voidable contract, after the minor comes of age, binds him; and the suit must be brought on the original contract. (a) If the instrument be voidable only, the action is to be brought on such instrument; but in such cases, he is only bound to the extent of the new contract. If D, a minor, execute his note for $50, for an article, and, when of age, promise that, in consideration of this debt, he will pay $30, no more can be recovered. (1)

. It is impossible for an infant to confirm and render valid, during his minority, any contract made by him, either by express words or any act done by him. The elementary writers seem to suppose that there is an exception to the rule: for an infant, although he has not performed, on his part, what he was to do, may, during his minority, sue and recover of the adult who contracted with him, for a non-performance of his part of the contract. This they say shows, that by this act, he elected to validate the contract on his part, and this shall bind him; for they suppose, that, unless this is so, there is no existing consideration to the contract by which the adult could be bound. I apprehend, that an infant can, in no case, during his minority, validate a contract, which was not binding upon him, when he entered into it; but the true principle is, that a voidable contract of an infant, is a sufficient consideration to bind an adult to the performance of his contract. Until it is avoided, it can never be known that it will be avoided; and until it is, it is an existing contract. (a) Esp. Dig. 164.

(1) The general principle is thus stated by Chancellor Kent, 2 K. Com. 240: If an infant pays money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid. On the other hand, if he avoids an executed contract, on the ground of infancy, he must restore the consideration which he has received: and this proceeds upon the only equitable ground. An infant who contracts to work for an adult by the month, and who does work a portion of the time, and receives articles on account of his labor, cannot retain the property so received, and at the same time recover the value of his services: but the value of the articles received will be allowed against him, at what they are reasonably worth, without reference to any contract made by him. Taft v. Pike, 14 Vt. Rep. 403. Whenever the person was known to the other contracting party, to be under age, such party contracts with him at his peril, and trover, for the articles delivered as a consideration, will not lie against the infant. Penrose v. Curren, 4 Rawle's Rep. 453. In a case where an adult would be liable to an action, either in form ex delicto, or ex contractu, as for instance, in an action for fraud in the sale of personal chattels, an infant cannot be made liable by bringing the action in case, instead of assumpsit. West v. Moore, 14 Vt. Rep. 447.

What Contracts, when executed by Infants, are Void, and what are Voidable. What Instruments executed by them, are Void, and what are Voidable. Of executed Contracts to them being Voidable only. Whether a Penal Bond, executed by an Infant, is Void, or Voidable only. Of the Executory Contract of an Infant, is it Void, or Voidable? Of the Privilege of the Infant to treat his Executory Contract as Void. When may he do thus? Of a Judicial Conveyance by him, by Fine or Recovery. Of the Privilege of an Infant Defendant, against whom a Decree is passed in Chancery.

THE Contracts of infants are void, and voidable. I apprehend the only correct doctrine on this subject, is, that all contracts executed as gifts, grants, &c. by a minor, which do take effect by manual delivery only, are voidable: but, in such case, if the minor cannot have the full benefit of his privilege, unless the contract is considered as void, it shall be so considered. (a) (1) If a minor make a feoffment, this has been always held voidable only; for it passed by delivery. (b) In that case, if the Latch, 10. 1 Roll. Abr. 700. Pow. on Cont. 32. 6 Co. 42.

(a) 3 Bur. 1804. (b) 3 Bur. 1804.

Lit. Lec. 259.
Fondb. 694.

