
    Young & Co. v. Bell & Wray.
    Infancy cannot te given in evidence upon the plea of nil debet to an action of debt on a promissory note in Virginia. The promissory note of an infant is voidable, but not void.
    Debt on a promissory note. The defendant pleaded nil debet, and offered evidence of infancy in support of the plea.
    
      Mr. Youngs, for the plaintiff.
    There is a difference between contraéis void and voidable. This note was' not void, but voidable. If infancy be pleaded, the plaintiff may reply that it was given for necessaries. The plaintiff ought to have notice of the defence, that he may be prepared to rebut it by evidence of necessaries furnished, or that the defendant was of age, or that after full age, he acknowledged the debt. If not pleaded, notice ought to be given, as in cases of set-off. It is not a defence of which the plaintiff can have knowledge, as in the case of limitations, which the Court has decided cannot be given in evidence on nil debet. The Act of Assembly, (Revised Code, 36, § 3,) has made a note a substantive cause of action of debt.
    
      Mr. F. L. Lee and Mr. E. T. Lee, contra.
    
    The'plaintiff must prove his debt. Whatever shows there is not a debt is good evidence on this plea. A promise of an infant is absolutely void. A contract must imply an assent, but he cannot assent. Nil debet is a good plea where there is no debt. 3 Coni. Dig.. 165 ; 5 Com. Dig. 240. Infancy may be given in evidence on non assumpsit, {Darby v. Boucher, 1 Salk. 279,) although it is otherwise in case of a deed. Zouch v. Parsons, 3 Burr. 1805; Whelp dale's case, 5 Co. 119. A promise of an infant is as void as a bond of a feme covert. It is clear that on non assumpsit it may be given in evidence. Gilb. Law of Ev. 164, (old edition.) There is a difference between non est factum and non assumpsit. On the latter plea it may be given in evidence. Solemn contracts, which require delivery, are voidable only; but- simple contracts are void. If plaintiff can show that the note was given for necessaries, he may do it on nil debet. The general principle is, that infancy may be given in evidence on the general issue. 1 Salk. 278; Buffer, 152; Gilb. Com'. Pleas. 64, 65; Loft’s Gilb. L. E.'368, 369; 4 Bac. Ab. 61; 1 Sid. 51; 12 Vin. 76.
    
      Mr.' Noblet Herbad, in reply.’
    In cases of usury and coverture, the instrument is absolutely void. But in case of infancy, it is only voidable. ■ There is a difference between a note and an account. A note reduces the matter to a certainty, but an account does not. The Act of Virginia, also, which gives an action of debt upon a promissory note, makes a difference, and puts it on the ground of a specialty. The authorities, which say it may be given in evidence on the general issue, mean in actions of assump-sit, not in actions of debt. See Trueman v. Hurst, 1 T. R. 40; Crantz v. Gill, 2 Esp. R. 472; Clare v. E. of Bedford, 1 Sir. 168; Vin. 536; 2 Str. 1101.
   The Court,

having taken time to consider, decided, {nem. con.) that infancy cannot be given in evidence, on the plea of nil debet to an action of debt on a promissory note, being of opinion that • it is not void, but voidable. See Hyer v. Hyatt, at Washington, December, 1827.  