for the contract of the infants was merely void. There was here, therefore, no operation from the delivery; but perhaps the reference is to the assertion of Egerton, counsel, who said it was adjudged between Edmunds and Burton that where an infant was bound in obligation, and at his full age he promised payment, an action was maintainable against his executor upon this promise, for that the bond which was the ground of it was not void but voidable, and he could not plead non est factum or nil debet to a bond. But we shall the better be able to understand what was really assented to by the court upon the subject by examining the same case in Leo. 114, according to which it was said by Wray, Justice, that if the infant had been bound in an obligation with a surety, and afterwards, at his full age, he, in consideration thereof, promiseth to keep his surety harmless, upon that promise an action lieth, for the infant cannot plead non est factum, which see in the case of one Edmunds.' So that the promise upon which the action lay was made by the infant at his full age and the whole only goes to shew that he could not plead non est factum, and that it was in that sense that it was considered voidable, and not because it had an operation from the delivery.

With respect to Moore, pl. 132, it is not at all to the purpose; most probably an error in the reference was made by some original writer, and has been copied by others, for I find it handed down through many books. Therefore there is nothing in the cases referred to which goes to shew that the reason why non est factum cannot be pleaded is that the deed hath an operation from the delivery; and much less sufficient to invalidate the solemn resolution of Holt and the other judges in Thompson v. Leach, who there held that it hath no operation.

The writer also observes, that "it was determined in Drury v. Drury, that if a provision be settled upon an infant feme previous to marriage in bar of dower, she will be conclusively bound by it under the statute of jointures; Lords Hardwicke and Mansfield, observing that a jointure was not a contract by the wife, but a provision made by the husband, &c. as defined by Lord Coke, which obviated the consequences drawn from an infant's incapacity to contract." Now, sir, one remark with respect to that observation of Lords Hardwicke and Mansfield. It is true that a jointure is a provision by the husband, but then

this provision is in lieu, bar, and satisfaction of the feme's dower. Dower is a freehold which a woman will be entitled to out of the lands of her husband after his death, unless she be barred by a jointure; and yet it is said the bartering her right or title to dower for a collateral satisfaction, is not a contract.

From what the writer says upon the subject, he seems to think that the reason given by Lords Hardwicke and Mansfield was the ground of the decision in Drury and Drury; but the fact is otherwise: the case was determined upon a different ground, as every reader cannot fail to perceive upon an attentive perusal of it. That ground was, to use the words of Lord Chancellor Thurlow, in the case of Durnford against Lane, Bro. Cha. Cas. 108. "There" (in Drury v. Drury) "it was taken up thus, marriage may be between minors-that dower attaches upon marriage, the act having said nothing as to the majority of the wife; the act spoke of her when she could make the contract."

At the end of the last Number of The Journal, I perceive that the reader is cautioned particularly to notice, that the writer of the succinct view does not assent exactly to the positions, with respect to the case of Zouch and Parsons, of the gentleman who wrote under the signature of an Old Correspondent; but it is certain that the caution had better have been withheld, for the view which the old correspondent has taken of that case is certainly the correct one, the ground of the decision in Zouch and Parsons being this:-"The act which the infant hath here done he was compellable to do under the statute of 7 Anne; then it is a rule of law that what an infant is compellable to do, shall, if done by him voluntarily, be binding : the infant therefore is, in this case, bound. This was the first question in the case, and the sole reason upon which the court held the infant bound: they did indeed afterwards go on to consider, supposing the infant not to be bound, whether his act was void or voidable only; but the judgment that he was bound, went upon the ground, that he might have been compelled to do the act which he had done. I cannot, however, accede to the broad observation of your Old Correspondent that" by the decision in Zouch and Parsons, the trouble, inconvenience, delay, and expense of an application to a court of equity are rendered unnecessary." Where it is clear the court of Chancery would upon application, compel the infant to convey, there

