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James Schouler.

A treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant online

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infant's indorser or surety a remedy against him ; * and the
broad doctrine conforms to equitable procedure in other
analogous cases.^

1 Reeve, Dom. Rel. 229, 230 ; 2 Dane, necessaries ; since the indebtedness for
Abr. 364, 365 ; Met. Contr. 75. necessaries for whicli he is liable must

2 Stone I'. Dennis, 13 Pick. 6, 7, per be created directly therefor. But, in
Shaw, C. J. ; Earle v. Reed, 10 Met. 387. equity, the infant is liable for the money

^ Guthrie v. Morris, 22 Ark. 411. so obtained, where the creditor can

* M'Crillis v. How, 3 N. H. 348; show that it was actually expended for

Conn V. Coburn, 7 N. H. 368 ; Dubose necessaries. Price v. Sanders, 60 Ind.

V. Wlieddon, 4 M'Cord, 221 ; Haine v. 310. But a surety on an infant's note,

Tarrant, 2 Hill (S. C). 400; McMinn given for necessaries, who lias been

V. Richmonds, 6 Yerg. 9. See, contra, compelled to pay it, cannot sue the in-

Swasey r. Vanderheyden, 10 Johns. 33. fant during his infancy for reimburse-

A late Indiana case tends in the same ment. Ayers v. Burns, 87 Ind. 245.

direction. Here it is said an infant is ^ We have seen a similar rule ap-

not liable at law on liis note or other phed of inquiry into consideration in

contract wliereby lie obtains money to the case of a married woman's contract

build a barn or work his farm, although under equity and modern statutes.

the money be actually expended for 5/</))a, Part II. c. 11. An account for

632



CHAP. III.] ACTS BINDING UPON THE INFANT.



414 a



We may here add that infancy of the maker of a note does
not excuse the want of a demand on him by the holder in
order to charge the indorsee. ^

§ 414 a. Liability for Necessaries, apart from Strict Contract.

— While stress was formerly laid upon the infant's contract
for his necessaries, infants appear liable in various modern
instances on the gTound rather of an implied liability based
upon the necessity of the situation, and because the infant de-
rives a substantial benefit at another's cost. Thus, where the
infant seeks to recover what his services are reasonably worth,
the adult is permitted to set off the reasonable value of what
the infant may have received from him in support or other-
wise.^ And it is held that one may recover for necessaries



necessaries was allowed in equity, with
a lien on the infant's reversionary in-
terest, in a recent English case, although
the minor's deed of sale of his rever-
sionary interest, given during minority,
as security, was declared not binding
upon him. Martin v. Gale, 4 Ch. I).
628. A similar rule is observed in
charging a married wonum's separate
estate. In a late Vermont case this
later rule received a striking illustra-
tion. An infant boarded in a country
town for some twenty weeks at a rea-
sonable price. The person to whom
he was indebted owed his own adult
son money, and for the convenience
of the parties drew an order upon the
infant, authorizing him to pay the
amount of the board to his son ; which
order was duly received, and the in-
fant agreed to pay it. Soon after, by
consent of the parties, this order was
surrendered, and the infant substituted
in its place his promissory note. The
note was negotiable, but never was ne-
gotiated ; and the holder, the adult son
of the person furnishing board, brought
a suit thereon. Tiie evidence showed
that the defendant's board constituted
the sole consideration of the note. It
was held tliat the consideration of the
note was open to inquirj', and that,
upon the facts found, the defendant
was liable to the plaintiff for the full



amount of the note ; and, as the court
also decided, with interest. Bradley v.
Pratt, 23 Vt. 378. Says the learned
judge who gave the opinion in this
case, after a full examination of the
conflicting authorities as to the infant's
liability on his promissory note for
necessaries : " We may then, we think,
regard the question as still in dnbio,
and justifying the court in treating it
as still an open question. And being
so, we should desire to put it upon safe
and consistent ground. We are led,
then, to inquire what is the true prin-
ciple lying at the foundation of all
these inquiries. We think it is, that
the infant should be enabled to pledge
his credit for necessaries to any extent
consistent with his perfect safety. AH
the cases and all the elementary wri-
ters expressly hold that it is for the
benefit of the infant that he should be
able to contract for necessaries; and
we see no reason why he may not be
allowed to contract in the ordinary
modes of contracting, so far as his per-
fect safety is maintained always." See
Thing V. Libbev, 16 Me. 55 ; Ray v.
Tubbs, 50 Vt. 688.

