
    [Sunbury,
    June 21, 1824.]
    CURTIN and another against PATTON and another.
    in error.
    In an action on a contract entered into by a minor, as security for another, the plaintiff cannot, where the plea is infancy, give in evidence, that the defendant, while a minor entered into a number of contracts, received conveyances of land in his own name, and for his own use, and transacted a variety of business, as an adult.
    Nor is evidence admissible to show, that the minor was in partnership with the person for whom he became security.
    To make a contract, entered into by a minor, as security, binding upon him when of age, it must appear, that after his arrival at full age, he confirmed the contract by some distinct act, with full knowledge, that it would be void without such confirmation.
    This cause was tried at a special Court of Common Pleas, held for Centre county, before President Reed.
    
      Roland Curtin and Moses Boggs, the plaintiffs below, declared in case, against Edward B. Patton and Samuel Patton, the defendants, in substance as follows:
    That by certain articles of agreement, made the 13th of December, 1S13, between Curtin and Boggs, iron masters, on the one part, and William Patton on the other part, it was agreed to rescind a lease of a certain furnace in Centre county; that the said William Patton should take back the said furnace, with the appurtenances, from Curtin and Boggs, after the 1st of the following March, and that William Patton should take the stock of the said furnace, on the said 1st of March, at a fair valuation, to be made by three impartial men, to be paid for in the following manner, &c: That the said William Patton engaged to give to the said Curtin and Boggs, good and sufficient security for the said stock, on the said 1st of March; and, that if the said security was not given, Curtin and Boggs might sell any part of the stock which they might think proper to the Pennsylvania Furnace, or to any other company or person: That the said William Patton further engaged, to pay the said Curtin and Boggs for an improvement made in and about Tussey Furnace, to be valued and appraised by the persons chosen to value and appraise the, stock, and to give security as soon as the amount was ascertained, to pay the same in nine months after the said 1st of March, in bar iron, or in cash as aforesaid : That, in pursuance of the covenants and agreements thus entered into, Joseph Green, John Mitchell and William Stewart were chosen by the parties to valué the property at Tussey Furnace, who did value it at 2,841 dollars 34 cents ; whereupon the said William Patton, Edward B. Patton and Samuel Patton, on the 3d of March, 1814, made a certain promissory note, in writing, subscribed with their hands, and delivered the same to the said Cur-tin and Boggs, by which they promised to pay to them the appraised prices for such part of the stock at Tussey Furnace, as should not be taken by Wallace and Lyon, at the times mentioned in a certain agreement in writing, between the said Curtin and Boggs, and William Patton, and in proportion to the quantity they had received: That the said Wallaec and Lyon took property at the appraised prices, amounting to the sum of 1,338 dollars 3 cents, leaving a balance of 1,503 dollars, and half a cent. By reason whereof, &c.
    The defendants pleaded non assumpserunt and payment; and on behalf of Samuel Patton, a plea of infancy was entered.
    After evidence had been given in support of the plea of infancy, from which it appeared, that Samuel Patton arrived at full age on the 26th of May, 1814, the plaintiffs offered to prove, that before and at the date of the agreement declared on', Samuel Pat-ion was, and had been in business, dealing for himself to a large amount, and receiving conveyances of land in his own name, and for his own use. This evidence was objected to by the defendants counsel, and rejected by the court, to whose opinion an exception was taken.
    The plaintiffs then offered in evidence a deed, dated 3d of Jlpril, 1814, from William Patton to Edward B. and Samuel Patton, 
      conveying a large estate, the consideration for whieh was stated to be 30,000 dollars. They further offered to show,, that Samuel was doing business in bank before that time, by endorsing notes, &c. which were discounted. The court rejected the evidence, and their opinion was again excepted to.
    The plaintiffs offered in evidence a note, dated the 25th of August, 1814, drawn by William and Samuel Patton, and indorsed by Robert J. Stewart, for the accommodation of the drawers, which it was admitted had been discounted in bank. An objection was made to this testimony, and it was overruled by the court, who sealed another bill of exceptions.
    They then offered a bond, dated May 14th, 1814, given by William, Edward, B. and Samuel Patton to James Maxwell, conditioned to make him a good title to a certain tract of land. The execution of the bond was admitted, but the counsel for the defendant objected to its being read in evidence, and the court sustained the objection. Their opinion was excepted to.
    The depositions of Edward B. Patton and John Anderson were then offered in evidence by the counsel for the plaintiffs; parts of them objected to, and the objection sustained by the court, whose opinion was excepted to. But the reporters have no means of knowing what.were the contents of these depositions.
    The plaintiffs having proved, that Samuel Patton, in the' year 1810 or 1811, did business in the store of Patton and Davis, offered to prove, that he was at that time a partner in the concern, and that he had declared that he was interested in it. The evidence was objected to, and rejected. A bill of exceptions was, thereupon, tendered by the counsel for the plaintiffs, and sealed by the court.
    The counsel for the plaintiffs asked the witness who had proved that Samuel Patton did business in the store of Patton and Davis, whether it was mentioned at that time, that he was of age ? The question was objected to, and overruled, and an exception taken to the opinion of the court.
    The plaintiffs proposed to prove, that on the trial of .this cause before arbitrators, Samuel Patton did not allege infancy in his defence. It seemed, that the arbitrators had filed no award, nor did it appear that they had acted in the business. The admission of the evidence was opposed, the court rejected it, and sealed a bill of exceptions.
    The counsel for the plaintiffs then offered in evidence an agreement,! dated 25th of October, 1814, between William Patton and Samuel Patton, which recited, that whereas, William Patton did, on.the.--day of-, A, D. convey unto Samuel Patton certain portions of Tussey Furnace, together with the lands, ore banks, &c. thereto belonging, and also certain parts or portions of Sligo Forge,lands, &c. and also certain parts or portions of a farm, known by the name of the Wallace Farm, in consideration' of which, the said Samuel Patton was to have become bound, together with the said William, in all the said William’s debts, and by his signature or indorsement, on certain notes discounted in bank, did become bound; therefore, the said Samuel did, for himself, Lis heirs, and assigns, release, and forever quit claim, and gj^’e up all right, title, and claim, whatsoever, of him the said Samuel, of, in, and to the above-mentioned property, lands, ore banks, furnaces, forge, &c., provided the said William should release him from his indorsements aforesaid; and when he should be so released, the said Samuel bound himself to make a deed of conveyance to the said William, of all the above described property, &c. To the admission of this agreement in evidence, the counsel for the defendant objected, and the court refused to admit it; upon which, an exception was taken to their opinion.
    Conformably to their agreement, Samuel Patton executed a release to William Patton, on the 1st of March, 1815.
    The plaintiffs proposed to prove, by the testimony of JR. T. Stewart, what Sligo Forge was sold for to Patton and Porter. The evidence was objected to on the ground, that as it was conveyed by deed, the deed ought to be produced and proved. The evidence was rejected by the court, and their opinion excepted to.
    Lastly, the plaintiffs proposed to give evidence, that many years ago, Samuel Patton acknowledged, that a partnership sub-. sisted between himself and William Patton. The evidence being objected to, it was overruled by the court, who sealed another bill of exceptions.
    The court were requested by the counsel for the defendant, to charge the jury as follows:
    1., That if the jury believe, that on the 3d of March, 1814, when the contract on which this suit is brought was executed, Samuel Patton was a minor, and that he did not, after his arrival at full age, ratify and confirm the said contract, their verdict should be' for the said Samuel.
    
