and since the lessee cannot, in any instance, avoid the coutract, on account of the lessor's infancy, it is apparent that the lease can be only voidable. It has been determined that an infant may make a lease without reserving rent, to try his title in ejectment. If a copyhold be granted to B. for life, remainder to an infant absolutely, and both join in a surrender to C. who is admitted; if B. die, and then the infant, and the heir of the Jatter enter upon C. his entry will be lawful, even before admittance, the surrender by the infant being a voidable act.† If an infant do a rightful act, which he ought and is compellable to perform, the act will bind him, as if he make equal partition in pais, or unequal by writ, or if he pay rent, or admit copyholders; for, in general, whatever an infant is bound to do by law, the same shall bind him, although he do it without suit of law; because, a right and lawful act is not within the reason of infant-privilege, which is allowed purely for the protection of minors from suffering wrong. Thus, the attornment of an infant to a grant by deed, is good and shall bind him, because it is a lawful act; and although he was not compellable to attorn upon a grant by deed, yet, as he might have been obliged to make attornment if a fine had been levied, his voluntary attornment shall have the same effect.§ The transactions of an infant which do not touch his interest, but take effect from an authority which he is intrusted by law to execute, will bind him; as in the instance of an infant executor (prior to statute 88 Geo. III. c. 87, which extends administrations durante minori ætate of infants to their ages of 21) duly receiving and acquitting, paying and administering the assets and in the instauce of an infant patron presenting and also in cases when the infanthead of a corporation joins in corporate acts, or an infantofficer performs the duty of an office which he may hold.** But a power over real estate, which he is intrusted to execute by an individual, if it affect his interest, cannot be conclusively exercised during the grantee's minority.++ Perkins seems to intimate an opinion that the grant of a free chapel or presentation cannot be made by an infant under the age of 14, but it has been since settled that his guardian shall pre * 3 Bur. 1806. Noy, 180. Co. Lit. 171, a & b. 5 Rep. 27. ** Cro. Car. 557. ++ 1 Ves. 298. 3 Atk. 695, 710. + Cro. Eliz. 90, pl. 17. sent in his ward's name.* Thus, an advowson was conveyed to trustees upon trust to present such person as the grantor, his heirs or assigns should by deed appoint; Lord King confirmed an appointment made by an infant heir, although it appeared that he was not a year old, and that the guardian directed his pen in making a mark and fixing his seal.† A minor, a mere trustee or mortgagee under the statute of Anne, may and is compellable to reconvey the trust or mortgaged estates by order of the court of Chancery, made upon petition of his guardian, or of the person for whom he is seised or possessed in trust, or of the mortgagor, or the person entitled to the money, or the person entitled to the equity of redemption, unto such person as the court shall direct, and he will be bound thereby as an adult. In the construction of this statute, it has been determined, that summary orders, made upon petitions for infant-trustees to convey, must be in the plainest cases, and not in such as are subject to disputes or litigation, as implied or constructive trusts may be; therefore, in instances of the latter sort, the cestui que trust must commence a regular suit by bill for the purpose.§ The infant must be a mere trustee ab origine, and not made such by subsequent acts; therefore, if an infant be a devisee of lands charged with debts and legacies, and the personal estate is insufficient to pay all, although the infant would be trustee for the unsatisfied creditors and legatees, when the amount of their demands was ascertained by a master, yet he will not be considered as a trustee within the meaning of the above act. If an infant heir, trustee, or mortgagee, be a married woman, she will be directed to convey by fine, under the provisions of the statute.¶ The privileges annexed to a state of infancy, being intended as a shield, and not as a sword, will never be permitted to operate as an offensive weapon of fraud or injustice to other persons. It seems, therefore, that if an infant take away wilfully, or under pretence of full age, the goods of another person, trover will lie against him.** B. tenant for life, and C. an infant in remainder, levied & fine; C. afterwards reversed it as to himself for non-age; C. shall not enter upon B. for a forfeiture.++ B. an infant joint-tenant, before her marriage with C. covenanted and agreed, in articles, to settle her estate to various uses. B. afterwards died under age: the articles shall not amount to a severance of the jointure, for the utmost the infant could do, being a voidable act, if it were allowed to sever the joint-tenancy, she would always be at liberty to say whether the jointure should be severed or not; and if any of the other joint-tenants happened to die during her non-age, the infant might avoid her own act, and resort to her title of survivorship, which would be unjust and inconvenient.* So note a difference between law and equity, for a feoffment by one of two infant-joint-tenants, will affect a severance until avoided.