(1) No satisfactory general rule has yet been laid down, by which to determine whether the contract of an infant is voidable only, or absolutely void. Mr. Bingham, in his treatise on the law of infancy, p. 33, is of opinion that acts which are capable of being legally ratified, are voidable, and acts which are incapable of being legally ratified, are absolutely void. But this definition has not been adopted in the subsequent cases. A power of attorney is the instance usually selected in the books, of a contract absolutely void on the part of the infant; and yet there would seem to be no obstacle to the legal ratification of a power of attorney by an infant after arriving at full age; and why would not the ratification relate back to, and render valid, all acts done under it prior to its ratification? One rule, however, laid down by Lord Mansfield, in the case of Zouch v. Parsons, 3 Burr. 1794, and adopted by Ch. J. Parker, in Whitney v. Dutch, 14 Mass. 462, may be considered certain so far as it extends. Whenever the act done, may be for the benefit of the infant, it shall not be considered void; but he shall have his election when he becomes of age, to affirm or avoid it. But when we come to the application of even this rule to particular cases, it will be found surrounded with difficulties,

feoffee had entered, he could not be sued as a trespasser. If an infant sells a horse, and delivers him, he cannot treat the vendee as a trespasser for taking him. If he wishes to rescind this voidable contract, he must notify the vendee that he rescinds the contract, and demand his horse; and if the horse be not delived, he may then sue the vendee in trover; for the contract is void. But, in such case, if the infant found that the vendeell 251 was about to escape out of the reach of legal process, and he could not have the benefit of his privilege, unless he sued him immediately, and arrested him in an action as a tort feasor, he shall have liberty so to do. (a) If a minor sell a horse, and do not deliver him, and the vendee takes him, he is a trespasser; for such contract is void, there having been no delivery. All instruments which, by delivery, pass an interest in property, I apprehend are voidable. Thus, deeds and leases of land are voidable; but, if the nature of the instrument delivered, be not such as to pass an interest, then the instrument is void: As a power of attorney by an infant, is void; for, by the delivery of the power of attorney, no conveyance of any property is made, only a power given to another to do it. 1 H. Bl. 75. 3 Bur. 1808.

In all these cases, where the infant is the grantee, devisee, &c. the contract is voidable only: for it is a rule, that such contracts, in which there is an apparent benefit to the infant, are only voidable; and this is always the case where there is a grant, devise, or promise to the minor. So the power of attorney to a minor to accept seisin, is voidable. (b)

I find a rule on this subject, that contracts by a minor, in wwhich there is no semblance of benefit, are void, notwithstanding all the declarations of this kind found in the elementary writers, and the dicta of eminent judges. (c) I do apprehend, that this position is untenable: we find it laid down, in accordance with this rule, that a lease of an infant, in which no rent is reserved, is void. I have seen no judicial decision to support this position. Littleton declares, that a lease by an infant, is only voidable: he lays this down without any exception. Lord Mansfield's opinion is opposed to this rule. He says that an infant may make a lease, without reserving rent to try his title; but I apprehend it is decisive of the question, that|| a 252

(a) 1 Roll. Abr. 788. Latch, 10. Hob. 77. 1 Roll. Abr. 730. (b) 2 Vent. 203. Co. Lit. 238. Cro. Jac. 320. 3 Bur. 1808. Moore, 78. 1 Lev. 6.

(c) 3 Bur. 1806.

lessee of an infant can never take advantage of the minority of the infant lessor; yet he could, if his lease be void. (a) It is true in this case, as in all others, if the infant could not have the full benefit of his privilege, unless his lease is considered as void, it shall be so considered: (b) As if a lease should be made by an infant, of such a nature as the law inflicts a penalty for making the lease, the infant may treat it as void; and, of course, he will not be subject to the penalty. See a case in 1 Roll. Abr. where, because the infant could not have the full benefit of his privilege, unless his act was considered as void, the court adjudged it void. We find it laid down, in illustration of this rule, which I am opposing, that a penal bond is void. I know of no decision to warrant this. It is said that a penalty can never be of any advantage to a minor; and, therefore, it is void. It is inconceivable to me, how a penal bond can be of any greater injury to an infant, than any other contract. He can rescind it at pleasure, as easily as any other contract; and when given for necessaries, no action can be maintained upon it, for reasons which have been already mentioned. Neither do I find any judicial decision which establishes such a rule. There are decisions in chancery, that most clearly evince that a penal bond is not considered in that court as void. Whenever an infant has directed in his will that his debts should be paid, the court will order a penal bond, given by the infant, to be paid. The court considers the request in the will as a ratification of the debt. could not be the case, if the bond were void; for whatever instrument is void, is incapable of ratification as an executory agreement. (c) (1)

(a) Co. Lit. 530. Lit. Lec. 547.

