CONTRACTS, &c. We have observed, that the law of England, whilst it protects the imbecility of infants, still keeps in view that respect which is due to the fair claims and interests of others, and will not allow that which, in the emphatical language of Lord Mansfield, was intended as a shield, and not as a sword, to be turned into an offensive weapon of fraud and injustice; therefore, an infant, conusant of a fraud, shall be as much bound as an adult. This rule, however, must, it should seem, be confined to such acts as were only voidable; for it has been held, that a warrant of attorney; given by an infant, being absolutely void, the court could not confirm it; though the infant appeared to have given it, knowing that it was not valid, and for the purpose of collusion d. And by 7 Anne, c. 19, infants, trustees, or mortgagees,are not only enabled to convey the estates held in trust or mortgage, but are compellable to do so by the Court of Chanchery or Exchequer; such conveyance being as operative. in all respects as 'if the infants were of full age; which power has been construed to authorize them to convey by common recovery: and if the infant trustee be also a feme-covert, the court may direct her to convey by fine'; but the infant must be an express and purely a trustee, and the trust in writing, and not a merely constructive trust. And the infant being compellable under those acts to convey, he may convey voluntarily and the conveyance will be operative notwithstanding his infancy", it being a general rule in equity, for the prevention of delay and expense, с Evroy v. Nicholas, 2 Eq. Sanderson v. Marr, 1 H. Ex parte Johnson, 3 Atk. 559; Ex parte Smith, Ambl. Rep. 624. Ex parte Maire, 3 Atk. 479; Com. Rep. 615. & Ex parte Vernon, 2 P. Wms. 549; Godwyn v. Lister, 3P.Wms.387; Hawkins v. Obeen, 2 Ves. 559. h See Zouch v. Parsons, 3 Burr. 1794. sed quære. &c. that whatever a person may be compelled to do by suit, he CONTRACTS, may do without suit. And by 29 Geo. 2, c. 31, infants may surrender leases in the Court of Chancery, in order to renew the same. An infant may also present to a vacant benefice, of which he is patroni; because a presentation is not a thing of profit, of which a guardian can make any benefit* (1). These several instances of infants being allowed to act, clearly fall within the rule laid down by Lord Mansfield, in the case of Zouch v. Parsons, that the acts of an infant, which do not touch his interest, but take effect from an authority which he is trusted to execute, are binding. It remains, however, to observe, that, in the case of Hollingshead v. Hollingshead', tenant in tail, empowered to make a jointure, so as such jointure did not exceed a moiety of the estate, was held to have executed the power by a covenant, during his infancy, with his wife's relations, that he would, within six months after he came of age, settle so much of the land as should amount to 100l. per annum, upon his then intended wife for life. This covenant clearly affected his interest, yet it was held binding, perhaps, from the nature of the power, which, being to settle lands in jointure, implied the right of executing it during infancy; for, as he might contract marriage during infancy, to which dower was incidental, if he had not been allowed to execute i Co. Lit. 89, a. 172, a. *Hearle v. Greenbank, 3 Atk. 710. 1 Cited in 2 P. Wms. 229, and in Stra. 604. (1) But Mr. Hargrave, in his edition of Coke upon Littleton, note 1, p. 89, a. very properly observes, that though the decision of Lord King, in the case of Arthington v. Coverley, 2 Eq. Ca. Ab. 518, “ may remove all doubts about the legal right of an infant of the most tender age to present, still it remains to be seen, whether the want of discretion would induce a court of equity to control the exercise, where a presentation is obtained from an infant, without the concurrence of the guardian." CONTRACTS, the power, by making the jointure in lieu of dower pre &c. vious to the marriage, the power afterwards might have been a mere nullity". Also, where an estate, given to an infant upon a condition; such acts as an infant can perform, must be done by him; and infancy, in such a case, is no excuse". But Lord Coke° takes a distinction between conditions in fact, which are expressed, as to pay money, or to do or not to do some particular act, and conditions in law, which are implied; and these are distinguishable into conditions by the common law, and by statute: conditions by the common law, he observes, are of two sorts, one founded on skill and confidence, the other not; and conditions by statute are also of two qualities, scil. when the statute for execution of the condition in law gives recovery, and when the statute gives an entry and no recovery. As to the condition in law, founded on skill and confidence, as a stewardship in fee, if the condition be broken, the infant is barred for ever; not so where the condition in law is not founded on skill and confidence, as where the infant or feme covert be lessee for life, and makes a feoffment in fee, and the lessor enters for the forfeiture; yet it shall not bar the infant or feme covert, after the death of her husband. But if an infant or feme covert commit waste, it shall bind the infant and feme covert, for the statute gives the action to recover the land; but if the condition be by force of a statute, which gives an entry, but no action, as in case of an alienation in mortmain, the infant or feme covert is not barred by the entry for the condition broken P. Infants are also forbidden by positive law, to enter &c. into any contract for the purchase of an annuity; and con- CONTRACTS, sequently any assurance executed by him, as evidence or in confirmation or execution of such contract, would be nugatory. femes covert. A feme covert, though of full age, is also incapable of Disability of binding herself or husband by any agreement in pais, not only because she is, in contemplation of law, under the dominion and coercion of her husband, and consequently has no moral capacity to assent to any contract respecting either his property or her own', but because, as the law has vested the property of the wife in her husband, she would, if allowed to bind herself, be liable to engagements without any means of answering them, and if allowed to bind her husband, she might, by the abuse of such power, involve his family in ruin. Hence it is a general rule, that all deeds executed by a married woman (except only the Queen consort) for the purpose of conveying her estate, are absolutely void, and not voidable only. What has been before observed, therefore, in respect of money borrowed by infants for necessaries, even though actually applied for such purpose, is equally true at law, in respect of femes covert; and the same distinction also prevails in equity with respect to cases where the money borrowed was, and where it was not, so applied'. But in cases where no injury can arise to the husband, the acts of the wife will be good; therefore a wife may, without her husband, execute a naked authority, whether given before or after marriage". So, though an interest, as well as an authority, pass to the wife, yet if the authority What acts of feme covert good. CONTRACTS, be collateral to, and do not flow from the interest, it may &c. be executed by the wife alone, the interest and the |