1 Wyman i: Adams, 12 Gush. 210.

2 Hall V. Butterfield, 59 N. H. 3.'3-4,
3.58. But there is no set-off of what
the minor was not bound to pay for.
92 Ind. 103 ; § 236.

633



§ 416 THE DOMESTIC RELATIONS. [PART V.

furnished to a minor, taken from an almshouse, and supported
on the credit of property which was to become his on his
father's death. ^

§ 415. Binding Contracts as to Marriage Relation ; Promise
to marry not binding. — There are other contracts besides
necessaries which are excepted from the general rule, and
are made obligatory upon the infant; being neither void nor
voidable.

Thus contracts of marriage are binding, if executed ; they
cannot be avoided on the ground of infancy, as we have shown
in another connection ; ^ while on the other hand no such con-
siderations of policy attach to an infant's promise to marry,
and such promise is not binding.^ So, too, the general rights
and liabilities of a husband as to custody, maintenance, and
the like, which are incidental to the marriage relation, apply,
from reasons of policy, to infants as to adults.^ So is a con-
tract for the burial of a spouse held beneficial and binding
upon an infant.^

§ 416. Acts -which do not touch Infant's Interest ; Where
Trustee, Officer, &c. — The acts of an infant that do not touch
his interest, but which take effect from an authority which he
is by law trusted to exercise, are binding ; as if an infant ex-
ecutor receives and acquits debts to the testator, or an infant
officer of a corporation joins in corporate acts, or any other
infant does the duties of an office which he may legally hold.^
And his conveyance of land which he held in trust for another,
in accordance with the trust, is not to be disaffirmed by him on
the ground of infancy ; a principle which may extend some-
times to conveyances from a parent made to defraud creditors.'^
This seems to arise from the consideration which the law pays

1 Trainer v. Trumbull, 141 Mass. 250 ; Schouler, Has. & Wife, §§ 412,
527. 413.

2 See Husband and Wife, ch. 1 ; ^ Met. Contr. 66. See Butler v.
Bonney v. Reardin, 6 Bush, 34. Breck, 7 Met. 164; Roach v. Quick, 9

3 Schouler, Hus. & Wife. §§ 24, 42; Wend. 238. As to devastavit by an in-
Rush V. Wick, 31 Ohio St. 521. fant administrator, see Saumni v. Cof-

4 Bac. Abr. Infancy and Age (B) ; felt, 79 Va. 510.

3 Burr. 1802 ; Met. Contr. G6. ^ Prouty v. Edgar, 6 Clarke (Iowa),

5 Chappie V. Cooper, 13 M. & W. 353; Starr v Wright, 20 Ohio St 97;

Elliott V. Horn, 10 Ala. 348.

634



CHAP. III.] ACTS BINDING UPON THE INFANT. § 419

to the rights of others besides the infant ; or, to put it differ-
ently, the doctrine may rest upon this fact, that the infant in
such cases does not act as an infant. So the acts of the kina
cannot be avoided on the ground of infancy ; partly for the
same reasons, partly as one of the attributes of his sover-
eignty.^ This attribute of sovereignty may perhaps enter as
an element into the public acts of infants in this country who
are improperly chosen to civil offices, yet whose official acts
should be sustained.

