264

cannot protect himself from the rent by pretence of infancy, after enjoying the estate, when of age. If he receives rents, he cannot demand them again when of age, according to the doctrine as now understood. 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. (d) On the other hand, if he avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration which he had received. The privilege of infancy is to be used as a shield, and not as a sword.2 He cannot have the benefit of the contract on one side, without returning the equivalent on the other. (e) 3 But there are many hard cases in which the infant cannot be held bound by his contracts, though made in fraud; for infants would lose all protection, if they were to be bound by their contracts made by improper artifices, in the heed*241 lessness of youth, before they had learned the value of

character, and the just obligation of moral duties. When

(d) Kirton v. Elliott 2 Bulst. 69. Lord Mansfield, in Earl of Buckinghamshire v. Drury, 2 Eden, 72. Holmes v. Blogg, 8 Taunt. 35. M'Coy v. Huffman, 8 Cowen, 84. Harney v. Owen, 4 Blackf. Ind. 337. The case of M'Coy v. Huffman was overruled in Medbury v. Watrous, 7 Hill (N. Y.) 110, on the principle that when an infant avoids his contract on coming of age, he may recover for work done or money paid in part performance, provided he has not received any benefit under the contract.1

(e) Badger v. Phinney, 15 Mass. 359. Roberts v. Wiggin, 1 N. Hamp. 73. Roof v. Stafford, 7 Cowen, 179. Parker J. in Hamblett v. Hamblett, 6 N. Hamp. 339. v. Evans, 5 Humph. (Tenn.) 70. Kitchen v. Lee, N. Y. Ch. 3 N. Y. Legal Observer, Smith

160.

1 Whitmarsh v. Hall, 3 Denio, 375. Corpe v. Overton, 10 Bing. 252. Aldrich v. Abrahams, Hill & Denio, 423. Breed v. Judd, 1 Gray, 455. Where an infant paid a bonus to be admitted into a partnership and before he became of age disaffirmed the contract, having enjoyed the benefit of the partnership, it was held that he could not recover back the money paid, nor prove it as a debt in bankruptcy. 8 De G. M. & G. 254. When an infant avoids his contract for service, he may recover in quantum meruit the value of the services rendered. Hoxie v. Lincoln, 25 Vermont, 206. Wheatley v. Miscal, 5 Porter (Ind.) 142. Lufkin v. Mayall, 5 Foster, 82.

2 See Carr v. Clough, 6 Foster, 280; Bartholomew v. Finnemore, 17 Barb. (N.Y.) 428; Strain v. Wright, 7 Geo. 568; but the infant shall not be deprived of his privilege of avoidance, if he has disposed of the consideration during his minority, and sò cannot restore it. Price v. Furman, 1 Wms. (Vt.) 268; and see Manning v. Johnson, 26 Ala. 446. It seems that if an infant suffers another to purchase his property, without informing such person of his ownership, he cannot recover the property of the purchaser. Hall v. Timmons, 2 Rich. Eq. 120. But see Norris v. Wait, 2 Rich. (Law) 148. If he purchase land, and gives notes or a mortgage therefor, he cannot disaffirm the notes or mortgage, and claim the land. Weed v. Beebe, 21 Vermont, 495. Bailey v. Barnberger, 11 B. Mon. 113. See Heath v. West, 8 Foster, 101, Carr v. Clough, 6 Foster, 280.

Kitchen v. Lee, 11 Paige, 107.

an infant had fraudulently represented himself to be of age when he gave a bond, it was held that the bond was void at law. (a) But where he obtained goods upon his false and fraudulent affirmation that he was of age, though he avoided payment of the price of the goods, on the plea of infancy, the vendor was held entitled to reclaim the goods, as having never parted with his property in them; (b) 2 and it has been suggested, in another case, (c) that there might be an instance of such gross and palpable fraud committed by an infant arrived at the age of discretion, as would render a release of his right to land binding upon him. Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts or frauds. (d) 3 But the fraudulent act, to charge him, must be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover, or case, by a change in the form of the action. (e) He is liable in trover for tortiously converting goods

(a) Conroe v. Birdsall, 1 Johns. Cas. 127. Burley v. Russell, 10 N. Hamp. 184. (b) Badger v. Phinney, 15 Mass. 359. Fitts v. Hall, 9 N. Hamp. 441. Com. Dig. Action on the case for Deceit, A. 10. In this last case, Lord Ch. B. Comyns held an infant liable for deceit in obtaining a loan of money on the fraudulent affirmation that he was of age. Burley v. Russell, sup. S. P.1

(c) Stoolfoss v. Jenkins, 12 Serg. & Rawle, 399.

(d) Fitts v. Hall, 9 N. Hamp. 441, 448. They are liable for trespasses committed by them, even though acting by command of the father. Humphrey v. Douglass, 10 Vermont, 71.

