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twenty-one years, which age is completed on the day preceding the anniversary of a person's birth,q" who till that time is an infant, and so styled in law. Among the ancient Greeks [464] and Romans women were never of age, but subject to perpetual guardianship, unless when married, “nisi convenissent in manum viri ;" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty-five years. Thus, by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point (both probably copying from the old Saxon constitutions on the Continent, which extended the age of minority" ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt"); but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty; and in Holland at twenty-five.

3. Privileges and disabilities of infants.

3. Infants have various privileges and various disabilities;

4 Salk., 44, 625; Lord Raym., 480, 1096; Toder v. Sansam, Dom. Proc., 27 Feb., 1775.

* Stiernhook, De Jure Sueonum, 1. 2, c. 2. This is also the period when the king, as well as the subject, arrives at Pott., Antiq., b. 4, c. 11; Cic., Pro full age in modern Sweden.—Mod. Un. Muren., 12.

• Inst., 1, 23, 1.

(17) This is founded on the rule that the law, in computation of time, allows no fractions of a day; see Co. Lit., 135; Rep., p. 2; infra, vol. ii., p. 141. Sir Harris Nicholas, however, remarks, that it is evident from Fœdera (Allen's edition), vol. i., part ii., p. 762 (the record of the surrender of Scotland by Baliol), that what occurred in the earlier part of the 20th of November is said to be in the end of the twentieth year of the reign of King Edward I., while what occurred in the later part of the day is said to be in the end of the 20th and beginning of the 21st, and the Red-Book of Exchequer agrees herewith. In the computation of time between two given days, the general rule is that one day is to be included, and the other excluded; see 1 My. & Cr., 50, and 4 B. & Ad., 255. The recent case of Gorst v. Lowndes, 5 Jur., 457; Sim., 434, is a curious instance of the application of this rule. A testator directed his trustees to accumulate the income of all his property at compound interest for the term of twentyone years from his decease, and at the end of that term to convey the same to certain persons for life and then over. He died on the 5th of January, 1820, at half past two o'clock P.M. The clear residue of his personal estate, and the income of his real estates, and of the accumulations thereof, up to the 4th of

Hist., xxxiii., 220.

January, 1841, consisted, besides certain other sums of stock, of £184,984 consols, one half year's dividend upon which, amounting to £2774, and accruing due on the 5th of January, 1841, was claimed by the first tenant for life under the will, who submitted that the term of twenty-one years, or period of accumu lation, was to be completed in the same way as the period of minority; where, if a child was born on the 5th of January, 1820, it would be of age on the 4th of January, 1841; consequently, that the term of twenty-one years expired on the 4th of January, 1841. On the other hand, the persons beneficially interested in the capital of the accumulations contended that the said dividends ought to be added to the capital on the ground that the accumulation was directed by the testator, and perfectly valid under the Thellusson Act until the end of the twenty-first anniversary of the day of the death of the testator; in fact, that that day was to be reckoned in his life, and not in the said term, which did not commence until the first moment of the 6th of January, 1820. His honor decided in favor of the parties last mentioned; from which decision it seems to follow, that a man is to be considered in law as alive to the last hour of the day on which he dies.


but their very disabilities are privileges, in order to secure them from hurting themselves by their own improvident acts. An infant can not be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise ; but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant's cause; and it frequently happens that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offense; but under the age of seven he can not. The period between seven and fourteen is subject to much uncertainty; for the infant shall, generally speaking, be judged prima facie innocent: yet if he was doli capax, and could discern between good and evil at the time of the offense committed, he may be convicted, and undergo judgment and execution of death, though he hath not attained to years of puberty or discre- [465 ] tion. And Sir Matthew Hale gives us two instances: one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that malitia supplet ætatem. So, also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment by the opinion of all the judges.y

With regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters; but this may be said in general, that an infant shall lose nothing by nonclaim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.


It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor, indeed, any manner of contract that will bind him."

u Co. Litt., 135.

w 1 Hal., P. C., 25.

But, still, to all these

* 1 Hal., P. C., 26.
y Foster, 72.

