CHAPTER VII.

THE RIGHTS AND DUTIES GROWING OUT OF THE DOMESTIC RELATIONS.

SECTION 1.

PARENT AND CHILD.

The obligation of the father to maintain the child is, and always has been, recognized in all civilized countries in some way and in some degree. The infant cannot support himself: he would perish if others did not supply him with the means of subsistence; and the only question is, whether the public (that is the State) shall do this or his parent. Justice, equally with the best affections of our nature, answers that it is the duty of the parent. But upon some points it is not entirely settled how far this duty is a legal obligation.

We should say, however, that a consideration of all the authorities justifies us in stating as strongly if not universally prevailing rules in this country, the following: First, if goods supplied to an infant are necessaries, the father's authority is presumed, and he is therefore liable to pay for them, unless he supplies them himself or was ready to supply them; second, when the infant lives with the father or under his control, his judgment as to what are necessaries will be so far respected that he will be held liable only for things furnished to the infant to relieve him from absolute want; third, if the things supplied are strict and absolute necessaries, needful for the child's subsistence, or if the child is living away from the parent under circumstances which indicate a desertion by the parent, or that the child has been expelled from his house, or caused to leave it by the wrongful acts of the parents, then whosoever supplies the wants of the child, may recover their cost or value from the parent; fourth, if the goods supplied were proper and beneficial to the child, but were not strict and absolute necessaries, the supplier can recover from the father only by proving that he authorized the supply. But slight evidence is held to be sufficient to prove such authority, as if they were clothes, and the father saw the son wear them, or knew that he had received them, and made no objection when he might have done so, he must pay for them.

The word "necessaries" must be interpreted according to the circumstances of the case. If the child be of sufficient age and strength to earn by proper exertions the whole or a part of his subsistence, it will not be deemed "necessary" that such aid should be rendered to him as it would be necessary to give to an infant incapacitated from contributing to his own support, by tender years or by debility of mind or body. We give, as closely connected with this subject, the law concerning infants, the law of guardian and ward, and the law of apprenticeship.

INFANTS OR MINORS.

Generally, all persons may bind themselves by contracts. But some are incapacitated. The incapacity may arise from many causes; as from insanity, or from being under guardianship, or from alienage in time of war, or from marriage, or from infancy.

All persons are infants, in law, until the age of twenty-one. But in Vermont, Maryland, Ohio, Maine, Missouri, Texas, and perhaps one or two other States, women are considered of full age at eighteen, for some purposes.

The rule of law is, that a person becomes of age at the beginning of the day before his twenty-first birthday. This rule opposes the common notion, and it rests on no very good reason, but on ancient authority and constant repetition. The reason assigned is, that the law takes no notice of parts of a day. The effect of the rule is, that a person born on the 9th of May, in the year 1840, becomes of age at the beginning of the 8th of May, 1861, and may sign a note, or do any thing, with the full power of a person of age, on any hour of that day.

The contract of an infant (if not for necessaries) is voidable, but not void. That is, he may disavow it, and so annul it, either before his majority, or within a reasonable time after it. As he may avoid it, so he may ratify and confirm it. He may do this by word only. But mere acknowledgment that the debt exists is not enough. It must be substantially, if not in form, a new promise. In England, and in a few of our States, it is provided by statute that this confirmation can only be by a new promise in writing, signed by the promisor. This rule seems to be useful, and we think it will be more widely adopted.

It must be a promise by the party, after full age, to pay the debt; or such a recognition of the debt as may fairly be understood by the creditor as expressive of the intention to pay it; for this would be a promise by implication. There are no particular words or phrases which the law requires or favors as a confirmation. No.

ratification or confirmation can be used in any action which action was brought before the ratification was made. It must also be made voluntarily, and with the purpose of assuming a liability from which he knows that the law has discharged him. And if it be a conditional promise, the party who would enforce it must prove the condition to be fulfilled. Thus, if the plaintiff relies on a new promise, and asserts and proves that the defendant said, after full age, “I will pay when I am able," he must also prove that the defendant was able to pay when the action was brought.

If an infant's contract is not avoided, it remains in force. And it may be confirmed without words; and the question sometimes occurs, whether confirmation by mere silence, after a person arrives at full age, prevents him from avoiding his contract made during his infancy. As a general rule, mere silence, or the absence of disaffirmance, is not a confirmation; because it is time enough to disaffirm the contract when its enforcement is sought.

