All persons are called infants, by the common law of England and America, until the age of 21, though in Vermont, Maryland, Illinois, and perhaps some other states, by statute, women are of full age, for most purposes at least, at 18. An infant becomes an adult, or of full age, at the beginning of the last day of his 21st year, or the day before his 21st birthday, upon the ancient principle that the law knows no parts of a day, and when the last day of infancy begins, it is considered as ending. The most general principle in reference to the legal condition of an infant is his inability to bind himself by his contract. The law asserts this inability for the sake of the infant, not as a restraint, but as a protection to him, and finds that upon the average of mankind this protection should be extended until the age of 21. This inability being intended for his protection only, in legal phrase it is said to be his shield, and he must not use it as his sword. Because it is for his benefit, the first and most important exception is, that he may bind himself by his contract for necessaries; for it might harm and could not help the child if he were unable to pledge his credit for shelter, clothes, or food.
At first the exception was confined to strict necessaries; but it has been gradually extended, until now it is frequently said to mean all those things which it is perfectly proper for the infant to have, taking into view his age, his means, and his condition or circumstances. Thus he may make a valid bargain for clothes, or even ornaments or furniture, as well as food and lodging, more expensive than another may need, but not extravagant or superfluous for him. In England it has been held that instruction in reading and writing is among these necessaries for every one who could pay for it. In the United States it is held that the full benefit of a good school education is among these necessaries; and there seems to be no reason to doubt that a collegiate education will be held within the rule. So, as an infant may lawfully marry, necessaries for his wife and children may be lawfully contracted for by him. The line is drawn so as to exclude quite distinctly all trade or business bargains; for the whole legal doctrine of infancy rests on the assumption of the infant's inability to carry on the business of manhood until he has the maturity of at least 21 years. And it should be noticed that not all his contracts even for necessaries are, strictly speaking, valid.
Thus, if he buys suitable food or clothing, and agrees to pay a certain price therefor, or gives his note therefor, he is not bound to pay that price or that note; but if sued on the promise, he may defend so far as to show that the food and clothing were not worth as much as he promised to pay, and then he will be held only for their value. But he cannot avoid his obligation to pay their full value, merely because he promised to pay too much. Formerly the distinction was, that an infant's contracts, not for necessaries, were entirely void, if the court saw that they could not be beneficial to him, but only voidable" by him if this were doubtful. Now, however, the prevailing rule is, that all contracts of an infant, not for necessaries, are voidable by him, but that none are void; because all may be made valid by his ratification after full age, which could not be the case if they were wholly void at their inception. Any acts or words of affirmance on his part have the effect of this, ratification, if they are made after majority; but a mere acknowledgment that when he was an infant he made such a promise, does not bind him when adult.
The mere fact that, after full age, he does not disaffirm his contract made in infancy, does not amount to a ratification; but it may be made to have this significance and effect by circumstances, and certainly has this effect if after majority he voluntarily continues for any considerable time in use, possession, and ownership of property acquired by his contract made while an infant. A distinction is taken here between an infant's real estate and his personal estate; and it is said that he may ratify a contract for the latter with much less of formal and positive ratification than is necessary for the confirmation of his conveyances of real estate. Still, a silent acquiescence in the possession of his grantee, if long enough, and with full knowledge of his rights, may amount to ratification. - As the disability of an infant is only for his personal benefit, no one can take advantage of it but himself or his legal representatives. Therefore, if an adult makes a business contract with an infant, the adult is bound, although the infant is not. Thus, an infant may sue an adult for a breach of promise of marriage; but neither an adult nor an infant can sue an infant for such breach.
So an infant may bring an action on a mercantile contract, although such an action cannot be brought against him. It is sometimes important to determine whether an infant is bound by the obligations which attach to property that he acquires by his contract. If he takes the property by direct operation of law, as by descent or marriage, there is no question, for the rule transit terra cum onere would apply, and be extended even to property that was not land. But if he acquires the property by his own act, the law may not be so certain. Thus, an infant who takes a lease of land, and holds possession until rent is due, is bound to pay the rent, like any other person; but he may, when he will, disclaim the land and annul the lease, or rather suspend the lease; for it is said that when he is of age he may avoid his disclaimer.' So, if he buys stock in a corporation, he is liable like an adult for assessments and calls, but may waive his contract and give up his stock. While an infant is protected against his contracts, he is not protected against his acts; that is, he is answerable in like manner as any other person for the injury he inflicts by his wrong doing, excepting so far as actual infancy or immaturity tends to make him irresponsible, or to excuse him, as an equal amount of actual incapacity would excuse any one.
But, in the case of tort, as before in the case of contract, if he gives his promise or his note as a compensation for the wrongs he inflicts, he would be held not on his promise, but only to the extent of his original liability. The most interesting and the most difficult application of the rule, that an infant is liable for his wrong doings, occurs in relation to his frauds in representing himself as of full age. Where his tort is merely the breach of his contract, he cannot be sued on the tort, for this would be holding him indirectly to his contract. But if there is a distinct wrong for which he is responsible, he is answerable, although it be connected with the contract; and this, whether it be before or after the contract. Thus, if he hires a horse for an unnecessary ride, he. is not liable for the hire; but if in the course of the ride he abuses and injures the horse, for this we should hold that he would be liable; and if he should sell the horse, an action for its value would lie, nor would his infancy be a bar.
