
    M’Minn vs. Richmonds.
    When the court can pronounce the contract of an infant prejudicial to him, it is void; when it is for his benefit, as for necessaries, it is good; hut when it is of an uncertain nature as to benefit or prejudice, it is voidable only, at the election of the infant.
    A negotiable note executed by an infant, is void.
    A court of equity has jurisdiction to order a negotiable note, executed by an infant, to be delivered up and cancelled.
    Although a negotiable note of an infant is void, yet if it were given for necessaries, the infant is liable for the reasonable value of the necessaries.
    This is a bill in equity filed by the complainant, M’Minn, against the defendants, praying that two notes under seal, each for two hundred and fifty dollars, may be decreed to be delivered up and cancelled, because, as the complainant alleges, they were executed whilst he was a minor. The notes were given for the board, lodging, washing and instruction of the complainant in the science of medicine. ,
    The answers admit the execution of the notes, but insist the complainant was of full age when he executed them, and that if he was not, he fraudulently represented himself of full age to the defendants.
    The evidence in the cause showed, that at the time the notes were executed, the complainant wanted six months of being twenty-one years old. There was no proof that he represented himself to be twenty-one.
    The circuit court decreed the notes to be delivered up, but entered a decree against the complainant for one hundred and thirty-six dollars, the amount of his hoard, lodging, &c. as ascertained by that court. From this decree the defendants appealed to this court.
    
