A vora act never is, and never can be binding, either on the party with whom it originated, or on others. No person claiming through or under it can succeed, and the void act can never at any time or by any means be confirmed or rendered valid. (Bing. on Inf. 9.) Any person interested may take advantage of a void act of an infant, which is not the case when the act is simply voidable. It is a matter of great importance, therefore, to ascertain, if possible, what acts of an infant are void, and what are merely voidable; and here Chancellor Kent has well said that, "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. (2 Kent's Com. 234.)

Two rules are stated by Mr. Bingham (Bing. on Inf. 9) to assist us in coming to a conclusion upon the subject, but he adds that "neither of them, on examination, will be found satisfactory." The first given is from Perkins, an ancient writer (Perkins, § 12), "that all gifts, grants or deeds made by infants, which do not take effect by delivery of his hand, are void." To this Mr. Bingham suggests, "that if the rule held good in all cases, a parol lease for years made by an infant would be absolutely void," while it cannot be denied that "the infant could recover in an action for rent arrears on such lease," and hence the inference that the lease would be "clearly only voidable." This rule of Perkins, however, was approved by Lord Mansfield in a special case of ejectment, when the question was "whether an infant's conveyance by lease and release was absolutely void, or only voidable," Lord M. asserting,"we think the law is as laid down by Perkins." (Zouch v. Parsons, 3 Burr. R. 1804.)

On the contrary, Chancellor Jones in a case decided in the late court of errors of the State of New York, says: "Some of the old writers seem to make a distinction between deeds and other contracts of infants accompanied by manual delivery; but the distinction is now discarded, and the same effect is given to both." (Stafford v. Roof, 9 Cow. R. 626.) At all events, as Mr. Bingham remarks, "the rule comprehending only gifts, grants and deeds is not sufficiently extensive for general application." (Bing. on Inf. 10.)

§ 9. The second rule referred to by Mr. Bingham is, "that those acts are void in which there is no semblance of benefit to the

infants." (Bing. on Inf. 11.) This rule does not seem to have received the full sanction of Mr. Bingham; and Mr. Justice Wilde, of the supreme judicial court of Massachusetts, over fifty years ago, averred that it would be more correct to say, "that those acts of an infant are void which not only apparently, but necessa rily, operate to his prejudice," and further, that "the benefit of the infant is the great point to be regarded; the object of the law being to protect his imbecility and indiscretion from injury, through his own imprudence, or by the craft of others." (Oliver v. Houdlet, 13 Mass. R. 237.)

"This

The rule was laid down by Eyre, Ch. J., of the court of common pleas of England, that those contracts of infants only were void which "the court can pronounce to be to their prejudice." (Keene v. Boycott, 2 H. Bl. R. 515.) This is undoubtedly the doctrine of the current of the English authorities, with the understanding, perhaps, that it must be apparent upon the face of the instrument or transaction that it is to the prejudice of the infant; and this is probably the most intelligible rule upon the subject which can be extracted from the decisions in this country; although the rule is often exceedingly difficult of application, liable to many exceptions, and by no means satisfactory. Chief J. Bronson, of the New York supreme court, after stating the doctrine laid down by Lord Ch. J. Eyre in the case of Keene v. Boycott, supra, says: may answer well enough as a general rule, but it must be subject to exceptions." (Fonda v. Van Horne, 15 Wend. R. 635.) The subject has undergone no inconsiderable discussion in the American courts, including the supreme court of the United States, and the result is about as above stated. (Vide Tucker v. Moreland, 10 Peter's R. 70. Also Vent v. Osgood, 19 Pick. R. 572. Lawson v. Lovejoy, 8 Greenl. R. 405. Fridge v. The State, 3 Gill & John. [Md.] R. 104. Wheaton v. East, 5 Yerger's [Tenn.] R. 41. Kline v. Beebe, 6 Conn. R. 494.) The reason of the rule in favor of the infants, as stated by Story in his treatise on contracts, is, that "in such case the presumption is almost irresistible that some unfair advantage has been taken of him, or some injurious influence has been exerted;" and he adds, "the only difference in this respect between the contracts of adults and infants is, that in the one case injury is only evidence of imposition, while in the other it is allowed as an uncontrollable presumption thereof, because of the inexperience of the infant." (Story on Con. 2d ed. § 57.)

§ 10. The tendency of modern decisions, and the opinion of elementary writers, 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 susceptible of ratification or disaffirmance, at their election, when they become of age. (2 Kent's Com. 235.)

Mr. Bingham confidently asserts that in his day it could be successfully contended, that few of the acts of an infant were absolutely void, and he maintained his position upon these grounds: First, on the principle of the law relating to infants, which is to protect the infant against the effects of his own weakness; and if this protection can be effectually secured to him by any means short of inflicting a detriment on innocent persons, it is argued that such infliction must be unnecessary and unjust. To consider any acts of an infant absolutely void, might operate to his own protection, but it would in many cases seriously affect the rights of persons in nowise implicated in the infant's transactions, and might not unfrequently be prejudicial to himself. It is thought, therefore, that it would rarely be a greater indulgence to the infant, and more for his advantage, to allow him, when he comes of age and is capable of reconsidering what he has done, either to ratify and affirm all his deeds and contracts, or to break through and avoid them; and he contends that this power should be extended, as well to those acts which may turn out to the infant's disadvantage, as to those which are apparently beneficial. The giving infants such power in general over all their acts, he insists, will sufficiently secure them against the danger of being overreached by others; for when the power is general, and all persons who deal with an infant know they are to be at his mercy, this will take off from the temptation of imposing on him; yet, since the infant is at liberty to rescue himself by avoiding the injurious contract, it seems no possible mischief could arise by suffering it in the meantime to hang in equilibrio, and deferring to pronounce any sentence upon it, since that would curtail the infant's privilege, and take off from his freedom of judging at all. This is substantially Mr. Bingham's reasoning upon the first ground taken to sustain his position, and though it is not entirely free from criticism, it would seem to be quite satisfactory. (Bing. on Inf. 13–16.)

