LAW OF INFANCY AND COVERTURE.·

PART I.

LAW OF INFANCY.

CHAPTER I.

WHO ARE INFANTS- GENERAL DISABILITIES IMPOSED UPON INFANTSCANNOT APPLY TO BODIES POLITIC-ILLUSTRATIONS.

1. MAN, upon his entrance into the world, is entirely incapable of protecting himself; and his natural powers and faculties, both physical and moral, require a number of years for their complete development. Probably there is no creature so helpless at birth as the human being. The law has, therefore, wisely imposed upon man, for a limited period, certain disabilities, and endued him with certain privileges, which are implied in the term infant.

By the common law, which generally prevails in this country, no person acquires fully all his political and civil rights until he has completed the age of twenty-one years, at which time his infancy terminates. This rule, however, does not prevail in all systems of jurisprudence.

By the civil law which obtains in Spain and some other countries, emancipation does not take place until the infant is twenty-five. The selection of twenty-one, rather than any other period, by the common law, as the age of majority, is supposed to have originated in the feudal system, which regarded the subject as first physically capable at that age, if a male, of doing knight's service, and following his lord to the wars; and if a female, not before of a suitable age to marry any one upon whom those duties would devolve. (Bingham on Infancy, 1, Note 1.)

No period could be selected for the termination of infancy which would be entirely equal, for the reason that some persons mature earlier than others. But the law must prescribe some age for the infant, and probably twenty-one years is as And it may be suggested, as an interesting fact, divided into four periods, each of which is a Natural infancy ends at seven years; puberty begins at fourteen years; legal infancy ends at twenty-one years; and the natural life of a man is three-score years and ten. (Story on Contracts, 2d ed. § 55.)

emancipation of the well as any other. that human life is multiple of seven.

§ 2. In law, a person is reputed to be twenty-one years of age, on the opening of the last day of the twenty-first year of his life, although, by the natural computation of time, several hours might intervene before he actually attains to the full age of twenty-one years. For example, a man born on the first day of February, 1600, after eleven o'clock at night, was adjudged to be of full age the second minute after one o'clock on the morning of the last day of January, 1621. (Anonymous, 1 Salk. R. 44.) Here it will be observed that the individual had not lived twenty-one years by about forty-eight hours; and if the birth were on the last second of one day, and the act on the first second of the preceding day, twentyone years after, then twenty-one years would be complete, because the law recognizes no fraction of a day, and it is the same whether a thing is done upon one moment of a day or on another. (1 Black. Com. 464, note 12, by Chitty. Sir Robert Howard's case, 2 Salk. R. 625. Roe v. Hersey, 3 Wilson R. 274. Herbert v. Turball, Keble's R. 589. Nichols v. Ramsey, 2 Mod. R. 281. Fitzhugh v. Dennington, 6 ib. 260. Hamlin v. Stevenson, 4 Dana's [Ky.] R. 97. State v. Clark, 3 Harring. [Del.] R. 557. Anon. 1 Raym. R. 480. 20 Am. Jur. 252.)

§ 3. By the English common law, the period at which the person attains to the full age of majority is the same for both sexes; but, in some of the American States, females are considered of age at eighteen. Thus, in Vermont, it is declared by statute that males of the age of twenty-one years, and females of the age of eighteen years, shall be considered of full age for all purposes, and that before those ages they shall be considered minors. (R. S. 1863, ch. 72, § 1. Sparhawk v. Buell's Adm. 9 Vt. R. 41. Young v. Davis, Bray. R. 124.)

So, also, in the State of Illinois, it has been held that females. there attain majority at eighteen years of age. (Stevenson v. West

fall, 18 Ill. R. 209. Kester v. Stark, 19 ib. 328.) The same is the law in Ohio. (1 R. S. ch. 56, § 1.)

In Maryland, female infants, on attaining the age of eighteen, have the right to dispose of their real estate by will, but with this, and perhaps another statutory exception, the common law is applied to females, as well as males. (Maryland Code, Art. 93, § 300. Corrie's case, 2 Bland's Ch. R. 488.)

In Nebraska it is declared by statute that males shall be regarded at full age at twenty-one, and females at eighteen (R. S. ch. 22, §1); and in the State of Texas it is provided by statute that every female under twenty-one years of age who shall marry in accordance with the laws of the state, after such marriage, shall be deemed to be of full age. (Oldham and White's Digest of Laws, Art. 1400.) This provision of the statute has been held to apply to all marriages, but not to legalize acts before the passage of the act (Chubb v. Johnston, 11 Texas R. 469); and further it is held that the statute of limitations commences to run at the date of the marriage. (White v. Latimer, 12 Tex. R. 61.)

When the exception exists, it is probably upon the assumption. that females possess as much discretion at eighteen as males at twenty-one; and it is a fact that females, as a general rule, mature about three years earlier than males. On the contrary, among the ancient Greeks and Romans, women were never of age, but were subject to perpetual guardianship, unless when married, "nisi convenissent in manum viri"-or, in plain English, except when they come into the husband's possession; and when that perpetual tutelage wore away in process of time, full age, in females as well as males, was not till twenty-five years. (1 Black. Com. 464, citing Inst. 1, 23, 1.)

4. Upon the general principle that all laws which regard majority, minority and emancipation are personal, the law of the domicile of birth has been held to govern the state and condition of the minor into whatever country he may remove, and that his minority ceases at the period fixed by such law for his majority. (Barrera v. Alpuente, 18 Martin's [Louis.] R. 69.) And Judge Story lays down the doctrine, as well maintained by the most eminent foreign jurists, that a person who has attained the age of majority by the law of his native domicile is to be deemed everywhere the same, of age; and, on the other hand, that a person who is in his minority by the law of his native domicile is to be deemed

everywhere in the same state or condition. (Story on Conflict of Laws, 52, and authorities cited.) The same doctrine has been recognized by the old supreme court of the State of New York. (Thompson v. Ketcham, 8 Johns. R. 189.) This does not necessarily conflict with the rule that, upon a change of domicile, the capacity or incapacity of the person is regulated by the law of the new domicile; or, as Pothier lays it down, "the change of domicile delivers persons from the empire of the laws of the place of the domicile they have quitted, and subjects them to those of the new domicile they have acquired." (Story on Conflict of Laws, 69.) The lex loci generally governs in respect to the capacity and condition of the person, as to acts, rights and contracts done, acquired or made out of his native domicile; but as to acts done, or rights acquired, or contracts made, in the place of his native domicile, the state and condition of the person, according to the law of his domicile, will generally be regarded in other countries. For example, if a person be a minor by the law of his domicile 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. (2 Kent's Com. 234, note c.) But in the case supposed, had the contract been made in the place of his native domicile, even at the age of twenty-four years, the contract could not be enforced in the other country where the age of majority was at twenty-one. The general rule as to contracts is, that the lex loci contractus governs as to the nature, validity, construction and effect of the contract, and the lex fori as to the remedy. When the provisions of the law render the contract void or terminated in any way, the lex loci always applies. (Vide Garet v. Frank, 36 Barb. [N. Y.] R. 328.)

5. The incidents, however, which the law has attached to infants in their natural capacity do not extend to them in the exercise of corporate or political functions, as imbecility and inexperience are not supposed to form a part of those abstract existences which are constituted for the mere performance of public service, and so far as that is concerned the natural properties of the infant merge in his political capacity, "to which age is neither material nor imputable." (Bro. Age.) Therefore, as has been well said, if the King, within age, consent to an act of parliament, or make any lease or grant, he is bound presently, and cannot after avoid them, either during his minority or when he comes of full age, for the