§ 417. Infant Members of Corporations. — It is held that
infants and married women, owning proprietary rights in
townships, are not by reason of legal incapacity prevented
from being bound by the acts of proprietors at legal meetings.'-^
And the same is doubtless true of infant shareholders in cor-
porations generally. Their incapacity would, otherwise, block
the wheels of business altogether in matters where it is really
property, and not persons, that are usually represented.^

§ 418. Acts •which the Lavr would have compelled. — It is
an old and well-settled doctrine that an infant will be bound
by any act which the law would have compelled him to per-
form ; as if the infant make equal partition of lands, or assign
dower, or release an estate mortgaged on satisfaction of the
debt.'^ But it is held that this rule does not apply to the case
of a voluntary distribution ; for the law, though it would have
coerced a distribution, might not have made just such a one as
was made by the parties.^

§ 419. Contracts binding because of Statute; Enlistment; In-
denture. — Enlistments are binding contracts under appropri-
ate public statutes.^ Whenever a statute authorizes a contract
which from its nature or objects is manifestly intended to be
performed by infants, such a contract must, in point of law,

1 Met. Contr. 66. Penn. 115 ; Prouty v. Edgar, 6 Clarke

2 Townsend v. Downer, 32 Vt. 18.3. (Iowa), 353.

8 As to the binding force of a decree ^ Kilcrease i\ Shelby, 23 Miss. 161.

in equity upon the infant's property, ^ King v. Rotherfield Greys, 1 B. &

see post, c. 6. C. 345; Commonwealth v. Gamble, 11

* Co. Litt. .38 a, 172 a ; 3 Burr. 1801 ; S. & K. !)3 ; United States v. Bainbridge,

Met. Contr. 67 ; Jones v. Brewer, 1 1 Mason, 83, before Story, J.
Pick. 314; Bavington v. Clarke, 2

635



§ 420 THE DOMESTIC RELATIONS. [PART V.

be deemed for their benefit and for the public benefit ; so that
when hoiia fide made it is neither void nor voidable, but is
strictly obligatory upon them. Yet if there be fraud, circum-
vention, or undue advantage taken of the infant's age or situ-
ation by the public agents, the contract could not, in reason or
justice, be enforced.^ And contracts of enlistment are not by
our statutes usually made binding upon any infants under a
prescribed age, without, at all events, the consent of parent or
guard ian.2

On like principles, a minor may be bound by his indentures
of apprenticeship, executed in strict conformity to statute ;
these being likewise deemed for his benefit. By the custom
of London, and under the laws of some States, the covenants
of the minor apprentice are obligatory upon him. But it is
otherwise by the common law of England, and also under the
statutes of Elizabeth, and in New York, Massachusetts, and
other States. Still, although the infant may not be liable for
breach of his covenants, he cannot dissolve the indenture.^
The English doctrine is that indentures are so far binding, that
the master may enforce his rights under them ; and the legal
incidents of service as apprentice attach to this relation ; unless
the master by his own misconduct deprives the infant of the
benefits of the contract, in which case the law will release the
latter from his bargain.* A provision not for the benefit of
the infant under such an indenture may render such an in-
strument inoperative.^

§ 420. Infant's Recognizance for Appearance on Criminal
Charge. ^ — ^ Partly out of respect to statute requirements, and
partly, no doubt, because it is beneficial to one charged with

1 United Slates v. Bainbridgje, supra. Inhabitants of Wigston, 3 B. & C. 484;
1 Mason, 83. And see Franklin v. Clark ?'. Goddard, 39 Ala. 164 , infra,
Mooney, 2 Tex. 452. Part VI. c. 1.

2 Matter of Tarble, 25 Wis. 390 ; In * 5 Dowl. & Ry. 339; 6 T. R. 558;
re McDonald, 1 Low. 100; Seavey v. Cro. Jan. 494; Cro. Car. 179; Met.
Seymour, 3 Cliff. 4.39. Contr. 0(5; Rex v. Mountsorrel, 3 M. &

3 Met. Contr. G6. But in some States S. 497.

he can. See Woodruff v. Locjan, 1 ^ Such, e. g., as a provision for not

Eng. 276; Stokes ii. Hatcher, 1 South, paying wages regularly. Meakin v.

84 ; M'Dowles's Case, 8 Johns. 331 ; Morris, 12 Q. B. D. 352.
Blunt V. Melcher, 2 Mass. 228; Rex v.

