16 S.C.L. 464
S.C.
1824

The opinion of the court was delivered by

¿Mr. Justice Colcoclc.

It is unnеcessary in this case to follow the counsel through the wide rаnge which they have taken in their pleadings and their argument, for it is оbvious to the court that the action can not be maintainеd 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 advantagе Of it on the general issue?

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

*467The protection which the law intends to afford infants, Would be but pаrtial, if their deaths ‍‌‌‌‌​​​‌‌​‌‌​​‌​‌​‌‌‌​‌​​‌‌​‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‍would secure to those who might impose on thеm 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 аn executor or administrator may plead the infancy of the testator or intestate. It is the daily practice of our сourts, 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 contrаct be avoided in that way; nay some go so far as to say that the рromise of an infant is void, and assign that as a reason why it may be givеn 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 paсtum, ‍‌‌‌‌​​​‌‌​‌‌​​‌​‌​‌‌‌​‌​​‌‌​‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‍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 dеclaration were amended and the pleadings proрerly made up. The second question admits of less doubt: the infant alone can confirm his contract. The law, in order effeсtually 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 propеrty delivered is to be considered as a gift to the infant, in 3 Bacon (title infanсy and age. I. 3) p. G04-, it is said, “ ‍‌‌‌‌​​​‌‌​‌‌​​‌​‌​‌‌‌​‌​​‌‌​‌​​‌‌‌​‌​‌‌​‌‌​‌​​​‌‍if one deliver goods to an infant upon сontract, &c. knowing him to be an infant, he shall not be chargeable in tro-ver and conversion or any other action for thеm; for the infant is not capable of any contract, but for necessaries; therefore such delivery is a gift to the infant,” and this аppears to be an indispensably necessary part оf the system of protection which the law intends for the infant; for if men of loóse principles knew that on a refusal to pay оn the part of the infant, they 'could obtain a re-dclivcry of thе article sold, the risque in dealing *468with infants would be so much diminished that they would not hesitate to incur it. The administrator found this property, the hоrse, 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 hаs 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.