avoid, during infancy, a sale of chattels, and bring trover by his guardian to recover them. So it was afterwards held in Bool v. Mix, 17 Wendell, 119, that a sale and delivery of chattels by an infant might be avoided while under age, but that a deed of lands executed by an infant, could not, until he came of age, though he might enter and take the profits in the mean time. b 8 Taunt. Rep. 35.
Evelyn v. Chichester, 3 Burr. Rep. 1717. 1 Rol. Abr. tit. Enfants, K. Co. Litt. 51. b. Hubbard y Cummings, 1 Greenleaf's Rep. 11. Aldrich v. Grimes, 10 N. H. Rep. 194. In Holmes v. Blogg, 8 Taunt. Rep. 508, it is remarkable, that the distinguished counsel in that case, one of whom
the cases of Jackson v. Carpenter, and Jackson v. Burchin,a the infant had disaffirmed the voidable deed of his infancy, which was by deed of bargain and sale, by an act equally solemn, after he became of age. This is the usual and suitable course when the infant does not mean
is now (1827) lord chancellor, and the other chief justice of the C. B , treat this as an open and debateable point. Sergeant Copely insisted, that the infant's contract was binding on him when he became adult, because there had been no disaffirmance of it; and Sergeant Best contended, that disaffirmance was not necessary, and that infants were not bound by any contract, unless the same was affirmed by them after arriving at full age; and this is the decision in 4 Pick. Rep. 48. It has been held that an infant's conveyance may be disaffirmed at any time, so long as an action of ejectment is not barred by the statute of limitations. Lessee of Drake v. Ram. sey, 5 Hammond's 0. Rep. 251. Jackson v. Carpenter, 11 Johns. Rep. 539 to S. P. And in South Carolina it is held, that a simple declaration' of the infant, on his coming of age, is not a sufficient confirmation of his voidable contract, unless it be accompanied by some act which recognizes the validity of the obligation. Ordinary v. Wherry, 1 Bayley's Rep. 26. In Wheaton v. East, 5 Yerger's Tenn. Rep. 41, the decision was, that a deed of confirmation of the minor's deed was not requisite, but that any act of the minor from which his assent to the deed executed during his minority, might be inferred, would operate as a confirmation, and conclude him.
· 11 Johns. Rep. 539. 14 Ibid. 124. In Tucker v. Moreland, 10 Peter's U.S. Rep. 73, it was observed by Mr. Justice Story, that those two cases in Johnson proceeded upon principles, which were in perfect coincidence with the common law. In the case in Peters, the questions arising on the void and voidable acts of infants, and when they were to be deemed confirmed or disaffirmed, are fully and learnediy discussed in the opinion pronounced by the court.
6 A conveyance by an insaut of the same land to another person after he comes of age, effectually avoids a deed of bargain and sale made in infancy. Hoyle v. Stowe, 2 Dev. of Battle, 320. The New-York case of Bool v. Mix, 17 Wendell, 119, seems to require from the infant some positive act of disaffirmance aster he comes of age of a sale of lands. If it be a feoffment with livery, it may be avoided by entry, or by writ dum fuit infra ætatem. If by deed of bargain and sale, it might be avoided by another deed of bargain and sale made to a third person without entry, if the land be vacant. And in all other cases if there be no conveyance to a third person, there must be an actual entry for the express purpose of disaffirming the deed, or he must do some other act of equal notoriety and efficiency.