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, (a) 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, (b) 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 (c) condemns that decision in the most peremptory terms, as confounding * 235 all distinctions and authorities on the point; and he says that Lord Eldon repeatedly questioned its accuracy. On the other hand, Mr. Bingham (d) undertakes to show, from reason and authority, that the decision in Burrow is well founded; and he insists (e) 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. (ƒ) 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; (g) and he is not liable

(a) Whitney v. Dutch, 14 Mass. Rep. 457.

(b) 3 Burr. 1794.

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

(d) Law of Infancy, ch. 2.

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

(f) In Williams v. Moor, 11 Meeson & Welsby, 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.

(9) Swasey v. Administrator of Vanderheyden, 10 Johns. Rep. 33. Trueman v. Hurst, Term Rep. 40. M'Crillis v. How, 3 N. H. Rep. 348. M'Minn v. Richmonds, 6 Yerger, 1. Contra, Dubose v. Wheddon, 4 M'Cord's Rep. 221. In Everson v. Carpenter, 17 Wendell, 419, and in Reed v. Bachellor, 1 Metcalf's Rep. 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's N. B. Rep. 23, and that it is now the better doctrine.

for money borrowed, though applied to necessaries; (a) and his acceptance of a bill of exchange is void; (b) and his contract as security for another is absolutely void; (c) and a bond with a penalty, though given for necessaries, is void; (d) 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

became of age, either to affirm or disavow them. (e)1 If * 236 their contracts were absolutely void, it would follow as a consequence, that the contract could have no effect, and the party contracting with the infant would be equally discharged. (f) 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. (g) On the authority of that case, even the bond of an

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

(b) Williamson v. Watts, 1 Campb. N. P. 552. (c) Curtin v. Patton, 11 Serg. & Rawle, 305.

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

(e) Wamsley v. Lindenberger, 2 Randolph's Rep. 478. Lord Mansfield, in Zouch v. Parsons, 3 Burr, Rep. 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's Rep. 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.

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

(g) Ch. J. Ruffin, in Hoyle v. Stowe, 2 Dev. & Battle, 324, 325, expresses his dis

1 Scott v. Buchanan, 11 Humph. 468. Cummings v. Powell, 8 Tex. 80. Cole v. Pennoyer, 14 Ill. 158. Courts have regarded as voidable an infant's appeal from a justice's decision, Robbins v. Cutler, 6 Fost. 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. 443; 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.

infant has been held to be voidable only at his election. (a) 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. (b) Lord Ch. J. Eyre, in Keane v. Boycott, (c) 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.' Judge Story declared these distinctions to be founded in solid reason, (d) 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. (e) It is also a general rule, that no one but the infant *himself, or his legal representatives, can avoid his void *237 able deed or contract; for while living, he ought to be

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

(a) 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 Yerger's Tenn. Rep. 41.

(b) Jackson v. Carpenter, 11 Johns. Rep. 539. Oliver v. Houdlet, 13 Mass. Rep. 237. Roberts v. Wiggin, 1 N. H. Rep. 73. Wright v. Steele, 2 N. H. Rep. 55. Kline v. Beebe, 6 Conn. Rep. 494.

(c) 2 H. Blacks. Rep. 511.

(d) 1 Mason's Rep. 82. Wheaton v. East, 5 Yerger's Rep. 41. M'Minn v. Richmonds, 6 ibid. 1, S. P.

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

1 McGan v. Marshall, 7 Humph. R. 121. But see Tupper v. Cadwell, 12 Met. R. 559.

the exclusive judge of the propriety of the exercise of a personal privilege intended for his benefit; and when dead, they alone should interfere who legally represent him. (a)1 The infant's privilege of avoiding acts which are matters of record, as fines, recoveries, and recognizances, is much more limited, in point of time, than his privilege of avoiding matters en pais. The former must be avoided by him by writ of error, or audita querela, during his minority, when his nonage can be tried by the court by inspection; but deeds, writings, and parol contracts may be avoided during infancy, or after he is of age, by his dissent, entry, suit, or plea, as the case may require. (b) If any act of confirmation be requisite after he comes of age, to give binding force to a voidable act of his infancy, slight acts and circumstances will be a ground from which to infer the assent; but the books appear to leave the question in some obscurity, when and

to what extent a positive act of confirmation on the part *238 of the infant is requisite.2 In Holmes *v. Blogg, (c) the

(a) 8 Co. 42, b. Keane v. Boycott, 2 H. Blacks. Rep. 511. Van Bramer v. Cooper, 2 Johns. Rep. 279. Jackson v. Todd, 6 ibid. 257. Oliver v. Houdlet, 13 Mass. Rep. 237. Roberts v. Wiggin, 1 N. H. Rep. 73. Privies in estate cannot avoid the infant's deed. Hoyle v. Stowe, 2 Dev. & Battle, 323.

