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 twentyone years. The age of twenty-one is the period of majority for both sexes, according to the English common law, and that age is completed on the beginning of the day preceding the anniversary of the person's birth. (a) The age of twenty-one is probably the period of absolute majority throughout the United States, though female infants, in some of them, have enlarged capacity to act at the age of eighteen. In Vermont and Ohio, females are deemed of age at the age of eighteen. (b) Louisiana follows, in this respect, the common-law period of limitation, though entire majority by the civil law, as to females as well as males, was not until the age of twenty-five; and Spain and Holland follow, as to males, the rule of the civil law. (c) By the French Civil Code, the age

(a) Anon. 1 Salk. 44. 1 Ld. Raym. 480. Sir Robert Howard's case, 2 Salk. 625. Hamlin v. Stevenson, 4 Dana (Ky.) 597. State v. Clarke, 3 Harr. Del. 557. (b) 9 Vermont, 42, 79.

(c) Inst. 1, 23. Partidas on Obligations, 5, 11, 5. Institutes of the Civil Law of Spain, b. 1, tit. 1, ch. 1, sec. 3. Institutes of the Laws of Holland, by Vanderlinden, b. 1, ch. 5, sec. 7. Code Civil, art. 388, 488. 1 Toullier, p. 153. Civil Code of Louisiana, art. 41, 93. The law of the domicil of birth governs the state and condition of the minor, into whatever country he removes, and his minority ceases at the period fixed by those laws for his majority. Barrera v. Alpuente, 18 Martin (Louis.) 69. This is the rule, as understood by many continental civilians. A person being a minor, or of majority by the law of his native domicil, carries that condition with him whereever he goes. Huberus, lib. 1, tit. 3, scc. 12. See, also, Boullenois and others, cited in Story on the Conflict of Laws, § 76, et seq. But this rule is to be taken with very important qualifications. The state and condition of the person, according to the law of his domicil, will generally, though not universally, be regarded in other countries as to acts done, or rights acquired, or contracts made, in the place of his native domicil; but

1 And in Illinois. Stephenson v. Westfall, 18 II. 209.

of full capacity is twenty-one years, except that twenty-five years is the majority for contracting marriage without paternal consent by the male, and twenty-one by the female. Code Civil, sec. 145, 488. Nor can infants 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 dis-234 cretion and capacity to discern right and wrong.1

(2.) Acts void or voidable.

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." (d) 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

as to acts, rights, and contracts done, acquired, or made, out of his native domicil, the lex loci will generally govern in respect to his capacity and condition. If, for instance, a person be a minor by the law of his domicil until the age of twenty-five, yet, in another country, where twenty-one is the age of majority, he may, on attaining that age, make in such other country a valid contract. Male v. Roberts, 3 Esp. 163. Thompson v. Ketcham, 8 Johns. 189. Story on the Conflict of Laws, pp. 96, 97, 364. Saul v. His Creditors, 17 Martin (Louis.) 597. Burge's Com. on Colonial and Foreign Laws, vol. i. 103–134. In respect to the control of real property, the law of the domicil yields to the ler rei sita. This is an acknowledged and universal principle. The continental authorities are cited numerously and at large, in the last work above mentioned, on the subject of minors and the law of majority. (d) Bingham on Infancy, 45.

1 See Regina v. Holmes, 2 Foster & Fin. 788, as to infants as witnesses.

*

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, (e) 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 to the application of this principle. In Zouch v. Parsons, (f) 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 (g) condemns that de* 235 cision 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 (a) undertakes to show, from reason and authority, that the decision in Burrow is well founded; and he insists (b) that all the deeds, 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. (c) 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; (d)1 and he is not liable for money borrowed, though applied to necessaries; (e) and his ac

(e) Whitney v. Dutch, 14 Mass. 457.

(f) 3 Burr. 1794.

(g) Treatise on Conveyancing, vol. ii. p. 249. Treatise on Abstracts of Title, vol. i. p. 324.

(a) Law of Infancy, ch. 2.

(b) See his work, p. 46; and also his preface.

(c) In Williams v. Moor, 11 Mees. & W. 256, it was held that an account stated by an infant was not to be distinguished in principle from goods sold, and was voidable only. The old authorities were overruled.

(d) Swasey v. Administrator of Vanderheyden, 10 Johns. 33. Trueman v. Hurst, 1 Term, 40. McCrillis v. How, 3 N. Hamp. 348. McMinn v. Richmonds, 6 Yerger, 1. Contra, Dubose v. Wheddon, 4 McCord, 221. In Everson v. Carpenter, 17 Wendell, 419, and in Reed v. Bachellor, 1 Metcalf, 559, it was adjudged that the promissory note of an infant was merely voidable, and could be made available by a new promise after he was of age. See, also, to the same point, 1 Berton N. B. 23, and that it is now the

better doctrine.

(e) Randall v. Sweet, 1 Denio, 460.

1 But it was held, in Gavin v. Burton, 8 Ind. 69, that a note given by the infant father of

a bastard child, on a settlement with the mother, is valid.

ceptance of a bill of exchange is void; (ƒ) and his contract as security for another is absolutely void; (g) and a bond with a penalty, though given for necessaries, is void. (h) It must be admitted, however, that the tendency of the modern decisions is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election when they become of age, either to affirm or disavow them. ()2 If their contracts were absolutely void, it would follow as a *236 consequence, that the contract could have no effect, and the party contracting with the infant would be equally discharged. (a) The doctrine of the case of Zouch v. Parsons has been recognized as law in this country, and it is not now to be shaken. (b) On the authority of that case, even the bond of

(ƒ) Williamson v. Watts, 1 Camp. 552.

