Sec 37

There is no reason, on principle, why, if an infant's promise to pay by word of mouth is voidable, it should become void when put in the shape of negotiable paper. And the present tendency is to hold that an infant's bill or note, when made for a purpose promotive of his business interest, is voidable only.1 The same rule applies to endorsements on negotiable paper2; and to non-negotiable paper.3 In any view, parties liable on negotiable paper cannot defend on the ground that an intermediate endorser was an infant.4

Sec 38

The fact that an instrument executed by an infant is under seal does not make it void. In cases in which an infant can bind himself, his liability is not defeated by the fact that the instrument by which he expresses it is sealed.5 The distinction, in fact, between sealed and unsealed contracts is, as we will hereafter see,6 purely artificial, and not deserving, so far as concerns capacity to execute contracts, any further respect.

Negotiable paper voidable.

And so of sealed instruments.

1 Hunt v. Massey, 5 B. & Ad. 902 ; Boody v. McKenney, 23 Me. 523 ; Wright v. Steele, 2 N. H. 51 ; Conn v. Coburn, 7 N. H. 368; Earle v. Reed, 10 Met. 389; Goodsell v. Myers, 3 Wend. 479 ; Everson v. Carpenter, 17 Wend. 419 ; Hesser v. Steiner, 5 W. & S. 476 ; Cheshire v. Barrett, 4 McCord, 241; Bobo v. Hansell, 2 Bailey, 114; Strain v. Wright, 7 Ga. 568 ; Fant v. Cathcart, 8 Ala. 725 ; Buzzell v. Bennett, 2 Cal. 101. To same effect, see Byles on Bills, 10th ed. 59 ; Pollock on Cont. Am. ed. 40 ; Young v. Bell, 1 Cr. C. C. 342. And as to notes given for necessaries, see infra, sec 66.

2 Hardy v. Waters, 38 Me. 450; Nightingale v. Withington, 15 Mass. 272; Frazier v. Massey, 14 Ind. 382; Briggs v. McCabe, 27 Ind. 327.

3 Story on Notes, sec 78; see infra, sec 66.

4 Jones v. Darch, 4 Price, 300 ; Dulty v. Brownfield, 1 Barr, 497. Supra, sec 32, 33, 35.

5 Irvine v. Irvine, 9 Wal. 617; Kendall v. Lawrence, 22 Pick. 540; Spencer v. Carr, 45 N. Y. 406 ; Mustard v. Wohlford, 15 Grat. 329; Chapman v. Chapman, 13 Ind. 396 ;. infra, sec 45 et seq.; Skinner v. Maxwell, 66 N. C. 45 ; Parsons v. Hill, 8 Mo. 135 ; Weaver v. Jones, 24 Ala. 420; Harrod v. Myers, 21 Ark. 592. In Baylis v. Dineley, 3 M. & S. 477, as is stated by Mr. Pollock (3d ed. 53), "Nothing more is decided than that it (a bond) being under seal, it cannot be ratified save by an act of at least equal solemnity with the original instrument." See Swafford v. Ferguson, 3 Lea (Teun.) 292.

6 Infra, sec 671 et seq.

Sec 30

It used to be said that an infant cannot execute a power of attorney under seal.1 Where, however, the execution of such a power is important for the preservation of an infant's estates, and is not designed to establish a permanent continuous agency, there is no reason why it should be placed in this category ; and a fortiori must we hold that an infant's appointment of an agent, for a special purpose, when a matter of convenience in the management of the infant's affairs, is voidable, not void.2 On the other hand, an appointment of a permanent general agent is void, since it would destroy in toto the protection of minority established by the policy of the law.3