from the use of the ward's money. He cannot act for his own benefit in any contract, or purchase, or sale, as to the subject of the trust. If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to the infant's benefit. He is liable to an action of account at common law, by the infant, after he comes of age; and the infant, while under age, may, by his next friend, call the guardian to account by a bill in chancery. If the guardian has been guilty of negligence in the keeping or disposition of the infant's money, whereby the estate has incurred loss, the guardian will be obliged to sustain'that loss. The guardian must not convert the personal estate of the infant into real, or buy land with the infant's money, without the direction of the Court of Chancery. If he does, the infant, when he arrives at full age, will be entitled, at bis election, to take the land, or the money, with interest; and if he elects the latter, chancery will take care that justice be done, by considering the ward as trustee for the guardian of the lands standing in his name, and will direct the ward to convey. And if the guardian puts the ward's money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal, with compound interest, to meet those profits when the guardian will not disclose them. So, if he neglects to put the ward's money at interest, but negligently, and for an unreasonable time, suffers it to lie idle, or mingle it with his own, the court will charge him with simple interest, and, in cases of gross delinquency, with compound interest. These principles are... understood to be well established in the English equity system, and the principal authorities upon which they rest were collected and reviewed in the chancery decisions in this state, to which, I apprehend, it will be sufficient to refer, as they have recognised the same doctrine." a Green v. Winter, 1 Johns. Ch. Rep. 26. Dunscomb v. Dunscomb, ibid. 508. Schieffelin v. Stewart, ibid. 620. Holdridge Those doctrines undoubtedly, pervade the jurisprudence of every part of the United States." v. Gillespie, 2 Johns. Ch. Rep. 30. Davoue v. Fanning, ibid. 252. Rogers v. a Reve's Domestic Relations, p. 325, 326. 2 N H. 1 Mason, 345. 5 Conn. Rep. 475 1 Peters' Rep. 364. Eg. Rep. 241. 4 S. C. Eq. Rep. 702–705. Rep. 218, 3 S. C LECTURE XXXI. OF INFANTS. THE necessity of guardians results from the inability of infants to take care of themselves; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. Within that period, minors cannot, except in a few specified cases, make a binding contract, unless it be for necessaries, or in marriage. Nor can they do any act to the injury of their property, which they may not avoid, or rescind, when they arrive at full age. The responsibility of infants for crimes by them committed, depends less on their age, than on the extent of their discretion and capacity to discern right and wrong. Most of the acts of infants are voidable only, and not absolutely void and it is deemed sufficient, if the infant be allowed, when he attains maturity, the privilege to affirm or avoid, in his discretion, his acts done, and contracts made, in infancy. But when we attempt to ascertain from the books the precise line of distinction between void and voidable acts, and between the cases which require some act to affirm a contract, in order to make it good, and some act to disaffirm it, in order to get rid of its operation, we meet with much contradiction and confusion. A late writer, who has compiled a professed treatise on the law of infancy, concludes, from a review of the cases, that the only safe criterion by which we can ascertain, whether the act of an infant be void or voidable, is, "that acts which are capable of being legally ratified are voidable only; and acts which are incapable of being legally ratified are absolutely void.a a Bingham on Infancy, 33. But, the criterion here given, does not appear to free the question from its embarrassment, or afford a clear and definite test. All the books are said to agree in one result, that 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 comes of age, to affirm or avoid it; and this, says Ch. J. Parker," is the only clear and definite proposition, which can be extracted from the authorities. But we are involved in difficulty, as that learned judge admits, when we come also to the application of this principle. In Zouch v. Parsons, it was held by the K. B., after a full discussion and great consideration of the case, that an infant's conveyance by lease and release, was voidable only; and yet Mr. Preston condemns that decision in the most peremptory terms, as confounding all distinctions and authorities on the point; and he says, that Lord Eldon repeatedly questioned its accuracy. On the other hand, Mr. Bingham undertakes to show, from reason and authority, that the decision in Burrow is well founded; and he insists that all the deeds, and 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. 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 ; and his acceptance of a bill of exchange is void; and his contract as security for another, is absolutely void; and a bond, with a penalty, though given for a Whitney v. Dutch, 14 Mass. Rep. 457. b 3 Burr. 1794. c Treatise on Conveyancing, vol. ii. 249. d Law of Infancy, ch. 2. e See his work, p. 34, and also his preface. f Swasey v. Administrator of Vanderheyden, 10 Johns. Rep. 33. g Williamson v. Watts, 1 Campb. N. P. 552. Curtin v. Patton, 11 Serg. & Rawle, 305. |