636



CHAP. III.] ACTS BINDING UPON THE INFANT. § 421

crime to be allowed to enter into recognizance for his personal
appearance in court, instead of suffering close confinement
meantime, it is held that a minor defendant in criminal pro-
ceedings may bind himself personally by such recognizance,
entered into after the usual form by himself and his sureties.^

§ 421. Whether Infant's Contract for Service binds him. —
Apart from statutes prescribing differently, the executory con-
tract of a minor, made without the consent of his parent or
guardian, for employment for a certain or uncertain time, by
means of which he may obtain necessaries or a livelihood, may
be treated perhaps as void if positively disadvantageous in
terms ; ^ it is not by the better authorities to be considered as
absolutely binding upon him, however fair and advantageous
its provisions, to the extent of compelling him to fulfil stipula-
tions like an adult ; but so far as he himself is concerned it is
ifsually voidable.^ If the contract were made by parent or
guardian, the employer's relation as to such a party would of
course be different.

In this country the cases are very common where a minor
is said to be emancipated and entitled to contract for and
receive his own wages. But the significance of the word
"emancipation" is not exact; and, certainly, the legal obliga-
tion of the infant's contract for work is by no means com-
mensurate with his right to the fruits of his own toil.* His
legal capacity to do acts necessarily binding does not seem to
be enlarged by the circumstance that his father has given him
his time,^ or that he serves out with neither parent nor guar-
dian to assume liabilities to others for him. But the right of
an infant nearly of age and an orphan who has no guardian, to
recover the wages due him under a contract for his services,
should be favorably regarded.^

1 State V. Wcatherwax, 12 Kan. * As to the more general effect of a
463 ; 404 n. and citations. child's emancipation, see supra, Part

2 Regina v. Lord, 12 Q. B. 755; su- III. c. 5.

pra, § 403, and comments in note. ^ Post, c. 5.

8 See Person ;•. Chase, 37 Vt. 647, ^ Waugh v. Emerson, 79 Ala. 295.
and other cases referred to in c. 5, post.

637



423 THE DOMESTIC RELATIONS. [PART V.



CHAPTER IV.

THE INJURIES AND FRAUDS OF INFANTS.

§ 422. Division of this Chapter. — In this chapter we shall
treat, Jirst, of injuries and frauds committed by an infant; second,
of injuries and frauds suffered by an infant.

§ 423. Injuries committed by Infant ; Infant civilly Responsi-
ble. — First, as to injuries and frauds committed by an infant.
It is a general principle that infancy shall not be permitted t^
protect wrongful acts. To use the forcible expression of Lord
Mansfield, the privilege of infancy is given as a shield and not
a sword.^ And minors are liable, not only for their criminal
acts, but for their torts ; and must respond in damages in all
cases arising ex delicto to the extent of their pecuniai-y means,
irrespective of the form of action which the law prescribes for
redress of the wrong.^

An infant is then as fully liable as an adult in an action
for damages occasioned by injury to the person or property of
another by his wrongful act.^ True, it has been observed, that
where infants are the actors, that might probably be considered
an unavoidable accident, which would not be so where the
actors are adults.^ But, says a writer, where the minor com-
mits a tort with force, he is liable at any age ; for in case of
civil injuries with force, the intention is not regarded.^

1 Zouch V. Parsons, -S Burr. 1802. 4 Bullock v. Babcock, 3 Wend. 391.

2 Met. Contr. 49; 1 Addis. Torts, ^ Reeve, Doni. Bel. 258. See Neal
731 ; 8 T. R. .335 ; 2 Kent, Com. 240, v. Gillett, 23 Conn. 437.