But if an infant buys property, any unequivocal act of ownership after majority as selling it, for example is a confirmation. of the purchase. And, generally, a silent continued possession and use of the thing obtained by the contract is evidence of a confirmation; therefore, if an infant buys a horse, and gives his note for it, and after he is of age the seller puts the note in suit, the buyer may return the horse and refuse to pay the note; but if he keeps the horse, this is considered evidence of a confirmation of the note. The evidence of confirmation is much stronger if there be a refusal to redeliver the thing when it can be redelivered; and is generally conclusive when the conduct of the party must either be construed as a confirmation, or, if not so construed, must be regarded as fraudulent or wrongful. Thus, where an infant purchased a potashkettle, and gave his promissory note for the price, it being agreed by the parties that he might try the kettle, and return it if it did not suit him; and the vendor, after the infant became of age, requested him to return the kettle if he did not intend to keep it; but he retained and used it a month or two afterwards. The court held that this was a sufficient ratification of the contract, and that an action might be sustained on the note.

The great exception to the rule that an infant's contracts are voidable, is when the promise or contract is for necessaries. The rule itself is for the benefit and protection of the infant, and the same reason causes the exception; for it cannot be for the benefit of the infant or minor that he should be unable to purchase food, raiment, and shelter, on a credit, if he has no funds. The same reason, however, enlarges this exception, until it covers not only strict necessaries, or those without which the infant might perish, or

would certainly be uncomfortable, but all those things which are certainly appropriate to his person, station, and means.

There is no exact dividing line which could make this definition precise. But it is settled that mercantile contracts, as of partnership, purchase and sale of merchandise, promissory notes and bills, are not necessaries, and that all such contracts are voidable by the infant. So, if he gives his note even for necessaries, he is not bound by it; but may defend against it on the ground that it was for more than their true value; and the jury will be instructed to give against him only a verdict for so much as the necessaries were worth.

If he borrows money, to be expended in the purchase of necessaries, and gives his note, the debt, or the note, has been held, at law, voidable by the infant. But our courts would now hold an infant liable for such a debt; and it is well settled that an infant is liable for money paid at his request for necessaries for him; and if he give a note for necessaries with a surety who pays it, the surety may recover against the infant.

If an infant avoid a contract, he can take no benefit from it; thus, if he contracts to sell, and refuses to deliver, he cannot demand the price; or if he contracts to buy, and refuses the price, he cannot demand the thing sold.

An infant is as liable for torts (by torts or tortious acts the law means wrongs, or offences) as an adult; and, therefore, if he fraudulently represented himself as of age, when he was not, and so made a contract which he afterwards sought to avoid, this fraud will not prevent his avoiding the contract, but for damages caused by the fraud itself he is answerable just as an adult would be; and these damages might be measured by the contract. So if he disaffirms a sale, for which he has received the money, he must return the money; because keeping it would be a wrong, or else a confirmation of the sale. So if after his majority he destroys or puts out of his hands a thing bought while an infant, he cannot now demand his money back, as he might have done on tendering the thing bought; for by his disposal of it he has acted as owner, and confirmed the sale.

In general, if an infant avoids a contract on which he has advanced money, and it appears that he has received from the other party an adequate consideration for the money so advanced, which he cannot or will not restore, he cannot recover back the money which he advanced. But if an infant has engaged to labor for a certain period, and, after some part of the work is performed, rescinds the contract and ceases to do the work, he can recover for the work he has done, as much as that work was worth.

The contract of an infant is voidable only by him, or by those having a right to act for him, and not by the other party. The election to avoid or confirm belongs to the infant alone; and his having this right does not affect the obligation of the other party. Therefore, one who gives a note to an infant, or makes any other mercantile contract with him, must abide by it, unless the infant annuls it, which he can do if he chooses to.

But if the note were given or the contract made by a fraud on the part of the infant, the injured party has the same right of defending against it on this ground as if the fraudulent party were not an infant. And it is a universal rule of law that no contract which is tainted with fraud is valid against an innocent party; therefore, a wilfully false representation of the infant that he has reached his majority would be a fraud, and would enable the party dealing with him to set the contract aside.

Although in most of our States the law does not require that the confirmation or new promise of an adult, of a promise which he may avoid because it was made by him when an infant, must be in writing, it would always and everywhere be better and safer to have this new promise in writing. It should be in substantially this form:

(10.)

I, Henry Thompson, having promised Nathan Green, to (here describe the promise, whether by a note, or verbally, for goods bought, or the like, briefly, but so that there may be no mistake about it), and at the time of making that promise I was a minor, within the age of twenty-one years, now, in consideration of said promise, I do hereby confirm and acknowledge the same, and promise a full performance and execution thereof.

HENRY THOMPSON.

It would often be easier, if both parties assented, simply to give a new note for the amount due. But it might, in some cases, be better that the new promise should tell the story of the old promise, for which it is given.

GUARDIAN AND WARD.

Guardians of all descriptions take the place of parents, and are always treated by courts as trustees; and in almost all cases they are required to give security for the faithful discharge of their duty, unless the guardian be appointed by will, and the testator has exercised the power given him by statute, of requiring that the guardian shall not be called upon to give bonds. But, even in this case, such testamentary provision is wholly personal;