(e) Jennings v. Rundall, 8 Term, 335. Johnson v. Pie, 1 Lev. 169. Vasse v. Smith, 6 Cranch, 226. West v. Moore, 14 Vermont, 447. Wilt v. Welsh, 6 Watts, 1. In this last case, the decisions were elaborately considered; and it was held, that whenever the

1 See Price v. Hewett, 18 E. L. & Eq. 522, and editor's note; Merriam v. Cunningham, 11 Cush. 40; Walker v. Davis, 1 Gray, 506. An infant having, on the false representation made by him that he was of age, obtained a loan, the lender was allowed to prove for it in bankruptcy. Ex parte Unity Mut. Bank'g Ass. 3 De G. & J. 63. But where an infant of seventeen about to marry a widow of thirty-two, agreed, in a deed of settlement, to pay to a trustee £1,000, and he falsely represented to the widow's solicitor that he was of age, the widow knowing he was not, it was held that the payment could not be compelled. Nelson v. Stocker, 4 De G. & J. 458.

A defendant is not estopped from setting up infancy as a defence to a contract, by his fraudulent representations that he was of age. Merriam v. Cunningham, 11 Cush. 40. And it is not a legal fraud if one repudiate an agreement made by him during infancy, even though he may have enjoyed the fruits of such agreement. Burns v. Hill, 19 Geo. 22. 3 Baxter v. Bush, 3 Wms. (29 Vt.) 465.

4 Infancy is a good bar to an action founded on a false and fraudulent warranty. Morrill v. Aden, 19 Vermont 505. Prescott v. Norris, 32 N. Hamp. 101.

intrusted to him, or for fraudulently obtaining goods with an intention not to pay for them; (f) and in detinue, for goods delivered upon a special contract for a specific purpose; (g) and in assumpsit, for money which he has fraudulently embezzled. (h)

*242

* An infant has a capacity to do many other acts valid in law. He may bind himself as an apprentice, or make a contract for service and wages, it being an act manifestly for his benefit; but, when bound, he cannot dissolve the relation. (a) The weight of opinion is, that an infant may make a testament of chattels, if a male, at the age of fourteen, and if a female, at the age of twelve years. (b). He may convey real estate, held as a naked trustee, under an order in chancery. The equity jurisdiction in this case is grounded on the statute of 7 Anne, c. 19, which has been reënacted in this country, (c) and extends only to

substantive ground of an action against an infant is contract, as well as where the contract is stated as an inducement to a supposed tort, he is not liable; and the case of Campbell v. Stakes, 2 Wendell, 137, was considered as opposed equally to principle and authority. This last case was one of wilful and positive fraud and tort on the part of the infant, and subsequent to the contract, and was a wilful and distinct wrong; and the infant was held liable in trespass, and I think justly; and the judgment was affirmed on error, and cited and approved in Fitts v. Hall, 9 N. Hamp. 445. See, further, Price v. Hewett, 18 E. L. & Eq. 522; Grove v. Nevill, 1 Kebble, 778; Green v. Greenbank, 2 Mar. 485; Towne v. Wiley, 23 Vermont, 361.

(ƒ) Homer v. Thwing, 3 Pick. 492. Peigne v. Sutcliffe, 4 M'Cord, 387. Wallace v. Morss, 5 Hill (N. Y.) 391. His property is liable for fines and costs on conviction of a public offence. Beasley v. The State, 2 Yerger (Tenn.) 481.

(g) Mills v. Graham, 4 Bos. & Pull. 140. In New York, the action of detinue is abolished, and an action of trespass on the case may be brought to recover damages, even for a wilful injury, accompanied with force. By this innovation, all nice questions concerning direct and consequential injuries are avoided. But the want of such an action as detinue to recover a favorite or necessary specific chattel in specie, may be seriously felt. N. Y. Revised Statutes, vol. ii. p. 553, sec. 15, 16.

(h) Bristow v. Eastman, 1 Esp. 172. Elwell v. Martin, 32 Vermont, 217. By the N. Y. Revised Statutes, vol. ii. p. 341, sec. 12, no action relating to real property is to be delayed by reason of the infancy of any defendant, and a guardian is to be appointed to defend his rights.

(a) Rex v. Inhabitants of Wigston, 3 Barn. & Cress. 484. Wood v. Fenwick, 10 Mees. & W. 195.

(b) Harg. n. 83 to lib. 2 Co. Litt. Mr. Hargrave has collected all the contradictory opinions on this point. The civil law gives this power to the infant at the age of seventeen years; and this period has been adopted by statute in Connecticut. In New York, the period fixed by statute for an infant to make a will of chattels is the age of eighteen in males and sixteen in females. N. Y. Revised Statutes, vol. ii. p. 60.