    
      2. That nothing short of an express promise, with full knowledge of his rights and privileges, after his arrival at full age,would amount in law to a ratification of a contract made by a minor, which was not binding during his minority.
    3. That there is nothing in the deed from William Patton to Edward B. and Samuel Patton, of the 3d of April, 1814, the agreement between William and Samuel Patton of the 25th of October, 1814, and the deed of release from Samuel to William, Patton of the 1st of March, 1815, which afford ány essential evidence, that the premises mentioned in the deed of the Sd of April, 1814, were conveyed to the said Samuel Patton, to indemnify him against his liability on the agreement on which this suit is brought, and that there is nothing in the said deed and agreements which can make the said Samuel liable on the contract on which this suit is brought, provided the jury believe, that the said Samuel was a minor when he executed the said contract.
    The opinion of the court being in favour of the defendant on all these points, it was excepted to by the counsel for the plaintiffs, who removed the record to this court by writ of error.
    Errors were assigned in the opinion of the court below, in rejecting the evidence offered by the plaintiffs, and in their instructions to the jury, which were argued by Burnside and Hale, for the plaintiffs in error,
    who cited Stansbury v. Marks, 4 Ball. 130. 3 Ba. Jib. 612. Infancy and Jge, I. No. 8. 2 Eq. Jib. 488, 9. Guardian B. 3 Binn. 457. 2 Serg. fy Emole, 413. 1 Gilb. E. 319. 3 Burr. 1801. Savage v. Foster, 9 Mod. 38.
    
      Blanchard and Carothers, for the defendant in error,
    were stopped by the court, whose opinion was delivered by
   Duncan, J.

The errors assigned are fifteen in number; eleven bills of exceptions to evidence, and three errors assigned in the charge 'of the court. The counsel for the plaintiffs in error, have abandoned the first, which was the entry of judgment on the demurrer. The eleven bills of exceptions to the rejection of evidence, are nearly of the same complexion; a rejection of evidence to show a dealing by the defendant, while a minor, his entering into a number of contracts, and transacting business as an adult. The objection to the charge of the court, was to the instruction given to the jury, that there was no evidence of any confirmation of the contract by Samuel Patton, after his arrival at fall age. The declaration states, that Samuel Patton was the security of his brother William, for his performance of certain.articles of agreement, entered into between the plaintiffs and him.