§. 11. The second ground assumed by Mr. Bingham to maintain the position, that few if any of the infant's acts are void, is that it

accords with the principles of pleading.

This is more a prin

ciple of practice, and of course has not the merit of the first ground. Any thing which at common law renders a deed absolutely void, as rasure, interlineation, coverture, or lunacy at the time of execution, may be given in evidence under the general issue of "non est factum." The instrument under such circumstances is considered as if it had never existed, and, in that view, "is not the deed of the defendant." But infancy must be pleaded specially, and cannot be given in evidence under the issue of "non est factum." The infant's deed, which will bind others, at least, cannot be considered already void, or no deed at all, but must be avoided only by showing the circumstances under which it was created. This reasoning is more matter of form than of substance, and yet it has its bearing upon the question involved. (Bing. on Inf. 16-17.)

*

§ 12. The third ground of Mr. Bingham to sustain his position, is predicated upon a review of the cases decided. In regard to these, it is frankly confessed that very little can be gathered from their expressions toward the solution of the question, except in those cases where the rights of third persons coming into con sideration, the very point of discussion was, not the mere discharge of the infant, but whether his deed was void or voidable; and it is averred that in the greater part of them, the protection of the infant being the only point in question, both the court and the bar, so long as that object was attained, seem to have used at random the terms void and voidable, without any regard to precision. The author only refers to one authority (Cro. Eliz. 920), where the question is stated to have been whether the deed was good or voidable, and the court held it void, which word the reporter evidently uses in the same sense as the word voidable preceding. (Bing. on Inf. 18.)

The conflicting language of some of the cases upon this point may be reconciled, by the confounding of the words "void" and "voidable," as they have been vaguely used in many of the decisions. The language of the court in one case was: the bond is

* Lord Coke says, "One of the best arguments or proofs in law, is drawn from the rights, entries or course of pleading." (Co. Litt. 115, b.) This would help to sustain Mr. Bingham in his position, provided the rule was as he stated, that "infancy must be pleaded specially," but all treatises of pleading, both English and American, admit that infancy may be proved under the general issne of non-assumpsit, which would be contrary to all analogy, if the contract were merely voidable at the election of the party. (Derby v. Boucher, 1 Salk. R. 279.) The practice in this country at present, however, requires infancy to be pleaded, at least in most of the states.

voidable only, at the election of the infant" (Conroe v. Birdsall, 1 Johns. Cas. 127), and yet the marginal note indicates that the court held the bond "void at law," and Senator Tracy, in the court of errors of the State of New York, referring to the case, says: "It was held that a bond executed by an infant is void, though he fraudulently alleged, at the time of making it, that he was of full age." (Mason v. Duncan, 15 Wend. R. 71.) Chancellor Kent seems to have fallen into the same error in extracting the law of this case. (2 Kent's Com. 241.) So in the supreme court of Pennsylvania, Justice Duncan, speaking of the infant's contract as a surety, calls it "absolutely void," but in the next line speaks of "confirming," and "distinct acts of confirmation," indicating very clearly that, in his opinion, the contract was susceptible of a ratification, and, of course, was only voidable, and not "absolutely void." (Curtin v. Patten, 11 Serg. & Rawle R. 311.)

In a similar manner, in one of the English common law courts, Bayley, J., calls the contract of an infant under consideration a void one, but the case shows that if there had been a ratification before the action was commenced, as there was after, the infant would have been bound, which could not have been the case had the contract been void. (Thornton v. Illingworth, 9 Eng. C. L. R. 256.)

In another case, Sir James Mansfield uses the word void in the same indefinite manner, calling the contract void in one part of his opinion, and in another saying: "the contract is not void until he avoids it." (Gibbs v. Merrill, 3 Taun. R. 307.) And in another case, the court recognizes this indefinite use of the word, for they say in effect, that an infant's contracts are void, if by void is meant incapable of being enforced against them; but if by void is meant incapable of being satisfied, then they are not void. (Williams v. Moore, 11 Mees. & Wels. R. 256.) These instances are sufficient to illustrate the vague use of the word void, and may seem to reconcile some apparently conflicting cases upon the subject.

§ 13. The acts of an infant which have been declared by judicial authority to be absolutely void are very few, and many of the decisions on the subject have been overruled or modified by subsequent adjudications.

It has been decided that a warrant of attorney, given by an infant, is absolutely void, and not voidable merely, and the court declared that they could not make it good, though there appeared circumstances of fraud on the part of the infant. (Saunderson v.