be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover, or case, by a change in the form of the action. He is liable in trover for tortiously converting goods intrusted to him, or for fraudulently obtaining goods with an intention not to pay for them; and in detinue, for goods delivered upon a special contract for a specific purpose; and in assumpsit for money which he has fraudulently embezzled.d

*An infant has a capacity to do many other acts *242 valid in law. He may bind himself as an apprentice, or make a contract for service and wages, it being an act manifestly for his benefit; but, when bound, he

Jennings v. Rundall, 8 Term. Rep. 335. Johnson v. Pie, 1 Lev. 169. Vasse v. Smith, 6 Cranch, 226. West v. Moore, 14 Vermont R. 447. Wilt v. Welsh, 6 Watts, 1. In this last case the decisions were elaborately considered, and it was held, that whenever the substantive ground of an action against an infant is contract, as well as where the contract is stated as inducement to a supposed tort, he is not liable: and the case of Campbell v. Stokes, 2 Wendell, 137, was considered as opposed equally to principle and authority. This last case was one of wilful and positive fraud and tort on the part of the infant, and subsequent to the contract, and a wilful and distinct wrong; and the infant was held liable in trespass, and I think, justly; and the judgment was affirmed on error, and cited and approved in Fitts v. Hall, 9 N. H. Rep. 445.

› Homer v. Thwing, 3 Pick. Rep. 492. Peigne v. Sutcliffe, 4 M'Cord, 387. Wallace v. Morss, 5 Hill N. Y. Rep. 391. His property is liable for fines and costs on conviction of a public offence. Beasley v. The State, 2 Yerger's Tenn. Rep. 481.

• Mills v. Graham, 4 Bos. & Pull. 140. In New-York, the action of detinue is abolished, and an action of trespass on the case may be brought to recover damages even for a wilful injury, accompanied with force. By this innovation, all nice questions concerning direct and consequential injuries are avoided. But the want of such an action as detinue to recover a favourite or necessary specific chattel in specie, may be seriously felt. N. Y. Revised Statutes, vol. ii. p. 553, sec. 15, 16.

d Bristow v. Eastman, 1 Esp. Rep. 172. By the N. Y. Revised Statutes, vol. ii. p. 341, sec. 12, no action relating to real property is to be delayed by reason of the infancy of any defendant, and a guardian is to be appointed to defend his rights.

cannot dissolve the relation. The weight of opinion is, that he may make a testament of chattels, if a male, at the age of fourteen, and if a female, at the age of twelve years. He may convey real estate, held as a naked. trustee, under an order in chancery. The equity jurisdiction in this case, is grounded on the statute of 7 Anne, c. 19, which has been re-enacted in this country, and extends only to plain and express trusts. Whatever an infant is bound to do by law, the general rule is, that the same will bind him if he does it without suit at law.d If, therefore, he be a tenant in common, he may make a reasonable partition. He may discharge a mortgage on due payment of the mortgage debt. His acts as executor, at the age of seventeen, will bind him, unless they

C

be acts which would amount to devastavit.f *243 There was no occasion, *said Lord Mansfield,g to

enumerate instances. The authorities are express, that if an infant does a right act, which he ought to do, and which he was compellable to do, it shall bind him. We have already seen, that an infant of fourteen, if a male, and twelve if a female, may enter into a valid con

a Rex v. Inhabitants of Wigston, 3 Barnw. & Cress. 484. Wood v. Fenwick, 10 Meeson & Welsby, 195.

b Harg. n. 83 to lib. 2 Co. Litt. Mr. Hargrave has collected all the contradictory opinions on this point. The civil law gave this power to the infant at the age of seventeen years, and this period has been adopted by statute in Connecticut. In New-York, the period fixed by statute for an infant to make a will of chattels, is the age of eighteen in males, and sixteen in females. N. Y. Revised Statutes, vol. ii. p. 60.

c N. Y. Revised Statutes, vol. ii. p. 194, sec. 167. The New-York statute declares, that whenever the infant is seised or possessed of any lands by way of mortgage, or in trust only for others, the court of chancery, on the petition of the guardian of the infant, or of any person interested, may compel the infant to convey the same.

f In New-York, he is declared to be incompetent, and I think very properly, to act as an executor or administrator. N. Y. Revised Statutes,

vol. ii. p. 69. Ibid. 75.

3 Burr. Rep. 1801.

tract of marriage; but he is not liable to an action, on his executory contract, to marry, though the infant may sue an adult on such a promise.a

(5.) Their marriage settlements.