(b) 9 Vin. 393. 2 T. Rep. 61. 3 Bur. 1806. Fondb. 74. (c), 1 Fondb. 74. 1 Wood. 406. Eq. Ca. Abr. 282.

This

(1) Scarcely any questions, relating to the law of infancy, are so diffi cult of absolute determination, as whether the contracts of infants are binding, voidable, or absolutely void. As has already been observed, no general rule has been laid down which can be said to be clearly supported by a balance of authority. Below may be found a few instances in which this question has been discussed in different courts, and the different determinations it has received. Few questions can be found upon which the decisions have been more conflicting. In Zouch v. Parsons, 3 Burr. 1794, an infant's conveyance by lease and release was held to be voidable only. This decision is condemned, in unmeasured terms, by a writer of high authority. 1 Pres. on Abs. of tit. 324. In Swasey v. Vanderheyden, 10 John. Rep. 33; M'Mian v. Richmond, 6 Yerger's Rep. 1; and Trueman v.

I would notice the rule of pleading by an infant, when sued upon a bond. He cannot plead non est factum, as a femme covert can to a bond, which she gave whilst married; but

Hurst, 1 Term Rep. 40, the promissory note of an infant is said to be absolutely void; while in Goodsell v. Myers, 3 Wend. Rep. 479; Everson v. Carpenter, 17 do. 419, and Dubose v. Wheddon, 4 M'Cord's Rep. 221, it is held to be only voidable. In Baylis v. Dinely, 3 Maule & Selw., his bond, with a penalty, is said to be void, and in Conroe v. Birdsall, 1 John. Cas. 127, it is held to be voidable.

Another rule was laid down by Lord Ch. J. Eyre, in Keane v. Boycott, 2 H. Black. Rep. 511, which has since received the confirmation of Chancellor Kent and Mr. Justice Story. 2 Kent's Com. 236; 1 Mason's Rep. 32. It is, that when the court can pronounce the contract to be for the benefit of the infant, as for necessaries, it is good; when for his prejudice, it is void; and when the contract was of an uncertain nature as to benefit or prejudice, it is voidable only at the election of the infant. We have collected a few cases illustrative of the law on this subject in several of the states, and from them we leave the lawyer to form his own conclusions.

In Ohio, the deed of an infant may be disaffirmed, at any time, before an action of ejectment would be barred by the statute of limitations. Drake v. Ramsey, 5 Ohio Rep. 251. His letters of attorney, conveying no present interest, are absolutely null. Lawrence v. M'Arter, 10 Ohio Rep. 37.

In Massachusetts, all sales to infants, made by persons of full age, are not void, but voidable, only, by the infant, and cannot be avoided by the vendors, for they have the semblance of benefit to the infant. Bigelow's Digest, 402.

In Vermont, all contracts made by an infant, whether executed or not, if not for necessaries, may be avoided by him, unless confirmed after arriving at full age. Abell v. Warren, 4 Vt. Rep. 149. Though it is said in a later case that he will be bound by his contract, unless he disaffirm it within a reasonable time after becoming of age. Richardson v. Boright, 9 Vt. Rep. 368.

In Pennsylvania, the executory contract of an infant is voidable as to him, but binding upon the adult with whom he contracts. M'Ginn v. Shaeffer, 7 Watts' Rep. 414.

In South Carolina, the agreement of an infant to a partition of lands, is voidable, and will require some distinct act, on the part of the infant, after becoming of age, to make it binding. Rainsford v. Rainsford, 1 Spears' Eq. Rep. 385.

In New Hampshire, where an infant had purchased land, and gone into possession of it during infancy, it was held that he might avoid the purchase, but that a remaining in possession, and offering to sell the land, after he became of age, amounted to a sufficient ratification of the contract. Robbins v. Eaton, 10 N. H. Rep. 184.