      G. S. Ferger, for complainant.
    The note in this case is void upon two grounds: 1st. Because an infant cannot by any sort of instrument, bind himself in a sum certain for necessaries. 2d. Because this instrument, although under seal, is made negotiable by the act of 1786, ch. 4, and on that account is void. Upon the first ground, (when it is a bill single, and not negotiable,) the authorities are conflicting, it being said by some that it is absolutely voidr-hy others that it is binding.
    Lord Coke lays it down generally that a single bill for necessaries is binding on an infant. Coke’s Litt. 172, a. The same point was so decided in the case of Russell vs..Lee. 1 Levintz, 86; S. C. 1 Kebb, 382. The case in Cro. Elizabeth, 920, although generally cited as an authority to this point, is not; that was the case of a bond with a penalty, which the court decided tp be void; but they said if it had been a single bill and for.necessaries, it would have been good. Bingham, in his law of infancy, page 89, says that the current of authorities seems to be that the single bill of an infant is good, if executed for the payment of necessaries. The authorities he relies upon, are those above-quoted, and 1 Roll. Abr. 729.
    There is a distinction, and a very obvious one, between the executed and executory contracts of infants. Executed contracts, where the infant’s interest has passed and vested, subject only to an election upon his part when of age, to disaffirm the contract and revest the interest in himself, from their nature are obliged to be voidable and not void. Wheaton vs. East, 5 Yerger’s Reports,-’•1. But when the contract passes no interest, when it is a mere promise or covenant to do or perform an act, the case is wholly different, and whether the latter is void or voidable, will depend altogether upon. the nature and binding efficacy of the instrument.
    Upon general and well settled principles, I contend, that any instrument, whether under seal or not, which binds the infant in a sum certain, although executed for necessaries, is not binding upon him, and consequently does not merge the simple contract, but leaves the party to prove his account for necessaries in the same manner as if no bond had been executed.
    The infant is either bound by the bond when it is executed for necessaries, in which case it is good, or he is not bound. If the replication to a plea of infancy, “that the consideration of the bill single was for necessaries furnished the infant,” be good, judgment must go against the infant for the amount of the bill single: this of course precludes an investigation into the reasonableness of the prices paid for the necessaries, and consequently overturns another well settled principle, that although the infant is liable for necessaries, the jury, (not the infant,) must judge of the reasonableness of the prices given for the necessaries; if then the bill single, promissory note, or stated account of an infant be not void, the law makes him the judge of the prices of the necessaries furnished him; and although he agrees to give double or triple prices, that fact is precluded from being investigated by giving the bill single, and proof that it was executed for necessaries.
    An infant can only contract to pay for boarding, necessary instruction and other necessaries, as much as are reasonaWy worth. Duscomb vs. Tickridge, Allen’s Rep. 94, cited Bingham, 111.
    To bind an infant upon his contract for necessaries, it must appear that the things were actually necessary, of reasonable prices, and suitable to the infant’s degree and estate, considerations which must be left to the jury. Popham’s Rep. 151: Palmer’s Rep. 361: 1 Leonard, 114: Bingham, 87, and note c.
    From these authorities it would seem to be settled, the jury must determine whether the price of the necessaries are reasonable, and to allow the plaintiff only their intrinsic value. If this be the law, how can it be contended that the infant may hind himself to pay a specific sum by bond or note, for necessaries? If, in a suit upon the bond, he cannot examine into the reasonableness of the prices, but only whether the consideration of the bond was necessaries, then the shield or protection of the law intended for his benefit, is taken from him; then the law authorizes him to ruin himself by giving any and every price he pleases for his necessary meat, apparel, &c.; then he is allowed, contrary to the settled rule laid down by the above authorities, to be himself the judge of the price of what is furnished him. But if on the other hand, (in an action upon the bond,) the plaintiff is compelled upon an issue made up, to prove that the necessaries furnished were of reasonable prices, then the binding efficacy of the bond is done away; if this must be proved, the bond, although for necessaries, is void, and does not bind the infant, for if it did bind him when executed for necessaries, this evidence would be inadmissible. The conclusion is then inevitable, that if this court decide that an infant may bind himself in a note or single bill for necessaries, he may contract to pay what price he pleases for them, which is contrary to the settled law for hundreds of years. If, upon the contrary, evidence is admitted to show the prices unreasonable, then the verdict cannot be for the amount of the bill single; and if it cannot be rendered for the amount, no system of logic can prove he is bound by it.
    This point has been expressly decided in Wo cases referred to in Bingham, 89, one reported in Godbolt’s Reports, 219; the other in Cases in Law and Equity, 185. The principle decided is, that an infant cannot bind himself in a sum certain to pay for necessaries. For the same reasons, an account stated by the infant, according to the modern authorities, is not binding upon him; because if it were, he would be bound to pay the prices, reasonable or unreasonable; and therefore it -h^s been held, that it cannot be used as evidence of an admission that necessaries were furnished to that amount. Ingledewvs. Douglass, 3 Com. Law Rep. 233: Bing-ham, 20. And the very reasons given by Bingham why it is void, are applicable to a bill single or promissory note; in fact a promissory note as between the parties is evidence of an account stated. Israel vs. Douglass, 1 H. Blk. 239: Chitty on Bills, 336, new edition. Perkins, sec. 12, 19, says, that a bare agreement to deliver by an infant is void, but actual delivery only is voidable.
    2. In this State, bills single are made negotiable by our act of 17S6, chapter 4. All the above cases and reasoning apply with equal force to a negotiable instrument. But many reasons why a negotiable instrument of an infant should be void, do not apply to promises not negotiable. All the authorities in this country are clear that it is void.
    In England, Mr. Justice Bayley,. in his treatise on Bills, page 19, says, “that an infant cannot make himself responsible for the payment of a bill or note, even when given for necessaries.” And in Williamson vs. Watts, (1 Campbell, 553,) the acceptor of the bill pleaded infancy; replication, that the bill was accepted for necessaries. When the case was opened, Sir James Mansfield said, “this action certainly cannot be maintained; the defendant is allowed to be an infant, and did any one ever hear of an infant being liable .as acceptor of a bill of exchange. As the point of law is so clear, I am strongly inclined to nonsuit the plaintiff.” See Chitty on Bills, lb, note e.
    From the nature of negotiable paper and its incidents, it would seem that an infant is not bound by it. If it is not void, you deprive him of his privileges; for after it is negotiated before due, the amount of the original debt cannot be disputed. 1 Campbell, 552-3: Chitty on Bills, 67, 68, 183. It is therefore . absolutely necessary they should be void to .protect the infant. Mr. Chitty, indeed, says, (page 17,) that as the contract of an infant is only voidable and not void, a promise by him to pay the bill after he attainstwenty-one, and before action brought, renders it. operative against him, and cites 2 Bar. and Gres. 824, and 4 Esp. 187. From this it might be inferred, ' that those • cases decided that an infant’s bill of exchange was merely voidable; but by reference to the authorities cited,. the first -was assumpsit for gdods furnished,- and a promise' to pay after full age, and the second was against the’acceptors of-a’ bill, (of full age,) which bill had been drawn'by an infant.
    In this country, whenever the question has been examined, the courts have determined the negotiable instrument of an infant void, as to him; other parties are bound, because their endorsements or acceptances are new contracts. 10 John. Rep. 33, Swaney vs. Yanherheyden: 1 Southard’s Rep. 100, Fenton vs. White, cited Chilly’s Bills, 16, in note: 3 New Hampshire Rep. 348. See also 2 Kent, 192: 9 Mass. Rep. 101.
    If the note be void, this court has jurisdiction to order it to be delivered up, whether a defence can be made at law or not, and whether the instrument appears from its face to be void or not. Maddox, 226-7-8: Maize vs. Gamer, Martin and Yerger’s Rep. 383, and the authorities there cited by Judge Catron: Cooper and Cross-waite vs. Johnston, 2 Yerger’s Rep. 524, and the reasoning of Judge Whyte in his opinion: 1 Johnson’s Chan-eery Reports, 517.
    But whether void or voidable, negotiable instruments which may be avoided, will be ordered to be delivered up, because a vexatious use may be made of them. 1 Maddox, 228: 1 John. Ch. Rep. 517: 1 Russell, 412: 2 Con. Ch. Rep. 469: 2 Con. Ch. Rép. 527: Ambler, 66: Chitty on Bills, 110. '
    
