Tucker's Blackstone, p. 300. n. Their practice in common cases is to appoint a guardian pro lite on motion, with notice to the infant. Fox v. Cosby, 2 Call's Virginia reports, p. 1.

The cases relating to the privilege of infancy, may be collected from that title in Co. Litt. with Hargreave and Butler's notes, and Williams's Saunders, as to real property. The cases bearing on their civil contracts, are well collected by Bacon, in his abridgment; by Espinasse, in his Digest; and in Comyn's law of contracts. The body of chancery decisions, must be sought for in the ch. reports under that head, where among other cases relating to infancy, the rights of wards in chancery and female infants generally, are protected with an assiduous severity, carried to the full length of public expedience. If the hands of husbands be so tied up by chancery, as effectually to prevent their wasting the property acquired through the wife, their exertions for the improvement of their common fortune, are also cramped-creditors are misled by the appearance of opulence to trust the husband beyond the funds they can ultimately apply to-and women are carefully instructed in rights and interests, separate from those of their husbands. The state of society may require these protections and precautions, but it is a state of society not to be envied, in this respect at least.

[ *449 ]

*Since the preceding compilations, it seems to be decided in Williamson v. Watts, 1 Camp. C. Rep. et Nis. Pri. 552. That although an infant may give a single bill without a penalty for necessaries and bind himself, he cannot give a bill of exchange. Although the single bill is out of use in England, it is not so here.

The provisions of the French code, respecting tutelage and the interests of infants, will be found in the references under the article Minour. Recueil. Tom. 2. Titres 8, 9 & 10.

The following are the principal cases I have found in American reporters, as to the contracts of infants.

In 1 Dall. 166. Silver v. Shelback: it was decided that the appearance of an infant to a suit brought against him, is not a judicial act, and is fatal on error: and unless in certain cases of real actions, judgment against an infant will be reversed at full age.

Stansbury v. Marks, 4 Dall. 130. Infancy may be given in evidence on non assumpsit in Pennsylvania, owing to the intermingling of common law and equity jurisdictions in that state.

Hart v. Hosack, 1 Caines N. Y. Rep. 26. An infant of 14 years put on trial with a physician, cannot at his own will become a student, so as to charge his parent with the student's fee.

Court will not discharge an infant out of custody on that ground only, where no fraud is suggested; but will leave him to use infancy in his defence. Clemson v. Bush, 3 Binn. 413.

Weed v. Ellis, 3 Caines, 253. The guardian of an infant may arbitrate on behalf of his ward: and the plea of performance will bar the infant

at full age.

Van Winkle v. Ketcham, 3 Caines, 323. The note of an infant given in course of trade cannot be enforced against him.

Conroe v. Bridshall, 1 Johns. N. Y. Rep. 123. An infant at the time of executing a bond, alleged he was full age: yet the bond was held void as against him.

Jackson ex dem. Renselear v. Whitlock, Ib. 213. can be disseized, and then bound to bring his action his coming of age?

Whether an infant within ten years of

The plea of infancy can be pleaded by or on behalf of the infant only: it is a personal privilege. Van Bramer v. Cooper impleaded with Van Bramer, 2 Johns. N. Y. Rep. Same point decided in Hartness v. Thompson and others, 5 Johns. N. Y. Rep. 160. In such a case where there are several defendants and one of them an infant, the plaintiff may enter nol pros. against the infant and proceed against the rest, or the jury may find for the infant, and against the other defendants.

*Whether the deed of land by an infant to A, is avoided by [ *450 ] his deed for the same land to B, when he is at full age? Jackson ex dem. Dunbar et al. v. Todd, 6 Johns. N. Y. Rep. 257. Knapp v. Crosby. 1 Massach. Rep. 476. Judgment cannot be taken against an infant who does not appear by Guardian.

In re Augustus le Forrestiere. 2 Mass. Rep. 419. Can an infant be naturalized in this country on his own petition? or on that of his guardian?

