Sec 36

It has, however, been doubted whether engagements by an infant are not absolutely void when prejudicial to his interests.9 And there may be cases where the policy of the law requires that such contracts should be absolutely void, as when a minor executes a release to a guardian ;10 or attempts to v. Haines, 52 111. 485 ; Van Pelt v. Cor-wine, 6 Ind. 363 ; Lowe v. Sinklear, 27 Mo. 308. See Towle v. Dresser, 73 Me. -.

Avoidance may be during minority.

Infant may hold property and pass title.

Doubts whether prejudicial engagements are void or voidable.

1 North Western R. R. v. McMi-chael, 5 Ex. 114 ; Dunton v. Brown, 31 Mich. 182.

2 Edgerton v. Wolf, 6 Gray, 453.

3 Pollock on Cont. Wald's ed. 42.

4 Stafford v. Roof, 9 Cow. 626; 1 Am. L. C. 317 ; Shipman v. Horton, 17 Conn. 481. Infra, sec 45.

5 Infra, sec 45 ; Knotts v. Stearns, 91 U. S. 638 ; Taylor v. Bank, 97 Mass. 345 ; Roberts' App., 85 Penn. St. 84; Fanning c. Russell, 94111. 386 ; see Jones v. Lock, L. R. 1 Ch. Ap. 25 ; as to parallel case of mental incompetency see infra, sec 107a.

6 Infra, sec 37, supra, sec 32.

7 Gooch's case, L. R. 8 Ch. 266.

8 Hunter v. Westbrook, 2 C. & P. 578; Grangiac v. Arden, 10 Johns. 293 ; Pierson v. Heisey, 19 Iowa, 114; Snow v. Copley, 3 La. An. 610: see Smith v. Spear, N. J. Ct. App. 1881, 14 Cent. L. J. 16, and valuable note by Mr. Stewart.

9 Baylis v. Dineley, 3 M. & S. 477; Keane v. Boycott, 2 H. Bl. 515 ; see Tyler on Inf. 2d ed. sec 10.

10 Fridge v. State, 3 Gill & J. 115. See infra, sec 159.

bind himself to future action by bonds with penalties.1 These transactions, however, are treated as nullities, not because the party entering into them is an infant, but because, in the first case, the law will not allow a guardian or other trustee to use his trust in order to obtain an advantage from his ward, and, in the second case, it will not regard a ratification by a party on arriving at full age as operating to give effect to acts to be performed long after this period. As the law, also, discountenances speculation by a minor on interests likely to come to him by the death of relatives, his release or hypothecation of his interest in a succession will be treated as void.2 And a contract in which an infant's generosity and ignorance have been imposed upon to his detriment, will in like manner be regarded as so far against the policy of the law as not to be susceptible of renewal by a naked promise on his bare arrival at majority.3 But the mere fact that an agreement is prejudicial to an infant does not make it necessarily void. Otherwise the question would depend upon an uncertain test (i. e., probability of detriment), as to which there could be no uniform rule.4 And the better view is, that, with the exception5 that an infant cannot execute a bond with penalties or a power

1 Fisher v. Mowbray, 8 East, 330; Baylis v. Dineley, 3 M. & S. 477.

2 Cronise p. Clark, 4 Md. Ch. 403; Langford v. Frey, 8 Hump. 443.

3 Cronise v. Clark, 4 Md. Ch. 403 ; see Baylis v. Dineley, 3 M. & S. 477; Latt v. Booth, 3 C. & K. 292; Lawson v. Lovejoy, 8 Greenl. 405 ; Langford v. Frey, 8 Hump. 443.

4 Mr. Pollock (Contracts, Am. ed. 1881, p. 35) says : "When the agreement of an infant is such that it cannot be for his benefit, it is said to be absolutely void at common law ; but this distinction is exceedingly doubtful, if not altogether exploded by modern authorities." That "void" is used by judges and text writers, and even in legislation, as convertible with "voidable," see Pollock on Cont. Am. ed. 1881, p. 36, citing State v. Richmond, 6 Fost. 232; Allis v. Billings, 6.