      J. Rucks, for defendant.
    The complainant cannot plead his infancy in this court on account of his fraud in concealing his age, even if he was an infant when he gave the notes. 9 Mod. R. 38: Bing, on Inf. 113: 3 Bac. 604: 2 Eq. Cas. Ab. 489.
    Where the contract is only voidable, equity will entertain a bill to enjoin it, but not if the contract is absolutely void, and the infant has been guilty of fraud. There are cases against infants in which equity holds them bound, though they might get clear at law. But no case can be found where equity has relieved an infant complainant guilty of fraud.
    A court of equity has jurisdiction to order a bond or other instrument of writing to be delivered up, whether void or voidable, but the exercise of this jurisdiction rests in the sound discretion of the court. See Hamilton vs. Cummings, (1 J. C. R. 517,) where the cases are reviewed. *■
    An infant of the age of discretion is no more to be relieved in equity, when guilty of fraud, than a man of full age, for they are both equally responsible for fraud at law and in equity. Zouchvs. Parsons, 3 Bur. 1802.
    In the argument of this case, much stress is laid upon the distinction between void and voidable instruments. It is insisted that a bond by an infant for meat, drink, necessary instruction, &c. is absolutely void. There is some confusion in the books upon this subject, on account of the indefinite use of the word “void. ” Bingham, fn his excellent treatise upon infancy, has contributed very much to clear up this contusion. He maintains, page 14, it is better for the infant that the contract should be only voidable, that he may confirm it or not when he comes of age. He proves, page 16, it is not absolutely void, for then non est facfum might be pleaded to it, whereas infancy must be specially pleaded, and cannot be given in evidence under non est factum.
    
    He maintains, upon a critical view of all the cases, that the acts and deeds of an infant are only voidable, except in the specific cases of warrant of attorney, feoffment with livery by attorney, account stated, feoffment to guardian, will of lands, and release of debts by infant executor.
    A bond or bill single by an infant for necessaries is neither void nor voidable, but debt will lie on such an obligation. Bing. Inf. 89: 1 Coke Lit. sec. 259, 172 a. But if taken with a penalty it was held to be void prior to 4 Ann, ch. 16, sec. 13. Since that act a penalty would make no difference.
    Russel vs. Lee, 1 Levintz 86, is precisely upon this point. Debt was brought upon a bill single; defendant pleaded that the bill was made by him when within age; plaintiff replied it was for necessary victuals and clothes delivered to him and suitable to his quality; defendant demurred; and the court upon argument and authorities gave judgment for the plaintiff. In Ay]iff vs. Arcade, Cro. Eliz. 920, the plaintiff had paid money for the necessary meat and drink of an infant, and took his bond in double the sum for the payment thereof,, “and whether it was good or voidable was the question.” The court held it void. But if it had been for the very sum laid out for the infant, it had been otherwise. 'See 8 East, 330, note d.
    If the bond of an infant was absolutely void, it would form no consideration for a promise made to him. Yet infants recover upon such promises upon the ground that. such bonds are only voidable at the election of the infant, and not void. Ring. Ini. 25-6.
    If an infant should purchase goods and give his bill single for the price, the vendor cannot maintain an action to recover them back, which he could do if the bill single was absolutely void, and which he may do if the infant evades the payment of it upon the plea of infancy. Badger vs. Phinney, 15 Mass. Rep. 359.
    The promissory note or bill of exchange of an infant, is only voidable. Bing. Inf. 26, 89, note s: 1 Term. R. 40: Chit. Bills, 21, 22, notes: Kyd on Bills, 29: 3 Taun. 307.
    It was decided by this court, at the last term, in Whea-ton vs. East, that the deed of an infant for land was confirmed by his acquiescence and parol admissions after he came of age. That is, that he had disabled himself to plead or set up his infancy.
    So in this case, if complainant was under age when he executed the notes, he affirmed the contract by continuing to board and study for a year and a half after he came of age. 3 Bac. 611-12: Bing. Inf. 65 to 71: so are all the authorities: Cro. Jac. 320: 1 Ver. 132: 2 Ver. 224-5.
   Green, J.

delivered the opinion of' the court.