1 Washington's Virg. Rep. 299, Buckner v. Smith. An infant gave a bond for a gaming debt: on arriving at full age he promised to pay it: held that he was bound. 2 Hening and Munford's Vir. Rep. 289. Fitzhugh v. Anderson et al. Infancy does not stop the act of limitations. Tabb et al. v. Archer et al. 3 Hen. and Mun. 400. Infants may contract by marriage articles which they cannot set aside on arriving at full age. Indeed, those articles enure to the benefit of the children who may be the first of that marriage. Harris and M'Henry's Maryland Reports, Vol. 1. p. 459. Lane and Gover. Infant defendant appearing by guardian, in ejectment, is liable to process for costs.

Ib. p. 67. Infant, and those claiming under him, not diverted by the cancelling of a part in chancery, if he was not made a party.

Ib. 152. Infant not barred by an adverse twenty years possession. Cheseldine v. Brewer.

Ib. 568. Infant feme sole bound by a marriage settlement at semble. Tit, 23. De Curatoribus, p. 53. These agreed with tutors in that

they might be appointed by the same magistrates, were held to security, might be excused or removed for good reasons, assigned. They differed from tutors, in that a tutor might be appointed without the consent of the pupil, which generally speaking, a curator could not be. A tutor was appointed principally to the care of the person, a curator to the care of the property. A father could not appoint a curator by will; he might declare a testamentary tutor. A tutor could not be sued by the pupil till after tutelage, a curator might be sued by the minor during his curatorship. In these several respects, the office of curator approached nearer to that of our Guardian, than a tutor. See Cujacius, observ. L. 17. ch. 7. A curator might be appointed compulsorily ad lites, in case of a payment made by a debtor to a minor creditor. Dig. 4. 4. 7. 2. or where a tutor gave in his account. L. 7. Cod. qui petant Tut.

Until the time of Caracalla and Justinian, from the difficulty that minors experienced in getting possession of their property, they were induced to apply to the courts, to have curators appointed, [*451] Dig. 4. 4. *1. 3. Dig. 26. 6. 2. 4 and 5. But those emperors relaxed the practice and exonerated persons from compulsory

curatorship.

Masculi quidem puberes. By the civil law, males of twenty five years of age, and females of eighteen having given sufficient proof by five or more witnesses of their prudence and morality, might obtain a licence from the emperor enabling them to manage their own affairs, under proper restrictions. For minors are not permitted by this licence to aliene, or even to mortgage their immoveable possessions, without a special decree for this purpose. Cod. 2. 45. 1, 2, 3. De his qui ven. ætat, impetr.

§ 1. A quibus dentur curatores. Testamento non dantur. For a father cannot dispose of the goods of his son arrived at puberty, who at that age may make a will for himself, Dig. 28. 6. But the magistrates usually appointed the curator recommended by the father, Dig. 26. 1. 39. 1.

$2. Quibus dentur. Item inviti adolescentes.] Ravardus and others have accused Tribonian, as guilty of an error, in saying, that minors, after fourteen, could not be obliged to receive curators.And, in support of their accusation, they allege the opinion of Ulpian, whose words are these.Hodie in hanc usque ætatem adolescentes curatorum auxilio reguntur, nec ante rei suæ administratio eis committi debebit, quamvis bene rem suam gerentibus. ff. 4. t. 4. l. 1.—But it must be observed, that, with regard to minors after puberty the Roman law has frequently been altered. By the law Latoria, ann. urb con. 550. such adults only, who behaved ill, were obliged to receive curators after proof had been

made of their ill behavior. But afterwards it was enacted, by a constitution of Marcus Antoninus, Ut omnes adulti, curatores acciperent, non redditis causis: which must mean, that adults might be obliged to receive curators, although nothing could be alleged against their conduct; for it is certain, that adults might voluntarily receive curators, even before the law Lætoria. And, when Ulpian wrote, the constitution of Marcus Antoninus was as yet unrepealed; but afterwards, in the latter part of the reign of Antoninus Caracalla, it appears from Cod. 5. t. 31. l. 1. that the Roman law was again altered, and that curators could not be given, but to such minors as were willing to receive them, unless ad litem.