241 ; School District v. Brafrdon, 3 An infant is not liable to arrest on

Fost. 507 ; Bullock v. Babcock, 3 Wend, civil process. If, however, the writ

391 ; Oliver v. McClellan, 21 Ala. was valid, on its face, the infant has

675. no right of action against one aiding

3 Conklin v. Thompson, 29 Barb, the officer in making the arrest. Cas-
218. sier Re, 139 Mass. 458, 4G1.

638



CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 423

It follows from what we have said, that for an injury
occasioned by an infant's negligence, he may be held civilly
answerable. As where, in sport, he discharges an arrow in a
school-room where there are a number of boys assembled, and
thereby disables another ; ^ or aims a missile at an older boy
and accidentally hits another and younger one.''^ And even
though under seven years of age, a child has been held liable
in trespass for breaking down the shrubbery and flowers of a
neighbor's garden.^ But not for turning horses which were
trespassing on his father's land into the highway, for this does
not constitute a tort.* All the cases agree that trespass lies
against an infant. And minors are chargeable in trespass for
having procured others to commit assault and battery.^

But, supposing the tort to have been committed by the ex-
press command of the father ; is the infant then liable ? So it
was thought in a Vermont case, where the decision nevertheless
rested on a different ground.^ " An infant, acting under the
command of his fathqr, as a wife in the presence of her hus-
band, might be excused from a prosecution for crime, if it
should appear that the intent was wanting, or that he was
acting under constraint ; yet he is answerable civilitcr for in-
juries he does to another. " " And more recently this question
is plainly decided in Maine, in the affirmative.^ And in North
Carolina, too, it is held that the infant cannot defend by alleg-
ing that the tort was committed by the direction of one having
authority over him.^ On the other hand, it would appear that
an infant cannot be held responsible for torts committed by
persons assuming to act under his implied authority ; in other
words, that his liability is not to be extended in any case
beyond acts committed by himself or under his immediate and
express direction.^''

1 Bullock V. Babcock, 3 Wend. 301. 7 Per Williams, C. J., ih.

2 Peterson v. Haffner, 59 Ind. 130 ; « Scott v. Watson, 46 Me. 362. i
Conway v. Reed, 68 Mo. 346. » Smith v. Kron, 96 N. C. 392. Here

3 Hucliting v. Engel, 17 Wis. 231. the offence was trespass upon another's
* Humphrey v. Douglass, 10 Vt. 71. premises.

5 Sikes V. Johnson, 16 Mass. .380; i^ Kobbins v. Mount, 4 Rob. (N. Y.)
Tifft V. Tifft, 4 Denio, 177; Scott v. r■>:^'?, \ Burnham y. Seaverns, 101 Mass.
Watson, 46 Me. .362. 360.

6 Humphrey f. Douglass, 10 Vt. 71, ^

639



§ 424 THE DOMESTIC RELATIONS. [PAET V.

An infant in the actual occupation of land is responsible for
nuisances and injuries to his neighbor, arising from the negli-
gent use and management of the property.^ Or for wrongful de-
tention of premises.^ And ejectment may be maintained against
an infant for disseisin, that being a tort.

§ 424. Immunity for Violation of Contract distinguished. —
The cases on the subject of an infant's torts do not seem quite
consistent, so far as decisions upon the facts are concerned ; but
the principle which runs through them all serves to harmonize
the apparent contradictions. This is the principle : that the
courts will hold an infant liable for what are substantially his
torts, but iiot for mere violations of a contract, though attended
with tortious results, and though the party ordinarily has the
right to declare in tort or contract at his election. It must be
remembered that, for his contracts, the infant is not ordinarily
liable : for his torts he is. And this distinction is at the root
, of the legal difficulty. The plaintiff cannot convert anything
/ that arises out of a contract into a tort, and then seek to enforce
/ the contract through an action of tort. Therefore was it held
that where a boy hired a horse and injured it by immoderate
driving, this was only a breach of contract for which he was
not liable.^ Nor was he liable for breaking a borrowed car-
riage.^ And where in an exchange of horses the infant had
falsely and fraudulently warranted his mare to be sound, he
was protected from the consequences on the same principle.^

The English cases, decided many years ago, exhibit a strong
disposition to apply this rule in favor of an infant's exemption.
And the language of the court in Manhy v. Scott, with reference
to the delivery of goods to an infant, and suit afterwards for
trover and conversion, was that the latter shall not be charge-
able : " for by that means all infants in England would be
ruined." ^ Says a judge, deciding a case on the same general
principle, " the judgment will stay forever, else the whole foun-