This bill is filed by complainant, praying that two notes under seal executed by him to the defendants, shall be given up to him because they were executed when he was an infant. The defendants resist the prayer of complainant’s bill, alleging, 1. That complainant was not in fact an infant when he executed the notes. 2. That complainant was guilty of a fraud in representing himself as an infant, and therefore not entitled to relief. 3. That the notes are voidable only, and not void. 4. That a court of equity has no jurisdiction to order a note executed by an infant to be delivered up.

1. As to the first question there can be no doubt. Both . ? the parents prove that he was bom the 4th July, 1807. The notes bear date 14th September, 1827. The bill however admits that they were antedated, and the answer expressly alleges that they were executed about four months after M’Minn set in to study with defendants, and were antedated to the time when he set in, so that they were executed four months after the 14th of September, 1827, which would fix the time of their execution the 14th of January, 1828, nearly six months before the complainant became of age. Johnson’s evidence is entitled to no weight. He left Richmond’s the 20th of July, 1828, and says it was but a short time before, that complainant showed him the writings between himself and the Richmonds, and told him he had executed his notes. This witness is too indefinite as to the time complainant showed him the writings, for any reliance to be had upon his evidence; add to which, he does not state how long the writings were executed before they were shown him by complainant. Taking therefore the time of his birth as being proved by the complainant’s parents, the admissions in the defendant’s answer «prove that the notes were executed while the complainant was an infant.

2. The allegation that the complainant represented himself to be of full age at the time the notes were executed, is wholly unsupported by the proof; so that the question of fraud would not have been raised, even had the defendant’s answer sufficiently charged it.

3. We next come to consider whether these notes are absolutely void, or whether they are only voidable.

In determining this question, it is agreed on all hands that the rule ought to be adopted which would be most beneficial to infants. This was the principle upon which this court proceeded in the case of Wheaton vs. East. 5 Yerg. Rep. 1. In that case the court adopted this general rule, “That when it can pronounce the contract to be to the infant’s prejudice, it is void, and when to his benefit, as for necessaries, it is good; and when the contract is of an uncertain nature, as to benefit or prejudice, it is voidable only, at the election of the infant.” Bills single and bonds under seal are made negotiable by the act of 1786, ch. 4. The maker of a negotiable instrument is liable to an action at the suit of an endorsee, in which the amount of the original debt cannot be disputed. Chitty on Bills, 16, 17, notes, and 67, 68, 183: 1 Campbell, 553, notes. Now, in voidable contracts of an infant, he may elect when of full age to affirm or dis-affirm them, as may seem most for his benefit. And were bills single not negotiable, so that upon the plea of infancy the consideration could be enquired into, and if for necessaries, the reasonableness of the price could be examined, and a judgment rendered for such amount as should seem reasonable, then it might well be insisted that when executed by infants they are voidable only. But by a rule of law in reference to negotiable instruments when in the hands of" an endorsee, the consideration cannot be gone into, and consequently, unless they are held to be absolutely void when executed by an infant, he would constantly be liable to be imposed upon by unprincipled ahd designing men, who would procure his notes and immediately negotiate them.

Let us apply to this case the principle adopted in Wheaton against East, “that when the court can pronounce a contract to be to the infant’s prejudice, it is void,” and it will be seen that this must be so considered. An infant can scarcely ever be benefited by the execution of his note or bill single; but from the nature of the instrument and its legal incidents, and the habits of the country, he will almost universally be prejudiced thereby, unless the courts hold such notes or bills single void.

Following, therefore, the current of authorities upon this subject, we adjudge a negotiable instrument executed by an infant void. 1 Campb. 553, note: 10 John. 33: 9 Mass. Rep. 100: 3 N. Hamp. Rep. 348.

These bills single being void, this court has jurisdiction to order them to be delivered up. 1 Maddox 226-7-8: Mar. & Yerg. 383: 2 Yerg. 524: 1 Jh. Ch. Rep. 517.

Although the notes are void, the complainant is liable to pay the defendants a reasonable price for the board, lodging and instruction he obtained from them, and therefore the court below rightly adjudged such reasonable compensation to be paid by him. Let the decree be affirmed, and the costs to be paid as directed in that decree.

Decree affirmed. 
      
       The court afterwards remanded the cause for an issue to be made up 4o try what was reasonably due to defendant.
     