
    Farrington Oliver and Ebenezer Clap versus Lewis Houdlet.
    Of the contracts of infants, and when they are voidable by the infants or by their guardians.
    Trover for certain cattle. At the trial upon the general issue, at the last September term, before Thatcher, J., the defendant admitted that he took the cattle, by virtue of a writ of execution, as the property of one James N. Lithgow. It was admitted by the plaintiffs, that the said Lithgow owned the cattle ; and it was proved by him, that the same were afterwards conveyed to one Thomas Butler, who sold them fairly to the plaintiffs. It was in evidence, that the plaintiff, Clap, was, at that time and until the trial, the legal guardian of <A. J. S. G. Lithgow, a minor ; and the said minor, being called as a witness for the plaintiffs, testified, that, immediately after the plaintiffs purchased the cattle as aforesaid, they were put into his possession, and he considered them as his own ; that the plaintiff, Oliver, was then indebted to him, the said minor, and agreed that * his part of said cattle should go in part payment of the said debt; that the plaintiff, Clap, agreed that he, the said minor, might take his, Clap’s, part of the cattle, and account to him for their value when he should arrive at the age of twenty-one years ; but, in the disposition of them, he was to consult his said guardian ; and that he, the said minor, considered himself as holding the cattle, when they were taken by the defendant. The said Lithgow, the minor, further testified, that he afterwards did dispose of a part of the said cattle, having first obtained the consent of his said guardian so to do. But there was no evidence that the said guardian was consenting to any arrangement, made between the said minor and the plaintiff, Oliver, that the debt of the latter should be cancelled by the cattle going in part payment as aforesaid.
    Upon these facts the judge instructed the jury, that the plaintiffs in his opinion, had such a property in the cattle, at the time of the -taking of them by the defendant, as would authorize them to maintain this action ; and, a verdict being returned for the plaintiffs, the defendant’s counsel filed exceptions to the opinion and directions of the judge, and moved for a new trial on that ground.
    
      Orr, of counsel for the plaintiffs,
    being called on by the Court to support the verdict, contended that a guardian has a special interest in all the property, real and personal, of his ward; and the possession of it is by operation of law in the guardian. It is on this ground, that he is held to give bond to account for it, and his letter of guardianship authorizes him to take and keep possession of it, until the ward’s majority. This special property and right of possession are sufficient to maintain the present action, even if the supposed sale by the plaintiffs to the minor was valid. But the case does not find a sale and delivery by the guardians to the minor. The nature of their interest did not admit of it. The object of the transaction was, to advance the interest of the minor, by giving him the use of the cattle, and to retain the general * property in themselves. He could give no security for the payment, and no actual payment was made. It will not be pretended, that they were a mere gratuity to him. The most that can be inferred from the transaction is, a personal trust reposed in the ward, subject to be withdrawn at pleasure.
    
      Mellen, for the defendant.
   Wilde, J.,

delivered the opinion of the Court. This case tu’.ns on a question of property, depending upon two sales of cattle, made by the plaintiff to one A. J. S. G. Lithgow. It has been contended, that these sales were void ab initio, the said Lithgow being a minor, not capable by law of making a valid contract.

Doubtless an act merely void may be treated as a nullity by either party, and even by a stranger. Some acts of infants are of this description ; and it has been said, that all such as are apparently prejudicial to his interests are to be so considered. Thus, a grant, surrender, or lease, by an infant, without reservation of rent, have been adjudged void ; such acts being apparently to the infant’s prejudice. But in the case of Zouch vs. Parsons, they were held to be voidable only ; and for reasons which seem very cogent and satisfactory.

It would be more correct, therefore, to say, that those acts of an infant are void which not only apparently, but necessarily, operate to his prejudice. The benefit of the infant is the great point to be regarded ; the object of the law being to protect his imbecility and indiscretion from injury, through his own imprudence, or by the craft of others.

The general rule is, that infancy is a personal privilege, of which no one can take advantage but the infant himself; and, therefore, that his contracts, although voidable by him, shall bind the person of full age. This rule seems to require that all contracts of infants should be held voidable, rather than void. But, however this may be, all the books agree that those which are beneficial, or have a * semblance of benefit, to the infant, are only voidable.

Of this character are all sales made by persons of full age to infants. These have at least the semblance of benefit to the vendees. No case can be found in which such a sale has been held void, or voidable by the vendor, on the ground of the vendee’s infancy. Even a feme covert, whose conveyances and other contracts are clearly void, may purchase an estate without the consent of her husband ; and the conveyance will be good, until avoided by him during coverture, or by her after his death.

Most clearly, then, the sales under consideration are not void.

But it has been further argued, that these sales, if voidable, may be avoided by the plaintiff, Clap, by virtue of his authority as guardian of the minor. No case has been cited in support of this position ; and we know of no position of law by which it can be maintained. The authority and interest of a guardian extend only to such things as may be for the benefit and advantage of the ward. If an infant makes a contract from which he derives a benefit, it cannot be avoided by his guardian ; for this, being injurious to the infant, would be a violation of the guardian’s duty. The rule of the civil law is, that pupils may better their condition, but not impair it, without the authority of their tutors.

But, should it be admitted, that a guardian may avoid the contracts of his ward, made without his consent; it will hardly be contended, that he can be permitted to do it, when the contract, at the time of making it, was confirmed by his assent. Now one of the sales under consideration was made by Clap, the guardian, and his assent is manifest from the act itself. There is no positive proof of Clap's assent to the sale by Oliver; but there is abundant evidence from which it may be inferred, and which ought to have been submitted to the jury, if such assent be material to the issue.

* As the direction to the jury was not conformable to these principles, the verdict must be set aside, and a

Jf no trial granted.

[Reed vs. Batchelder, 1 Metcalf, Rep. 559, and cases cited. — Ed.] 
      
       3 Burr. 1794.
     
      
       2 Black. Com. 293. — Co. Lit. 3. a.
      
     
      
       Bac. Abr. Tit. Guardian, G.— Co. Lit. 17. b.; 89.
     
      
      
        Instit. tit. De Auctor. Tut.
      
     