
    Batchelor Hussey and Another versus James Jewett, Executor.
    The infancy of his testator is a good plea by an executor to an action on a promissory note made by the testator.
    Assumpsit on a promissory note made by James Jewett, Jun., the defendant’s testator. The defendant pleads in bar that the testator was an infant at the time when he made the note. The plaintiffs demur, and the defendant joins in demurrer.
    
      Whitman,
    
    for the plaintiffs, contended that infancy being a personal privilege, which the infant might waive at his * pleasure, it was not competent to his executor to plead it. None but the infant himself, or privies in blood, can avail themselves of this defence. 
    
    
      Longfellow
    
    foi the defendant. 
    
    
      
       3 Bac. Air. Tit. Infancy, I. 4, 6.
    
    
      
      
        Lawes’s Pleadings in Assumpsit, 790, 575.—2 Str. 1101.
    
   Per Curiam.

The promissory note of an infant is by one who is under a legal disability to contract, with the single exception of a supply for necessaries; and, in that case, he is not concluded by a stipulation respecting prices; which seems to be the reason that a special promise and a bond in a penalty, even for necessaries, are alike void. And a void promise is not to be enforced against the. executor of a supposed party, any more than against the party himself. The evidence is annulled by the principle of law, that an infant is incapable of establishing such a contract against himself while under age. He may conclude himself by recognizing the consideration and promise after he comes of age; for this is a con tract and promise made then, the words of which are understood by the reference to the formal promise made in his infancy, and the renewal of it. The plea in bar is adjudged good. 
      
      
         [In the case of Whiting & Al. vs. Dutch & Al., (14 Mass. Rep. 457,) it was held that a promissory note made by an infant is not void, but only voidable. And see Bing. Inf. 17, Com. Contracts, 2d ed. 563. — Ford vs. Phillips, I Pick 202. — Avoid contract cannot be confirmed. — Ed.]
     