(according to the case of Zouch and Parsons) his conveyance would be good without any application: but then, before any one could in practice advise such an application to be dispensed with, he must be in possession of all eircumstances as to the precise situation of the parties, and the substantial equity of the whole transaction-circumstances which a court of equity can always come at, but which may be kept back from the view of counsel. I confess that I should be very slow in taking the whole responsibility upon my own shoulders merely for the sake of saving the parties the trouble and expense of pursuing those modes which the legislature itself has thought fit should be adopted. Great deference and respect is due to the opinion of so great a character as the late Earl of Mansfield, but it doth seem to me that much might have been said against the infant's being bound in that case; for as infant trustees could not bind themselves at comnon law, and as the act of parliament which meant to remedy the inconvenience, expressly directs that a particular mode, viz. an application to the court of Chancery, should be pursued, I should have questioned whether the common law principle, that what an infant is compellable to do, shall, if done without pulsion, be binding, would have been let in by that act; and whether the act itself did not amount to an ordinance, that an infant trustee's conveyance should not be binding on him unless the line chalked out by that act be pursued, and so the common law rule is inadmissable in such cases. Your old correspondent cites the case of Caruthers v.Caruthers, 4 Bro.C. C. 500, to prove that an infant wife may be barred of her dower by the acceptance of a jointure. But it was determined that the wife in that case, and under the particular circumstances of it, was not barred. Want of time prevents me from following your correspondents further in this communication; but [ shall probably beg permission to occupy a few pages in a future number in a further discussion of the subject; and indeed, if I thought it would be acceptable, I would have transcribed from iny note book and remit for insertion in the Law Journal an examination of the reasons, relied upon by Lord Mansfield in the case of Zouch and Parsons, for thinking all the deeds of infants as well grants, &c. as feoffments, voidable only, and not void; for, having miutely examined the point, I am convinced there is not a

com

single reason upon which his lordship relied that is not outweighed by greater authority, and that what was generally understood to be the law before the case of Zouch and Parsons, is still law at this day.

Lincoln's Inn, 22d January, 1805.

STUDENS.

On transmitting the Letter of Studens to the Author of the Succinct View, he returned it with the following Answer;

1 have read the paper of Studens with great pleasure. The author is certainly ingenious and has given the question great consideration, but it is rather unfortunate for him that in differing from the Succinct View, in some particulars, he has been under the necessity of encountering the opinions of Lord Mansfield.

The question how far an infant shall be bound is certainly an unsettled question, and until there be a formal decision on the subject, I am inclined to adhere to what is laid down in the Succinct View.

I am glad to find that the opinions I have stated in regard to infancy have caused some investigation among your correspondents.

Yours, &c.

R. R.

I

CRITO on Marriage Articles and other Deeds by

Infants, &c.

MUST request a small portion of your Journal for the insertion of a few observations which have occurred to my mind on perusal of the Succinct View of Infancy, the criticism upon it by M. C. and the reply of R. R. I have examined the Succinct View, and am candid in declaring, that in my judgment, the performance does the author great credit, as well from the correctness of its principles, as from the conciseness and clearness with which they are stated. The only passage that appears to afford ground for argument is that wherein the author states the inference which he drew from all the cases to be, "that

the deeds of infants where there is no appearance or sema blance of benefit, are void, but that those from which they may probably receive advantage, and are entered into with great solemnity, are voidable only, subject to ratification or avoidance when the infants arrive at legal maturity.

It seems to me that this conclusion, drawn from the cases, is far from being incorrect, considered in a general point of view. Besides the instance of the bond in R. R.'s reply to M. C. the case of a settlement may be adduced. Suppose a male infant, with the advice and consent of his guardians settles his real property by deed, in contemplation of marriage, and receipt of a considerable fortune; in the case supposed we have an instrument executed with great solemnity by the infant, with a semblance of benefit to him; then (according to the above proposition of the author of the Succinct View) such an instrument would not be void, but voidable upon his attaining the age of twenty-one, and I believe that the authorities upon the subject will support the proposition.* Again, suppose an infant of the age of twenty years, sold his estate to a great advantage, and on that occasion executed and delivered indentures of lease and release to the purchaser, in the latter of which instruments the consideration was expressed, surely such a deed and transaction would not be void but voidable only by the vendor upon attaining twenty-one. All this seems a natural consequence from the principle upon which the disability is founded (viz.) as a shield to prevent infants from being imposed upon, so that in all instances (with the exception of a few only, where the transactions have the semblance of being fair and for the benefit of the minors engaged in them,) the policy of the law has wisely left such transactions to be avoided or confirmed, when the infants arrive at maturity. With respect to what is said in the Succinct View, Critique and Reply, upon the subject of an infant being bound by a legal or equitable jointure, I think that R. R. might have stated, with advantage, upon that point, the opinion of Lord Mansfield in Drury v. Drury, as collected by Mr. For

* 1 Brown's Cha. Ca. 116. Woodeson, 3 vol. 453, note. Brown's Ch. Ca. 510.

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