And in this, the law of England may be said to agree in general with the civil law: for, with us, guardianship regularly determines, when the minor has completed his fourteenth year; except, where there is a guardian by nature, or when the father of a minor has specially appointed a guardian either by deed, or will, to continue for a longer *time. And therefore a minor, after fourteen, being of course [*452 ] freed from custody, is at liberty, if willing, to put himself a second time under guardianship, until he is of full age. But, if a minor, being an adult, does not consent to receive a new guardian, then no court would appoint a guardian, unless ad litem.

But, if a testator nominates a guardian, till his son arrives at full age, then the son, although above fourteen, is compelled to receive the guardian, who is thus expressly appointed for a certain time; but, if no certain time is mentioned, there is then no guardianship, if the minor is an adult. Vaugh. 185. (Harris.)

$ 3. De furiosis et prodigis. The text is here deficient and the translation follows the pharaphrase of Theophilus.

In England, whose decisions I believe are generally adopted in this country, lunatics are put into commission under chancery jurisdiction: and lunacy is held to extend not merely to strict insanity, but to all cases of mental imbecility or incapacity from any cause, as disease, habitual intoxication, &c. Ridgeway v. Darwin, 8 Vez. 65. ex parte Cranmer, 12 Vez. 445. How far the court of chancery will interfere in the disposal of a lunatic's estate, what nature and extent is conceded to a commission of lunaey, and to what controul they are subject, will be found under this head in each of the volumes of Vezey, junior, from 8. to 14.

In Holland I believe curators are appointed to take care of the estate of prodigals. See the cases cited in the notes to Folliot v. Ogden. 1 Henry Blackstone's Rep. 131.

The chancery jurisdiction in cases of idiocy and lunacy in England,

arises from the fiction that the king is the guardian of all such persons. 4 Co. Rep. 125.

Tit. 24. Qui satisdare cogantur, p. 55. This was done by joint security; fide-jussore. Dig. 46. 6. pass. except in testamentary curatorships, for the same reason that we do not compel an executor, although, we compel an administrator to give security. Guardians appointed by the court, were sometimes exempted. Dig. 26. 2. 17. 19. L. penult Cod. de tut. et cur. qui non statisd. L. 7. § 5. Cod. de curat. fur. Dig. 26. 5. 13 et ult.

$2. Qui ex administratione. Sciendum. Various remedies are given to pupils and minors, who have received any damage by the male-administration or negligence of their tutors or curators.

The personal actions, to which minors are intitled, against their tutors or curators, are called Actiones tutela and negociorum gestorum utiles. Quicquid tutoris dolo vel lata culpa aut levi, seu curatoris, [ *453 ] *minores amiserint, vel, cum posseni, non acquisiserint ; in tutelæ seu negotiorum gestorum utile judicium venire, non

est incerti juris.

Cod. 5. t. 51. 1. 7.

hoc

And the heirs of tutors and curators are also liable to the same actions ob dolum et latam culpam. Cod. 2. t. 19. l. 17.

Pupils or minors may also sue the suretics of their tutors or curators, (and even their heirs) by an action arising from the stipulation entered into by such sureties. D. 27. t. 7. ll. 3, 5. Col. 5. t. 57. ll. 1, 2. And lastly, as their dernier resort, minors have a right to an action. called subsidiary, against any magistrate, who hath neglected to do his duty, either by taking no security, or what was not sufficient. D. 27. t. 8. l. 1. §. 6.

But the heirs of tutors, curators, sureties and magistrates, are only suable in cases of fraud in themselves, or in those, to whom they are heirs; but not merely on account of negligence. D. 27. t. 7. l. 4. C. 5. t. 75. 1. 2. Claude Ferriere, h. t. (Harris.)

[Constitutionibus] Cod 5. t. 43. 1. 3.

Cicero mentions the judicium tutela, orat. pro Roscio 6. Delinquent tutors were sometimes severely punished: See Suet. in Galb.

Exigere solent. The action

$ 3. Si tutor vel curator cavere volit. L. 3. Cod de suspect tut. $ 4. Qui dicta actione non tenentur. of caution was the business of inferior magistrates: of the scribes at Rome, and of the Duumviri in the provinces. Cod. 5. 75. ult. Dig. 27. 8. 1. Dig. 15. 1. 1. (Harris.)

Tit. 25. De numero Liberorum. p. 57. Excusantur autem. is no compulsory guardianship either in England, or this country.

There