In consequence of the capacity of infants, at the age of consent, to contract marriage, their marriage settlements, when reasonable, have been held valid in chancery; but it has long been an unsettled question, whether a female infant could bind her real estate by a settlement upon marriage. In Drury v. Drury, Lord Ch. Northington decided, that the statute of 27 Hen. VIII., which introduced jointures, extended to adult women only, and that notwithstanding a jointure on an infant, she might waive the jointure, and elect to take her dower; and that a female infant could not, by any contract previous to her marriage, bar herself of a distributive share of her husband's personal estate, in case of his dying intestate. This decree was reversed in the house of lords, upon the strength of the opinions of Lord Hardwicke, Lord Mansfield, and the majority of the judges; and the great question finally settled in favour of the capacity of the female infant, to bar herself, by her contract before marriage, of her right of dower in the husband's land, and to her distributive share of her husband's personal

estate.

In New-York, "in a late case in chan- *244 cery, the question whether an infant could bind herself by an ante-nuptial contract, was discussed at large and it was held that a legal jointure settled upon an in

■ Hunt v. Peake, 5 Cowen's Rep. 475. In New-York, the court of chancery is authorized to decree and compel the specific performance of contracts by the infant who is a representative of the party making them. N. Y. Revised Statutes, vol. ii. p. 194. sec. 169. As to the sale under the direction of the court of chancery, of the real estates of infants, see preceding Lecture.

b2 Eden's Rep. 39.

• 2 Ibid. 60-75. Wilmot's Opinions, p. 177.

M'Cartee v. Teller, 2 Paige's Rep. 511.

fant before marriage was a bar of her dower; and that an equitable provision settled upon an infant in bar of dower, and to take effect immediately on the death of the husband, and to continue during the life of the widow, and being a reasonable and competent livelihood for the wife under the circumstances, was also a bar. The question still remains, whether she has the capacity to bind her own real estate by a marriage settlement. Mr. Atherly, after reviewing the cases, concludes, that the weight of the conflicting authorities was in favour of her capacity so to bind herself. But in Milner v. Lord Harewood, Lord Eldon has subsequently held, that a female infant was not bound by agreement to settle her real estate upon marriage, if she did not, when of age, choose to ratify it; and that nothing but her own act, after the period of majority, could fetter or affect it; and in Temple v. Hawley, 1 Sandford's Ch. R. 153, the Ass. V. Ch., in a very elaborate and able judgment, held that a female infant was not so bound by a marriage settlement of her real estate, but that she might disaffirm it when she be came of age, and was sole. The Assistant Vice Chancellor said, the preponderance of opinion, was, that the infant could not elect after she became of age during cov erture to affirm it, though she might undoubtedly in that case disaffirm it. The case of Slocombe v. Glubb,¢ admitted that a male infant may bar himself by agreement before marriage, either of his estate by the curtesy, or of his right to his wife's personal property; and both the male and female infant can settle their personal estate upon marriage. The cases of Strickland v. Croker, and Warburton v. Lytton,e are considered by Mr. Ather

▪ Treatise on Marriage Settlement, p. 28—41.

b 18 Vesey, 259.

• 2 Bro. 545.

d2 Cas. in Ch. 211.

• Cited in 4 Bro. 440.

ly as favourable to the power of a male infant to settle his real estate upon marriage, and that seems to be decidedly his opinion. But since the decision of Lord Eldon, in Milner v. Lord Harewood, this conclusion *becomes questionable; for if a female infant can- *245 not settle her real estate without leaving with her the option, when twenty-one, to revoke it, why should not the male infant have the same option?

(6.) Suits in equity against them.

The law is so careful of the rights of infants, that if they be made defendants at the suit of creditors, the answer of the guardian ad litem, does not bind or conclude them. Such an answer in chancery, pro forma, leaves the plaintiff to prove his case, and throws the infant upon the protection of the court. It was the maxim of the Roman law, that an infant was never presumed to have done an act to his prejudice pupillus pati posse non intelligitur. In decrees of foreclosure against an infant, there is, according to the old and settled rule of practice in chancery, a day given him when he comes of age, usually six months, to show cause against the decree, and make a better defence, and he is entitled to be called in for that purpose by process of subpoena.d The decree

d Thomas v. Gyles, 2 Vern. Rep. 232. Lord Ch. in Cary v. Bertie, ibid. 342. Sir Joseph Jekyll, in Eyre v. Countess of Shaftsbury, 2 P. Wms. 120. Napier v. Effingham, ibid. 401. Bennet v. Lee, 2 Atk. 529. Jackson v. Turner, 5 Leigh, 119. Miller v. Dennis, 3 Johns. Ch. Rep. 367. Kelsall v. Kelsall, 2 Mylne & Keene, 409. In England, since the demurrer of the parol has been abolished by the statutes of 11 Geo. IV. and 1 W. IV. c. 47, an infant defendant is not entitled to have six months given to him, after attaining the age of 21, to show cause against a decree. Powys v. Mansfield, 6 Simons, 637. The distinction seems to be, that if the decree directs the estate to be sold, the infant has not his six months, but on a simple decree of foreclosure he is allowed the six months. Schole