(g) Curtin v. Patton, 11 Serg. & Rawle, 305.

*

(h) Co. Litt. 172 a, recognized as being still the law by Bayley J., in 3 Maule & Selw. 482.

(i) Wamsley v. Lindenberger, 2 Rand. 478. Lord Mansfield, in Zouch v. Parsons, 3 Burr. 1804, held the law to have been truly laid down by Perkins, sec. 12, that "all such gifts, grants, or deeds, made by an infant, which do not take effect by delivery of his hand, are void. But such gifts, grants, or deeds, made by an infant by matter of deed, or in writing, which takes effect by delivery of his own hand, are voidable. Chancellor Jones, in Stafford v. Roof, 9 Cowen, 626, adhered to this distinction, and held, that manual delivery was requisite to render the infant's deed of land or chattels voidable only. I apprehend that the modern rule, as now understood, is not quite so precise.

(a) 1 Fonb. Tr. of Eq. 74. In Goodsell v. Myers, 3 Wendell, 479, and Dubose v. Wheddon, 4 M'Cord, 221, it was held that the note of an infant was voidable and not void.

(b) Ch. J. Ruffin, in Hoyle v. Stowe, 2 Dev. & Bat. 324, 325, expresses his disapprobation of the decision in Zouch v. Parsons, with much force of reasoning, and he says it is not received as settled law. But in Bool v. Mix, 17 Wendell, 119, it was adjudged that a deed of bargain and sale made by an infant, was like a feoffment with livery of seisin, voidable only, and not absolutely void. The rule was even admitted to

Scott v. Buchanan, 11 Humph. 468. Cummings v. Powell, 8 Texas, 80. Cole v. Pennoyer, 14 III. 158. Courts have regarded as voidable an infant's appeal from a justice's decision. Robbins v. Cutler, 6 Foster, 173; his deed of gift to a trustee, Slaughter v. Cunningham, 24 Ala. 260; his bond for title, Weaver v. Jones, Id. 420; his exchange of property, Williams v. Brown, 34 Maine, 594; his covenant to carry and deliver money, West v. Penny, 16 Ala. 186; his indorsement of a note, Hardy v. Waters, 38 Maine, 450. The infant's release of a legacy has been held void, Langford v. Frey, 8 Humph. 433; so a mortgage by an infant feme covert of her reversionary interests, to secure the debts of a firm of which her husband is a member, is absolutely void, Cronise v. Clark, 4 Md. Ch. 403. See McCarty v. Murray, 3 Gray, 578.

an infant has been held to be voidable only at his election. (c) It is an equitable rule, and most for the infant's benefit, that his conveyances to and from himself, and his contracts, in most cases, should be considered to be voidable only. (d) Lord Ch. J. Eyre, in Keane v. Boycott, (e) undertook to reconcile the doctrine of void and voidable contracts on the ground that when the court could pronounce the contract to be to the infant's prejudice, it was void, and when to his benefit, as for necessaries, it was good; and when the contract was of an uncertain nature as to benefit or prejudice, it was voidable only at the election of the infant.2 Judge Story declared these distinctions to be founded in solid reason, (f) and they are considered to be so, and the point is not susceptible of greater precision.

(3.) Acts avoided or confirmed.

If the deed or contract of an infant be voidable only, it is nevertheless binding on the adult with whom he dealt, so long as it

remains executory, and is not rescinded by the infant. (g) *237 It is also a general rule, that no one but the infant * himself, or his legal representatives, can avoid his voidable deed or contract; for, while living, he ought to be the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit; and when dead, they alone should inter

be universal, that all deeds and instruments under seal executed by an infant, were voidable only, with the single exception of those which delegated a naked authority. See, also, Mr. Justice Story, in 10 Peters, U. S. 71, and the Eagle Fire Company v. Lent, 6 Paige, 635, S. P.; and this I regard as the general American law on the subject.

(c) Conroe v. Birdsall, 1 Johns. Cas. 127. A deed of bargain and sale of lands by an infant is voidable only. Wheaton v. East, 5 Yerg. (Tenn.) 41.

(d) Jackson v. Carpenter, 11 Johns. 539. Oliver v. Houdlet, 13 Mass. 237. Roberts v. Wiggin, 1 N. Hamp. 73. Wright v. Steele, 2 N. Hamp. 55. Kline v. Beebe, 6 Conn. 494.1

(e) 2 H. Blacks. 511.

(ƒ) 1 Mason, 82. Wheaton v. East, 5 Yerg. 41. M'Minn v. Richmonds, 6 Ibid. 1, S. P.

(g) Smith v. Bowen, 1 Mod. 25. Holt v. Ward, Str. 937. Warwick v. Bruce, 2 Maule & Selw. 205. Brown v. Caldwell, 10 Serg. & Rawle, 114.

1 Van Nostrand v. Wright, Hill & Denio (N. Y.) 260. Pitcher v. Laycock, 7 Ind. 398. Babcock v. Doe, 8 Ind. 110.

2 McGan v. Marshall, 7 Humph. 121. But see Tupper v. Cadwell, 12 Metcalf, 559. The beneficial contracts of infants are voidable only. N. H. M. F. Ins. Co. v. Noyes, 32 N. Hamp.