(c) N. Y. Revised Statutes, vol. ii. p. 194, sec. 167. The N. Y. statute declares, that whenever the infant is seised or possessed of any lands by way of mortgage, or in trust

plain and express trusts. Whatever an infant is bound to do by law, the general rule is, that the same will bind him if he does it without suit at law. (d) If, therefore, he be a tenant in common, he may make a reasonable partition. (e). He may discharge a mortgage, on due payment of the mortgage debt. His acts as executor, at the age of seventeen, will bind him, unless they bo acts which would amount to devastavit. (f) There was

no occasion * said Lord Mansfield, (a) to enumerate in- *243 stances. The authorities are express, that if an infant does a right act, which he ought to do, and which he was compellable to do, it shall bind him. We have already seen that an infant of fourteen, if a male, and twelve if a female, may enter into a valid contract of marriage; but he is not liable to an action on his executory contract, to marry, though the infant may sue an adult on such a promise. (b) 1

(5.) Their marriage settlements.

In consequence of the capacity of infants, at the age of consent, to contract marriage, their marriage settlements, when reasonable, have been held valid in chancery; but it has long been an unsettled question whether a female infant could bind her real estate by a settlement upon marriage. In Drury v. Drury, (c) Lord Ch. Northington decided that the statute of 27 Hen. VIII., which introduced jointures, extended to adult women only, and that not

only for others, the Court of Chancery, on the petition of the guardian of the infant, or of any person interested, may compel the infant to convey the same.

(d) Co. Litt. 172 a.

(e) Bavington v. Clarke, 2 Penn. 115.

(f) In New York he is declared to be incompetent, and I think very properly, to act as an executor or administrator. N. Y. Revised Statutes, vol. ii. p. 69. Ibid. 75. (a) 3 Burr. 1801.

(b) Hunt v. Peake, 5 Cowen, 475. In New York, the Court of Chancery is authorized to decree and compel the specific performance of contracts by the infant who is a representative of the party making them. N. Y. Revised Statutes, vol. ii. p. 194, sec. 169. As to the sale, under the direction of the Court of Chancery, of the real estates of infants, see preceding lecture.

(c) 2 Eden, 39.

1 The People v. Moores, 4 Denio, 518.

Harvey v. Hall, Id. 211. He
Thompson v. Lyon, 20 Miss.

1 An infant may be deputed by the sheriff to serve a particular writ; Barrett v. Seward, 22 Vermont, 176; but not by the authority who signs the writ. may execute a mere power. Sheldon v. Newton, 3 Ohio, 494. 155. Hamilton v. Lomax, 26 Barb. (N. Y.) 615.

withstanding a jointure on an infant, she might waive the jointure, and elect to take her dower; and that a female infant could not, by any contract previous to her marriage, bar herself of a distributive share of her husband's personal estate, in case of his dying intestate. This decree was reversed in the House of Lords, upon the strength of the opinions of Lord Hardwicke, Lord Mansfield, and the majority of the judges; (d) and the great question finally settled in favor of the capacity of the female infant to bar herself, by her contract before marriage, of her right of dower in the husband's land, and to her distributive share of her husband's *244 personal estate. In New York, * in a late case in chan

cery, (a) the question whether an infant could bind herself by an antenuptial contract, was discussed at large, and it was held that a legal jointure, settled upon an infant before marriage, was a bar of her dower; and that an equitable provision settled upon an infant in bar of dower, and to take effect immediately on the death of the husband, and to continue during the life of the widow, and being a reasonable and competent livelihood for the wife under the circumstances, was also a bar. The question still remains, whether she has the capacity to bind her own real estate by a marriage settlement. Mr. Atherly, (b) after reviewing the cases, concludes that the weight of the conflicting authorities was in favor of her capacity so to bind herself. But in Milner v. Lord Harewood, (c) Lord Eldon has subsequently held that a female infant was not bound by agreement to settle her real estate upon marriage, if she did not, when of age, choose to ratify it; and that nothing but her own act, after the period of majority, could fetter or affect it; and in Temple v. Hawley, 1 Sandford's Ch. R. 153, the assistant vice-chancellor, in a very elaborate and able judgment, held that a female infant was not so bound by a marriage settlement of her real estate, but that she might disaffirm it when she became of age, and was sole. The assistant vice-chancellor said, the preponderance of opinion was, that the infant could not elect after she became of age during coverture to affirm it, though

(d) 2 Ibid. 60-75. Wilmot's Opinions, p. 177.

(a) M'Cartee v. Teller, 2 Paige, 511.

(b) Treatise on Marriage Settlements, pp. 28-41. (c) 18 Vesey, 259.

1 Levering v. Levering, 3 Maryl. Ch. 365. Levering v. Heighe, 2 Maryl. Ch. 81.