(b) Co. Litt. 380 b. Com. Dig. tit. Enfant, C. 3, 5, 9, 11. Cro. Car. 303, 306. In Roof v. Stafford, 7 Cowen's Rep. 179, it was held by the Supreme Court of New York, that a sale of chattels by an infant was not any more than a conveyance of land, voidable till he came of age. This was settled as to conveyances of land by the case of Zouch v. Parsons. But in the same case, on error, 9 Cowen's Rep. 626, Chancellor Jones held, that the infant might avoid a sale of chattels while an infant, but not a sale of land. In the latter case he could enter and take the profits until of age; but where the possession was changed, and he had no legal means to regain it, he might exercise the power of rescission immediately. The act of avoidance is allowed only during infancy, when necessary, inasmuch as the infant lacks discretion to exercise it. The case in 9 Cowen is an authority that an infant may avoid, during infancy, a sale of chattels, and bring trover by his guardian to recover them. So it was afterwards held in Bool v. Mix, 17 Wendell, 119, that a sale and delivery of chattels by an infant might be avoided while under age, but that a deed of lands executed by an infant could not, until he came of age, though he might enter and take the profits in the mean time.1

(c) 8 Taunt. Rep. 35.

1 Slocum v. Hooker, 13 Barb. R. 536.

2 Harris v. Wall, 1 Wels. Hurl. & Gor. R. 122, 128. Ferguson v. Bell, 17 Mis. 347. Dunlap v. Hales, 2 Jones, 381.

3 Shipman v. Horton, 17 Conn. R. 481. Carr v. Clough, 6 Fost. 280.

4 Cummings v. Powell, 8 Texas, 80.

chief justice observed, that in every instance of a contract, voidable only by an infant on coming of age, he was bound to give notice of disaffirmance of the contract in a reasonable time. The inference from that doctrine is, that without some act of dissent, all the voidable contracts of the infant would become binding. But there are other cases which assume that a voidable contract becomes binding upon an infant after he comes of age, only by reason of acts or circumstances, amounting to an affirmance of the contract. (a) In the cases of Jackson v. Carpenter, and Jackson v. Burchin, (b) the infant had disaffirmed the voidable deed of his infancy, which was by deed of bargain and sale, by an act equally solemn, after he became of age. (c) This is the usual and suitable

(a) Evelyn v. Chichester, 3 Burr. Rep. 1717. 1 Rol. Abr. tit. Enfants, K. Co. Litt. 51 b. Hubbard v. Cummings, 1 Greenleaf's Rep. 11. Aldrich v. Grimes, 10 N. H. Rep. 194. In Holmes v. Blogg, 8 Taunt. Rep. 508, it is remarkable that the distinguished counsel in that case, one of whom is now (1827) lord chancellor, and the other chief justice of the C. B., treat this as an open and debatable point. Sergeant Copely insisted, that the infant's contract was binding on him when he became adult, because there had been no disaffirmance of it; and Sergeant Best contended that disaffirmance was not necessary, and that infants were not bound by any contract, unless the same was affirmed by them after arriving at full age; and this is the decision in 4 Pick. Rep. 48. It has been held that an infant's conveyance may be disaffirmed at any time, so long as an action of ejectment is not barred by the statute of limitations. Lessee of Drake v. Ramsay, 5 Hammond's O. Rep. 251. Jackson v. Carpenter, 11 Johns. Rep. 539 to S. P. And in South Carolina, it is held that a simple declaration of the infant, on his coming of age, is not a sufficient confirmation of his voidable contract, unless it be accompanied by some act which recognizes the validity of the obligation. Ordinary v. Wherry, 1 Bailey's Rep. 28. In Wheaton v. East, 5 Yerger's Tenn. Rep. 41, the decision was, that a deed of confirmation of the minor's deed was not requisite, but that any act of the minor from which his assent of the deed executed during his minority might be inferred, would operate as a confirmation, and conclude him.1

(b) 11 Johns. Rep. 539. 14 Ibid. 124. In Tucker v. Moreland, 10 Peters's U. S. Rep. 73, it was observed by Mr. Justice Story, that those two cases in Johnson proceeded upon principles which were in perfect coincidence with the common law. In the case in Peters, the question arising on the void and voidable acts of infants, and when they were to be deemed confirmed or disaffirmed, are fully and learnedly discussed in the opinion pronounced by the court.

(c) A conveyance by an infant of the same land to another person after he comes of age, effectually avoids a deed of bargain and sale made in infancy. Hoyle v. Stowe, 2 Dev. & Battle, 320. The New York case of Bool v. Mix, 17 Wendell, 119, seems

1 The sale of lands received during infancy, in exchange for other lands, is a confirmation of the original deed of conveyance. Williams v. Mabee, 3 Halst. Ch. 500.