† In relation to the question, who shall avoid an infant's conveyance when he dies during non-age, it may be answered, privies in blood and privies in estate: thus, when a minor is seised in fee, and infeoffs; his general heir shall enter: if he be interested as tenant in tail male general, his general and special heir shall defeat his conveyance; the law is the same though the heir be special heir only, and not heir general: thus, if in the case last supposed, tenant in tail had two sons, and the elder had issue a daughter, and the grandfather died, and then the elder brother within age made a feoffment and died without issue male, the younger brother, although not heir general to the infant, but heir male special secundum formam doni, shall avoid the deed of feoffment. But privies in law, as the lord by escheat, &c. shall not take advantage of infancy, so that if the infant donor in fee die without heirs, the deed cannot be impeached. Although it is laid down in Whittingham's case, that the reversioner or remainder-man shall not take advantage of infancy for want of privity; yet, Doderidge, Justice, denied this doctrine in Darcy v. Jackson, and said, that he in remainder, and the donor should take advantage of infancy, as it would be unreasonable that a minor's feoffment should injure another person and take away his entry; therefore, if infant tenant in tail come in as vouchee by attorney, the remainder-man may take advantage of the error, for he is interested; and as his right is liable to be affected by ano *1 Bro. C. C. 113. notis. + 8 Rep. 43, á. Whittingham's case, 8 Rep. 43, a. Palm. 234, 254. Roi. Rep. 401, 442. Br. (Entry congeable) pl. 129. Dy. 10, b. Palm, 254. ther's act, it is but reasonable that he should be admitted to shew its insufficieney.* With respect to the judicial acts of infants, the law pays so much regard to the wisdom and integrity of those persons who preside in courts of justice as to consider all things done there as ritè acta, and therefore, will not permit the infant to avoid a fine or recovery levied or suffered by him during non-age, unless he reverses it by a writ of error in minority, in order that the Judges may decide upon the question of infancy by inspection. But if an infant bring error to reverse a fine for non-age, and infancy be recorded, and before reversal of the fine, he levy another, the first shall not be annulled, because the second, by destroying his right to the land, deprives him of all remedies to recover possession of it. Recognizances and statutes being matters of record, must be avoided by auditâ querelâ during infancy, but in conveyances by bargain and sale, although inrolment in a court of record is made an essential requisite by act of parliament, yet as bargainee claims by the deed, he may avoid it as any other common conveyance.¶ As the disability of infancy is created for the benefit of minors alone, it is settled that their engagements during nonage, for necessaries, shall be binding; Lord Mansfield has elegantly said upon the subject, " miserable must be the condition of minors, excluded from the society and commerce of the world, deprived of necessaries, education, employment, and many advantages,if they could do no binding acts. Great inconvenience must arise to others if they were bound by no act. The law, therefore, at the same time that it protects their imbecility and indiscretion from injury, through their own imprudence, enables them to do binding acts for their own benefit, and without prejudice to themselves for the benefit of others." If an infant enter into an engagement to pay for his meat, drink, necessary apparel, teaching, or instruction, &c. he *Roll. Ab. 755. Bridg. 75. Roll. Rep. 301. Cro. Eliz. 739, pl. 13. Aleyn, 75 + 2 Roll. Ab. 15. Moor, 76. Rep. 123. Felv. 155. Lev. 142. Roll. Ab. 738. pl. 13. 2 Inst. 483. 10 Rep. 43, a. 5. 24. Co. Lit. 380. 2.Inst. 483. 12 Dy. 232. Noy, 16. Felv. 98, ¶ 2 Inst. 673. must abide by his contract, and the consideration of what is suitable and necessary for the infant is the province of a jury to determine, who will be directed to make proper allowances for his rank and situation in life; but if a person advance money to a minor to procure necessaries, whether it has been-so applied or not, the creditor cannot recover his debt at law, as the infant was not to be intrusted with the application of the money. However, equity will interfere in those cases, and moderate the rigour of the common law, by permitting the lender of the money to stand in the place of the person who provided the infant with necessaries to the amount of their value. A bond given by a minor in a penalty to pay for necessaries will not bind him; for, so far as relates to the penalty, the transaction is obviously disadvantageous to him, and as such an obligation is inoperative, it will not be allowed to merge the debt by simple contract; if the bond were single, the consideration would bind him,§ but when an infant cohabits with and is properly maintained by his parents, he cannot bind himself for what might in other cases be adjudged mere necessaries. If an infant marry, he will be liable to answer for his wife's necessaries procured during the marriage,¶ and as persona conjuncta æquiparatur interesse proprio, infancy will be no privilege to exempt him from demands, in consideration of nursing and taking care of his lawful children.** The contracts of infants being voidable, are consequently capable of confirmation when they arrive at maturity; common sense, however, requires that the confirming party must know, at the time of confirmation, that he is sui juris, and at liberty to avoid the contract, otherwise there can be no pretence to say that the person intends to confirm a voidable deed when he acts under a persuasion that the same is obligatory upon him :++ thus if an adult receive rent,‡‡ or interest, or give a farther security in respect of a transaction during infancy, which he conceived to be binding upon him, those acts will not amount to a confirination :§§ contrà, when * Co. Lit. 179. Roll. Ab. 729, Palm. 528. Jo. 182. Carth. 110. + 3 Bro. C. C. 178. Roll. Ab. 729. Cro. Eliz. 920. Moor, 679. Co. Lit. 172. § Lev. 86. 1 Str. 168. ++ Br. "Duress," pl. 11, 20. || 2 Bl. Rep. 1825. **Lord Bacon's Max. Reg. 18. ‡‡ Jo. 157. Noy, 92. § 2 Atk. 34. 3 P. Wms. 293, note. 3 Bro. C. C. 117. |