5 Zouch v. Parsons, 3 Burr. 1794; Keane v. Boycott, 2 H. Black. 511;
§ 102. But, in the second place, where the contract may be beneficial to the infant, it is only voidable, and may be affirmed or avoided by him when he becomes of age.3 For, inasmuch as the privilege of infants is given by the law only as a protection against the impositions of crafty and designing persons, it does not render those contracts void, which may manifestly enure to the benefit of the infant, and may be intended by the other party as an advantage to him. This class includes the greater part of those contracts which may be entered into by an infant; for it is the policy of the law not to encumber his free action by disabilities, but only to allow him the right to suspend his ultimate decision, upon a doubtful question of benefit, until he shall be of full age and placed on a footing similar to that of the other contracting party. His own power of deciding the question of advantage is not extinguished, except in cases which are necessarily injurious to his interests; but in respect to all questions which may be beneficial, he has the right of ratifying them as soon as he is presumed to be able so to do. The courts lean to construing the acts and contracts of infants to be only voidable, and not void.4 Thus the deed of an infant conveying lands, is voidable only, unless it should appear on its face to be to the prejudice of the infant, upon the ground of the solemnity of the instrument;1 and the same is true of a lease made by an infant, though the rent be not the best attainable.2 But a mortgage made by an infant feme covert to secure a debt of her husband is absolutely void.3 So, also, a promissory note or bill of exchange made by an infant, which was long considered to be void, is now held to be only voidable;4 and an account stated is now held to be only voidable, and may be ratified by him on his arriving at full age, and if he do so ratify it, an action of debt, as well as of assumpsit, may be maintained upon it.5 So, also, a contract of partnership by an infant,6 or a bond made by him,7 are merely voidable, and not void.
Bac. Abr. Infancy and Age, I. 3; Whitney v. Dutch, 14 Mass. 457; Oliver v. Houdlet, 13 Mass. 239; Shep. Touch. 232; Tucker v. Moreland, 10 Pet. 59; The King v. Shinfield, 14 East, 541; U. S. v. Bainbridge, 1 Mason, 82; Fridge v. The State, 3 Gill & Johns. 103.
1 But see Hinely v. Margaritz, 3 Barr, 428; Fetrow v. Wiseman, 40 Ind. 148 (1872).
2 Keane v. Boycott, 2 H. Black. 511; Tucker v. Moreland, 10 Pet. 59; Bingham on Infancy, 11; Baker v. Lovett, 6 Mass. 78; Fisher v. Mowbray, 8 East, 330; Baylis v. Dineley, 3 M. & S. 477; Allen v. Minor, 2 Call, 70; Colcock v. Ferguson, 3 Desaus. 482; Fridge v. The State, 3 Gill & Johns. 115; Vent v. Osgood, 19 Pick. 572.
3 Zouch v. Parsons, 3 Burr. 1808; Keane v. Boycott, 2 H. Black. 511; Maddon v. White, 2 T. R. 161; Boston Bank v. Chamberlin, 15 Mass. 220; Whitney v. Dutch, 14 Mass. 462; Oliver v. Houdlet, 13 Mass. 239; Tucker v. Moreland, 10 Pet. 59; Bruce v. Warwick, 6 Taunt. 118; 2 M. & S. 205; Fisher v. Jewett, Berton, 25; Kendall v. Lawrence, 22 Pick. 544.
4 Cole v. Pennoyer, 14 111. 158; Cummings v. Powell, 8 Texas, 80; Fonda v. Van Horne, 15 Wend. 631, 635; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. 236; 1 Am. Lead. Cas. 103, 104.
§ 103. An exception to this rule obtains, however, in the case of a power of attorney, executed by an infant, which is treated as utterly void,8 although upon what ground it is difficult satisfactorily to determine. The point, however, is settled, and an authority so delegated, even though it enure to the benefit of the infant, is a nullity, and cannot be rendered valid by a subsequent ratification. Yet a power of attorney, authorizing another to receive seisin of land for an infant, or to complete his title to an estate, conveyed to him by feoffment, is only voidable, because it is for the interest of the infant, and comes within the rule.1
1 Boston Bank v. Chamberlin, 15 Mass. 220; Tucker v. Moreland, 10 Pet. 71; 2 Kent's Comm. lect. 31, p. 234, 235; Zouch v. Parsons, 3 Burr. 1804; Worcester v. Eaton, 13 Mass. 371; Kendall v. Lawrence, 22 Pick. 540; Bool v. Mix, 17 Wend. 119; Gillet v. Stanley, 1 Hill, 121. See Wiser v. Lockwood, 42 Vt. 720 (1870).
2 Slator v. Brady, 14 Irish C. L. 61 (1863); Slator v. Trimble, ib. 343 (1861).
3 Chandler v. McKinney, 6 Mich. 217 (1859); Sanford v. McLean, 3 Paige, 117; Cronise v. Clark, 4 Md. Ch. 403; Thornton v. Illingworth, 2 B. & C. 826.
4 Goodsell v. Myers, 3 Wend. 479; Fisher v. Jewett, Berton, 25; Law-son v. Lovejoy, 8 Greenl. 405; Dubose v. Wheddon, 4 M'Cord, 221; Wright v. Steele, 2 N. H. 51; Whitney v. Dutch, 14 Mass. 462; Reed v. Batchelder, 1 Met. 559; Story on Bills of Exchange, § 84; Earle v. Reed, 10 Met. 389; Fetrow v. Wiseman, 40 Ind. 148 (1872); but see contra, Swasey v. Vanderheyden, 10 Johns. 33; M'Crillis v. How, 3 N. H. 348; M'Minn v. Richmonds, 6 Yerg. 9.
6 Williams v. Moor, 11 M. & W. 256.
6 Goode v. Harrison, 5 B. & Al. 147.
7 Conroe v. Birdsall, 1 Johns. Cases, 127; Curtin v. Patton, 11 S. & R. 309; Fisher v. Mowbray, 8 East, 330; Bingham on Infancy (Bennett's ed.), ch. 2, § 3; Hinely v. Margaritz, 3 Barr, 428.
8 Bac. Abr. Infancy and Age, I. 3; Saunderson v. Marr, 1 H. Black. 75; Finch's Law, 102; Keane v. Boycott, 2 H. Black. 511; Tucker v. More-land, 10 Pet. 59; Eagle Fire Co. v. Lent, 6 Paige, 635; Pickler v. State, 18 Ind. 266 (1862); Trueblood v. Trueblood, 8 Ind. 195 (1856).
§ 104. An infant may not only refuse to perform his executory contracts during his infancy,2 but he may disaffirm them when he comes of age, and leave the other party remediless. As when he borrows money and expends it, or purchases goods and sells them, or consumes them, or makes a promissory note, he cannot be compelled to pay, even though he have received all the benefit thereof; and the plea of infancy is a perfect defence both for the infant and his representative.3