So if he falsely and fraudulently represents himself as of full age, and on the strength of these representations his note or bond is received in payment for a purchase, he cannot be held on the note or bond, nor as purchaser for the price of the goods; but the purchaser may have redress in the proper action for his fraud. And it would seem that infancy should not be a bar to an action founded upon a false and fraudulent warranty, although on this point the authorities are in conflict. So if goods are sold to an infant on his fraudulent representation that he is of age, we should say that the seller might consider the sale null and void, and reclaim his goods as soon as he discovers the fraud; but perhaps not until his refusal to pay, or some other indication of his intending injury. "We do not think, however, that his mere silence, and his permitting the seller to act on the supposition that he was of full age, would have this effect. When goods are sold to an infant with no fraudulent representation on his part, and with a knowledge of his infancy on the part of the seller, and the infant subsequently refuses to pay for them, and avails himself of his infancy, as he certainly may, to refuse payment of the price, some doubt, or at least some conflict, exists as to the rights of the seller.
Some authorities hold that the seller is remediless, because the privilege of the infant protects him altogether. Other authorities hold that this privilege goes no further than to permit him to cancel the sale if he will, for this is quite enough for his protection; and when the sale is cancelled, its effect is wholly destroyed, and the thing sold becomes again the property of the seller, who may repossess himself of it at his pleasure. It seems to be universally admitted that if the infant has received the goods and paid for them, he may return the goods and recover the money, but cannot recover the money without returning the goods. - A very important part of the law of infancy, and that which perhaps gives rise to more disputes and litigation than any other, is that which determines the obligation of the parents in respect to infant children. Unfortunately, a part of this law is not quite settled. In some form or other, and in some degree, the obligation of a father to maintain his infant child is acknowledged by the law of all civilized communities. For the infant cannot support himself, and therefore some one must do it; and then the only question is, whether this obligation falls directly on the state, or in the first place on the father.
Justice and reason and all the best feelings of human nature would seem to answer that it is primarily the duty of the parent. But in England, after some uncertainty, and with some reluctance, and perhaps some tendency to make this moral obligation of the father a legal one also, it seems now to be the prevailing and perhaps established rule, that there is no other foundation for the liability of the father for necessaries supplied to the child, excepting the principle of agency; that is, the father is liable only when the child contracts for them, and may be deemed the agent of the father in making the contract. In a number of our states this doctrine has been very positively asserted. But in England, and in all of the United States which require the father's authority to be proved, this authority is inferred from very slight evidence. Perhaps no case goes so far as to say directly, that if a father sees or knows that goods are supplied to his infant child, and he does not signify his dissent, his assent and responsibility may be inferred; but some of them go, in fact, to almost this extent.
But the question occurs: How would these courts decide where the case was one which made agency or authority impossible? As if an infant of a month old, or an older child reduced to utter incapacity by starvation or illness, were lost in a wood, and found by a person who supplied him with strict necessaries; would he have no claim on the father? Perhaps the law on this subject cannot be said to be determined either in England or America; but as prevailing rules, in this country at least, derived from an investigation and comparison of the authorities, we should say: 1, where goods are supplied to an infant which are not necessaries, the father is not answerable unless his authority can be proved in the common way; 2, where necessaries are supplied, his authority will be presumed, unless he either supplied them himself, or was ready to supply them; 3, where an infant lives with the father or under his control, the father's judgment as to what the child should have will be so far respected, that ho will be held liable only for those things which were strictly necessary to preserve the child from absolute want and suffering; 4, where the child has voluntarily left the father, and does not live with him, the father's authority must be strictly proved, unless in case of extreme youth, or perhaps of absolute necessity; 5, where the child has been cruelly driven away by the father, he carries with him the father's credit for necessaries; 6, in all these rules, "necessaries" mean strict necessaries; and if the child is able to earn or provide them in part, this must be taken into consideration.
Where a child has an independent property of his own, courts now go, in general, very far in requiring this to be made the fund for his support, before the father is called upon. Whether the mother is under the same liability as the father may not perhaps be certain; but we consider the decided weight of authority as qualifying the mother's liability importantly, even where its existence is admitted. - The father thus liable for the child is entitled to its custody (unless for special reasons), and is also entitled to all the child's earnings; but he may agree with his minor child to relinquish his right, and thereafter to have no responsibility for his support. Such agreements are common in the United States; but if a stranger supplied a minor child, at a distance from home, with strict necessaries, to save his life or health, even with knowledge of this bargain, we are not disposed to believe that it would bar his claim against the father. If a child is of full age, the obligation to support him is so entirely gone, that even if a father, after necessaries are supplied to an adult child without his request, promises to pay for them, he cannot be held on this promise, because there is no legal consideration for it.
It may be added that if an infant, while under his father's care, and actually supported by him, makes a contract even for necessaries, and gives his own promise to pay for them, the infant is not liable on this contract or promise, because, as it is said, this would interfere with the father's right to judge what is necessary for him. Perhaps a better reason is, that in such a case these things are not necessary in any proper sense of the word, for the very reason that the child derives a sufficient support from the care of the father. - A father is never liable for the wilful tort of an infant child; nor has he a right, merely as father, to bring an action in his own name for an injury to his child, unless in some way, as by the necessary expense or otherwise, he is himself injured. Neither can he give a valid release for an injury to his child.