To admit evidence of a partnership between the brothers, and charge Samuel as a principal, would be repugnant to the contract declared on, which if it can be supported, must be by rejecting as surplusage, every word in the declaration, in which the stipulation is declared on as a promissory note. It was not for any sum certain; the sum was to depend on a future appraisement.' The declaration is on a special contract, in which the plaintiffs would be bound to prove the case as they , stated it. The evidence, therefore, was properly rejected. The case must be considered as a contract, in which Samuel Patton, a minor, had bound himself as security for his brother, in an amount afterwards to he ascertained.

The plaintiffs say, the evidence was to prove a fraud in Samuel, in holding himself out to the world as a man of full age; and therefore, his contracts, though an infant, should bind him. It was not offered to prove, that Samuel represented himself as of full age; but if he had, the evidence was most properly rejected, for, as the action arose out of the contract, and as the plaintiffs had declared on the contract, the false representations, and deceit of Samuel, could not be admitted; and I do not think, that it was possible to support an action for deceit, on the contract of an infant) for that would be to deprive the infant of the protection given to him by the law. Now, the law has very wisely protected infants against their liability on contracts, except for necessaries, and if it were, in the power of a plaintiff to convert that which arises out of a contract, into a tort, there is an end of the protection. Johnson v. Pye, 1 Sid. 358. Lord Chief Justice Keeling, expressed great indignation at the attempt to charge an infant in tort, upon that which was the foundation of an action of assumpsit, and said, “We will stay the judgment for ever, else the whole foundation of the common law will be at stake.”

In Groves v. Neville, 1 Keb. 778, 913, 914, in an action on the casej in the nature of deceit, a sale by the defendant of goods as his own, when in truth, they belonged to another, the court said, this is no actual tort, nor any thing ex delicto, but only ex contractu. And in Johnson v. Pye, 1 Keb. 905, 913, and 1 Lev. 169, where the defendant had falsely and fraudulently asserted himself to be of full age, and had, as such, executed a mortgage to the plaintiff, it was holden, that the defendant, an infant, was not answerable, because the action was founded on the very contract in which ihe defendant had cheated the plaintiff. Even if the infant had borrowed the money himself, affirming, that he was of age, and given bond for it, and being sued on the bond, avoids it by reason of mon-age, yet no action lies against him for the deceit. Bingham on Infancy, 111. 3 Ba. Ab. 591. The principle is as well es-

tablished as any rule of the common law, that a plaintiff cannot convert an action, founded on a contract, into a tort, to deprive an infant of the benefit of a plea of infancy. A case, I think, may be found, where the plaintiff declared, that at the defendant’s request, he had delivered a mare to the defendant, to be moderately ridden, and the defendant inhumanly intending, &e., wrongfully, and injuriously rode the mare, so that she was damaged ; and it was held, that the defendant might plead his infancy in bar; the action being founded on a contract. It is said in some books, that an infant running about town, taking up goods on credit, on his assertion that he was of full age, may be indicted as a common cheat. Barlow’s Justice of Peace, 100. 1 Burns, 278. The trading contracts of an infant are void. He may enforce them at his own election, but he is not liable for goods delivered to him to trade with. 2 Str. 939. An infant cannot be a bankrupt. 1 Ld. Raym. 443.1 Atk. 146. Nor can a debt, contracted during infancy be the ground of a commission, though the act of bankruptcy be committed after he came of age. 12 Mod. 443. In this contract, there was no possibility, or appearance of benefit to the infant; it is, therefore, not voidable only, but absolutely void. Holt v. Ward, Fitzgib, 278. All this evidence was properly rejected.

On the confirmation: I am not able to discover any thing like this, either in the deed of the 3d of Jlpril, 1814, from William Patton to Edward and Samuel Patton; -in the agreement between William and Samuel Patton, of the 25th of October, 1814, or the release of Samuel Patton to William Patton of the 1st of March, 1815. The agreement of the 25th of October, 1814, so much relied on, has no relation to this contract. It recites, that Samuel was to have become bound with William, in all the said William’s debts. This is but part of the sentence. The subsequent part explains what was intended by all the said William’s debts, viz. “ by his signature, or. indorsement on certain notes discounted in bank.” He states how far he was bound; by certain notes discounted in bank. The three agreements of the infant, after he became of age, would not amount to a confirmation. There must be some distinct act, by which he either receives a benefit from the contract after he arrives at full age, or does some_ act of express ratification. All the cases cited are, where the contract was voidable, and might probably be of benefit to the infant; and in all of them it appears, that some act was done by the infant, evincing his assent, as purchases made, or leases given, rendering a rent, by which, either the continuance in possession, or the receipt of the rent received, showed his direct assent and ratification. Jackson v. Carpenter, 11 Johns. 542. If a partition is unequal, and the infant takes the profits, after his arrival at full age, it bars him for ever. In the case of an infant, who was merely security, where the contract is absolutely void, it would appear to me to require a confirmation, when of full age, with an intent of confirming, and with the knowledge that the act would be void, uAless he confirmed it. There shoudl be evidence of a distinct act of confirmation. None such was offered. The written evidence was not of that nature, nor had it any relation to this contract.

Judgment affirmed.  