Met. 415 ; Pearsoll v. Chapin, 44 Penn. St. 9. Mr. Benjamin, Sales, 2d Am. ed. 29, comes to the same conclusion, after a careful survey of the cases. To the same effect may be cited the learned authors of 1 Am. Lead. Cas. 300, and Sir W. Anson, Anson on Contracts, 98-9. On the other hand, the old division of void and voidable is adopted in Story on Contracts, sec 101, in Hil-liard on Contracts, ii. 129, and in Robinson v. Weeks, 56 Me. 102. That "void" is used by judges in the sense of voidable is shown in Thornton v. Illingworth, 2 B. & C. 824; Ayres v. Hewitt, 19 Me. 281 ; Conroe v. Birdsall, of attorney to bind him permanently, no contracts of an infant are void merely for the reason of infancy. They may be void, if made so for other reasons-e. g., when, as we have just seen, they are brought about by undue influence-but unless this be the case, they are merely voidable.1 Wherever the engagement, such is the test generally given, is not merely detrimental to the infant's interests, but is so far without a fair mutuality of consideration that fraud is to be inferred, then the courts will declare it to be void, and incapable of resuscitation by ratification.2 On the other hand, it has been broadly said that an infant is bound by all contracts to his advantage.3 But this leaves out of consideration the fact that the law imposing disabilities on infants is designed not merely for the protection of particular infants, but for the establishing of a period of minority during which business responsibility is in abeyance. The welfare of the community, so it may be well argued, requires that up to a particular period of life children should be sheltered from the temptation to incur business risks on their own account. This shelter could not be maintained if infants were held liable on advantageous contracts. So far from an infant in such case being secluded from business, he would have an additional motive to business risks; the motive that while his gains would be his, he would not be responsible for his losses.

1 Johns. Cas. 127 ; Curtin v. Patton,.

11 S. & R. 311, cited by Mr. Parsons, Contracts, i. 329; and see further, supra, sec 28.

5 Infra, sec 39.

1 Hyer v. Hyatt, 3 Cr. C. C. 276; Hardy v. Waters, 38 Me. 450 ; Abell v. Warren, 4 Vt. 149 ; Reed v. Batchelder, 1 Met. 559 ; Kennedy v. Doyle, 10 Allen, 161 ; Mustard v. Wohlford, 15 Grat. 329 ; Harner v. Dipple, 31 Oh. St. 72; Cole v. Pennoyer, 14 111. 158; Fetrow v. Wiseman, 40 Ind. 148 ; Weaver v. Jones, 24 Ala. 420 ; Guthrie v. Morris, 22 Ark. 411; Cummings v. Powell, 8 Tex. 90.

2 In this country, as well as in England, the rule has been sometimes pushed further. In Tucker v. More-land, 10 Pet. 58, Story, J. said: "The instrument, however solemn, is void, if upon its face it be apparent that it is to the prejudice of the infant." This is affirmed in Fetrow v. Wiseman, 40 Ind. 148 (Ewell's Lead. Cas. 21), citing, among other cases, Hunt v. Massey, 5 B. & Ad. 902; Williams v. Moor, 11 M. &W. 256 ; Aldrich v. Grimes, 10 N. H. 194 ; Reed v. Batch-elder, 1 Met. 559 ; Goodsell v. Myers, 3 Wend. 479; Cheshire v. Barrett, 4 McC. 241 ; Little v. Duncan, 9 Rich. 55. The following cases tend in the same direction : Lawson v. Lovejoy, 8 Greenl. 405 ; Robinson v. Weeks, 56 Me. 106 ; Oliver v. Houdlet, 13 Mass. 237; Klein v. Beebe, 6 Conn. 503; Fridge v. State, 3 Gill & J. 115 ; Levering v. Heighe, 2 Md. Ch. 83; 3 Md. Ch. 368 ; Monumental Building Assoc. v. Herman, 33 Md. 132; Langford v. Frey, 8 Humph. 446 ; Wheaton v. East, 5 Yerg. 41 ; Chandler v. McKin-ncy, 6 Mich. 217; Strain v. Wright, 7 Ga. 568. But in all these cases there existed unfairness and imposition in the agreement.

3 Cooper v. Simmons, 7 H. & N. 721, Wilde, B.