1 1 Arlflis. Torts, 731; McCoon v. ^ Green r. Greenbank, 2 Marsh. 485;
Smith, 3 Hill, 147. Howlett v. Haswell, 4 Campb. 118;

2 McClure v. McClure, 74 Ind. Morrill v. Aden, 19 Vt. 505.

108. 6 1 Sid. 129, quoted with approba-

2 Jennings v. Kundall, 8 T. R. 835. tion in Jennings v. Rundall, supra,
* Schenck v. Strong, 1 South, 87.

640



CHAP. IV.] THE INJURIES AND FRAUDS OF INFANTS. § 424

dation of the common law will be shaken." ^ But a more
equitable principle pervades the later cases. Thus in an Eng-
lish case, where one twenty years old hired a horse for a ride,
and was told plainly that it was not let for jumping, and not-
withstanding caused the horse to jump a fence and killed the
animal, he was held liable for the wrong.^ And in Vermont an
infant was held answerable, not many years ago, where he hired
a horse to go to a certain place and return the same day, then
doubled the distance by a circuitous route, stopped at a house
on the way, left the horse all night without food or shelter,
and by such over-driving and exposure caused the death of
the horse.^ This is the Massachusetts doctrine likewise,* and
that of other States/^ The New Hampshire rule is that the
infant bailee of a horse is liable for positive tortious acts wil-
fully committed, whereby the horse is injured or killed ; though
not for mere breach of contract, as a failure to drive skilfully.^
The distinction to be relied upon is, that when property is
bailed to an infant, his infancy protects him so long as he
keeps within the terms of the bailment ; but when he goes
beyond it, there is a conversion of the property, and he is liable
just as much as though the original taking was tortious."

Chief Justice Marshall pronounces infancy to be no complete
bar to an action of trover, although the goods converted be in
the infant's possession in virtue of a previous contract. " The
conversion is still in its nature a tort ; it is not an act of omis-
sion but of commission, and is within that class of offences for
which infancy cannot afford protection." ^ This doctrine is ap-
proved in New York,^ and in Maine.^^ So, in England, deti-
nue will lie against an infant, where goods were delivered for a
special purpose not accomplished.^^ And the general rule seems
to be now well established that an infant is liable for goods

1 Johnson i\ Pye, 1 Keb. 905. See ^ Towne v. Wiley, supra, per Red-

n. to Howlett in Haswell, supra. field, J. The rule is otlierwise in Penn-

'^ Barnard u. Haggis, 14 C. B. n. s. svlvania. Penrose i;. Curren, 3Rawle,

45. 351.

3 Towne v. Wiley, 23 Vt. 355. And » Vasse v. Smith, 6 Cranch, 226.

see Ray v. Tubbs, 50 Vt. 688. ^ Campbell v. Stakes, 2 Wend.

* Homer v. Thwing, 3 Pick. 492. 137.

6 Freeman v. Roland, 14 R. 1.39. ^ Lewis t>. Littlefield, 15 Me. 2.3-3.

6 Eaton V. Hill, 50 N. H. 235. " Mills v. Graham, 4 B. & P. 140.

41 641



§ 424 THE DOMESTIC RELATIONS. [PART V.

entrusted to his care, and unlawfully converted by him ; though
as to what would constitute such conversion, the authorities
are not agreed.^ Thus it is held that while a ship-owner can-
not sue his infant supercargo for breach of instructions he may
bring trover for the goods.^ And an infant, prevailing on the
plea of infancy in an action on a promissory note given by him
for a chattel which he had obtained by fraud and refused to
deliver on demand, has still been rendered liable to an action of
tort for the conversion of the chattel ; the original tort not
having been superseded by a completed contract.^ Eeplevin
would lie for the goods even where a suit for damages might
fail.^ For stolen money and stolen goods converted into money,
an infant is held liable in assumpsit.^ Yet his conversion of



Online LibraryJames SchoulerA treatise on the law of the domestic relations; embracing husband and wife, parent and child, guardian and ward, infancy, and master and servant → online text (page 76 of 90)