
    Jacob Counts, vs. Jacob Bates, administrator of Michael Kibler, (deceased.)
    
    
      Jin infant purchased a horse, for which he gave promissory ■ notes; Held that the infants administrator might plead the infancy of his intestate, and that his selling the horse, as part of his intestate’s estate, was no confirmation of the purchase, so as to render the administrator liable for the value.
    
    This wras an action instituted on two promissory notes, which the plaintiff ailed ged in his declaration were given by the intestate, Michael Kibler: the declaration also contained two counts against the administrator. The first count stated, “ that the said Jacob Bates, administrator of all and singular the goods and chattels and credits which were of Michael Kibler, deceased, heretofore, to wit, on the first day of August, in the year of our Lord one thousand eight hundred and twenty-one, at Newberry court-house, in the district and state aforesaid, was indebted to the said Jacob Counts in the sum of three hundred dollars, for so much money by the said Jacob Bates, administrator as aforesaid, had and received to and for the use of the-said Jacob Counts, and being so indebted, he the said Jacob BaUs, administrator as aforesaid, in consideration thereof, af-terwards, to wit, on the day and year aforesaid, at the place aforesaid, undertook and then and there faithfully promised the said Jacob Counts, to pay him the said last mentioned sum of money, whenever he the said Jacob Bates should be thereunto afterwards requested:” and the other count was as follows, « and for that whereas also, heretofore, to wit, on the first day of August, in the yeat of our Lord one thousand eighf hundred and twenty-one, at Newberry court-house, in the district and state aforesaid, the said' Jacob Bates, administrator as aforesaid, had sold and disposed of, to and for the use of the estate of the said Michael, one stud horse, the ; roper goods and chattels of the said Jacob Counts, in consideration thereof the said Jacob Bates, administrator as aforesaid, afterwards, to wit, on the day and year aforesaid, at the place aforesaid, undertook and then and there faithfully promised the said Jacob Conntz, that he the said Jacob Bates, administrator as aforesaid, would well and truly pay to the said Jacob Counts, so much money as the said stud horse was reasonably worth, whenever he should be thereunto afterwards required; and the said Jacob Counts avers that the said stud horse was reasonably worth the sum of three hundred and forty dollars; whereof the said Jacob Bates, administrator as aforesaid, afterwards, to wit, on the day and year aforesaid, at the place aforesaid, had notice.”
    To the declaration there were two pleas: the general is* sue, and the plea of infancy of the intestate. To the latter plea the plaintiff replied “ that the two promissory notes in the first and second counts of his declaration mentioned, were drawn and given by the said Michael for a certain stud horse, by the said Michael purchased of and from the said Jacob Counts, which said stud horse, after the death oí* the said Michael, came into possession of the said Jacob Bates, administrator as aforesaid, and was by him, as administrator as aforesaid, inventoried, ap» praised and sold, for a large sum of money, to wit, for the sum of three hundred dollars, as part of the estate of the said Michael Kibler, deceased, to wit, at Newberry court house; and this the said Jacob Counts is ready to verify, whereupon he prays judgment and his damages, by him sustained, on occasion of the not performing of the said several promises and undertakings, to be adjudged to him. To this replication there was a demurrer and joinder in demurrer. The court overruled the demurrer, and the jury found a verdict for the plaintifi’, from which decision of the presiding judge and the verdict of the jury, the defendant appealed, and moved the constitutional court to reverse tbe decision of tlie presiding judge, in overruling the de». murrer, and for a nonsuit, on the following grounds, to wit:
    1 st. Because the demurrer should have been sustained, and judgment be given on it for the defendant, in as much as the replication to the plea of infancy of the intestate did not answer or deny it, as it should have done,, by stating that the goods or property for which the contract was made were necessaries, or that the intestate was not an infant, or that he confirmed the contract when he came of age; neither of which was replied.
    2d. Because an infant cannot make a promissory note; neither can it be recovered against him or his administrator, when the plea of infancy is set up; and if even tbe demurrer were over» ruled, a nonsuit should have been granted on this ground.
    3rd. Because the presiding judge decided that the administrator of Jacob Bates, the defendant, confirmed the contract of the intestate, in not tendering back and delivering the property to the plaintiff, from whom the intestate, in his lifetime, purchased, whereas the administrator had no right or power to do so, and in so doing would have acted contrary to law.
    4th. Because the presiding judge decided contrary to law in overruling the demurrer and in sustaining the replication, and in precluding the defendant from the benefit of the jilea of infancy, to which he was entitled: the fact of the intestate’s being an infant was ineontrovertibly established.
   The opinion of the court was delivered by

¿Mr. Justice Colcoclc.

It is unnecessary in this case to follow the counsel through the wide range which they have taken in their pleadings and their argument, for it is obvious to the court that the action can not be maintained under any state of pleadings; and it is their duty to put an end to tlje litigation of the parties. From the evidence it is clear that the notes were given by the defendant’s intestate when Under age. Two questions then arise:

1st. Can the administrator plead infancy, or take advantage Of it on the general issue?

2nd. Was the sale of the horse, by the administrator, a confirmation of the purchase made by the infant?

The protection which the law intends to afford infants, Would be but partial, if their deaths would secure to those who might impose on them all their unlawful gains. The object of .the law, as I conceive, is not only to preserve their estates from artful and designing men, but also their morals and health. It is however not a matter of doubt that an executor or administrator may plead the infancy of the testator or intestate. It is the daily practice of our courts, and well supported by authority. Strange, 1101; Selwyn, 142.

But in such a case as this (assumpsit) it might be given in evidence under the general issue, and the contract be avoided in that way; nay some go so far as to say that the promise of an infant is void, and assign that as a reason why it may be given in evidence under the general issue. Salk. 279; 4 Dallas, 130; 3 Bacon, 610; Tit. infancy and age, I. 7; Selwyn, 137; In, Cro. Eliz. 126, it is said the promise of an executor to pay the debt of his infant testator is nudum pactum, for the infants promise being void, there i's no consideration for that of the executor.

It is then clear that the administrator might take advantage of the infancy of his intestate, even if the declaration were amended and the pleadings properly made up. The second question admits of less doubt: the infant alone can confirm his contract. The law, in order effectually to protect the rights of infants, has declared that when one sells to an infant any article of property, -and takes a note for the payment of the money, the property delivered is to be considered as a gift to the infant, in 3 Bacon (title infancy and age. I. 3) p. G04-, it is said, “ if one deliver goods to an infant upon contract, &c. knowing him to be an infant, he shall not be chargeable in tro-ver and conversion or any other action for them; for the infant is not capable of any contract, but for necessaries; therefore such delivery is a gift to the infant,” and this appears to be an indispensably necessary part of the system of protection which the law intends for the infant; for if men of loóse principles knew that on a refusal to pay on the part of the infant, they 'could obtain a re-dclivcry of the article sold, the risque in dealing with infants would be so much diminished that they would not hesitate to incur it. The administrator found this property, the horse, among the property of deceased; he. was bound to-consider it as a part of his estate; the law declares it was a part of his estate; he could act no otherwise than appraise and-sell st.. If any subsequent conduct of his has rendered him liable, as. for a devastavet, let him- be pursued by those who are interested, in a proper manner. The motion- for nonsuit is granted.

J. J. Caldioell, for motion.

O’JTcal, and Johnson, contra.

Gantt, Richardson, and Johnson, Justices, concurred.  