(18) This exemption does not seem 3 & 4 Wm. IV., c. 27, s. 16-18; 3 & 4
to extend beyond the privilege conferred Wm. IV., c. 42, s. 4.
upon infants, that they shall lose nothing
by non-claim or neglect to demand their
rights during the minority; but be al-
lowed (like lunatics, persons beyond the
seas, &c.) a certain period, after becom-
ing sut juris, in which to bring forward
their claims; see 21 Jac. I., c. 16, s. 7;

(19) The privilege of infancy is a personal privilege; it can be pleaded by the infant alone or his representatives (2 H. Bl., 515); consequently, so far as the contract affects other parties, and so far as other parties are bound by it, it is good


rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true that infants can not aliene their estates; but infant trustees, or mortgagees, are enabled to convey, under the direction of the Court of Chancery or Exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint.z Also, it is generally true that an infant can do no legal act: yet an infant, who has an advowson, may present to the benefice when it becomes void. For the law in this case dispenses with one rule, in order to maintain others of far greater conse[466] quence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop), rather than either suffer the Church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop." An infant may also purchase lands, but his purchase is incomplete; for when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement. It is, further, generally true that an infant, under twenty-one, can make no deed but what is afterward voidable; yet in some cases he may bind himself apprentice by deed indented or indentures for seven years;" and he may by deed or will" appoint a guardian to his children, if he has any." Lastly, it is generally true that an infant

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and valid, and they may be sued by the
infant or others for a breach of it; as in
actions on bills of exchange (4 Esp.,
187); contracts for purchase or sale of
goods (2 M. & S., 205); or other trading
contracts (6 Taunt., 118), and, as already
observed, in case of contracts of mar-
riage, supra, p. 436, n. 7. There is only
one exception to this rule, viz., in the
case of a submission to arbitration, the
essence of which is, that to be binding
on either party it must be so on both;
see 6 B. & C., 255.

• Stat. 5 Eliz., c. 4; 43 Eliz., c. 2; Cro. Car., 179.

d Stat. 12 Car. II., c. 24.

(23) Not by will since the 1st of January, 1838; see 7 Wm. IV., and 1 Vict., c. 26, s. 7.

(24) And a lease for years, whether reserving rent or not (3 Burr., 1794), or any other deed or contract which apparently is beneficial to the infant at the time (2 T. R., 161) binds the infant while under age, but no longer, unless it be ratified in writing by some act of the infant after majority; see 9 Geo. IV., c. 3, s. 5; 11 A. & E., 934; but a bond with a penalty or a deed which works a forfeiture, being clearly to his detri ment, never binds the infant, and is incapable of confirmation; see 3 Burr., 1808; 2 M. & S., 477; 8 E., 330. There are other acts of an infant which have no obligatory effect whatever on an infant until ratified by him after majority; thus an account stated (1 T. R., 40; 11 (22) Vide supra, p. 426, n. 6; 3 B. & M. & W., 256), a bill of exchange (2 B. C., 485; 5 T. R., 715.

(20) See, also, 6 Geo. IV., c. 74; 11 Geo. IV., and 1 Wm. IV., c. 60; 4 & 5 Wm. IV., c. 23; 1 & 2 Vict., c. 69.

(21) But the concurrence of the guardian seems necessary; see Cro. Jac., 99; Harg., Co. Lit., 89 a, n. 71.

& C., 824), &c.

can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries;" and likewise for his good teaching and instruction, whereby he may profit himself afterward. And thus much, at present, for the privileges and disabilities of infants.

• Co. Litt., 172.

(25) Numerous cases have arisen in our courts of law with respect to what are necessaries, the general result of which seems to be that necessaries are such articles as a jury think so, considering the age of the infant and his real (not ostensible) station in society at the time of the contract, and also the quality and quantity of the goods supplied under the contract. Thus, a gold watch, chain, and breast-pin, under £8 in value, were held necessaries for the son of a gentleman of fortune, though rings were not, being only for ornament (6 M. & Wm., 42); hire of lodgings is a necessary (1 Scott, 458); money advanced to procure his discharge from arrest (5 Esp., 28;

13 E., 60); or for his education (1 Sid., 112), &c.

But money advanced as a premium of apprenticeship (Peake, Ad., c. 52); goods supplied to trade with (Str., 1083; Cro. Jac., 494; 2 Esp., 480); a racingjacket (6 Car. & P., 698); the hire of horses, gigs, &c. (7 Car. & P., 52; 1 Man. & Gr., 550), unless for the health of the infant (1 Jur., 623; Str., 1101), &c., are not necessaries. As to all other contacts entered into by an infant for other than necessaries, the rule seems to be that no action can be brought against either the infant or his representatives, either during his minority or afterward, unless the infant has confirmed the contract after his minority ceased.



Corporations; their purposes



WE have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

These artificial persons are called bodies-politic, bodies corporate (corpora corporata), or corporations; of which there is and advant a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities which, if they were granted only to those individuals of which the body corporate is composed, would, upon their death, be utterly lost and extinct. To show the advantages of these incorporations, let us consider the case of a college in either of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this was a mere voluntary assembly, the individuals which compose it might, indeed, read, pray, study, and perform scholastic exercises together, so long as they could agree to do so; but they could neither frame, [468] nor receive any laws or rules of their conduct; none, at least, which would have any binding force, for want of coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities; for if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So, also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law:

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