Patchin v. Cromach

13 Vt. 330 | Vt. | 1841

The opinion of the court was delivered by

Williams, Ch. J.

The defendant pleads in abatement of the plaintiff’s writ that the person who was recognzied for cost, in pursuance of the directions of the statute, was an infant, and could not be holden on his recognizance. The argument has rested, mainly, on the ground that this was one of those contracts of an infant which are void. I am not prepared to say that it is competent for the defendant to. raise this question. The statute requires that, on the issuing of a writ of attachment, sufficient security shall be given to the adverse party, by way of recognizance, to the satisfaction of the authority signing the writ, that the plaintiff shall prosecute to effect, &c. If the authority misjudges as to the sufficiency of the security, the court, to whom the writ is returnable, may order further and sufficient bail to secure the defendant. If the authority signing should take security to his satisfaction, of a person apparently capable of contracting, it would be attended with some inconvenience if the capacity of the person contracting could be tried in the way now attempted, when the inquiry might involve questions difficult of solution by any proof in the power of the persons contending. Waiving this consideration, however, there are other reasons sufficient, in our minds, to determine the question before us.

It is not necessary, in this case, to inquire whether any contracts of an infant are so far void, as not to be binding on either party, and incapable of being ratified by the infant, when he arrives at full age. The most convenient rule, on this subject, would be to consider certain contracts as binding on an infant, unless he avoids them after coming of full age, and others as not binding unless he affirms them. Whether this distinction can be established, is not the inquiry before us, nor have we turned our attention to it, either to investigate or determine it.

We believe that the recognizance, in this case, cannot be considered as void, and would not be so regarded, where the distinction between the contracts of an infant which are void, and which are voidable, is rigidly adhered to. When, from the nature of the contract, it is not to be believed that it would have been entered into, if the want of a power to contract was apparent and evident, it has been considered that the contract was voidable only. Thus it is said by Perkins, that ‘ feofments or deeds conveying land with livery of e seisin in person, by an infant, are not void, but voidable, ‘ for it is to be presumed, in favor of such solemnity, that ‘ the witnesses present would have prevented it if they had ‘ seen his nonage.’ In Mary Partington’s case, 10 Coke, 43, it was said that if an infant accknowledge a statute or recognizance, it is not void, but voidable by audita querela during his minority, because the judge, in case of an infant, may know his age, by inspection. This inspection, it appears, was personal examination and by proof. Cro. Jac. 230. Yelv. 88.

For the same reason, a statute merchant, or statute staple, is not adjudged void, but voidable. In the case of Markham v. Turner, Yelv. 155, an infant was bail and was sued on his recognizance, and judgment rendered against him, and he was put to his audita querela, because he could not have pleaded his infancy in the suit on the recognizance. I am not prepared to admit that, in a suit on such recognizance, the defendant could not avail himself of infancy in defence, or that it would be necessary to have recourse to an audita querela, particularly as the trial of infancy was by proof, as well as by inspection. This principle, however, is clearly deducible from the cases, that a recognizance, or debt of record, acknowledged by an infant in court, or before a magistrate, is, in no case, to be adjudged void, but voidable only, and this destroys the foundation upon which the argument in favor of the plea in abatement rests.

The recognizance taken in this case, as security to the defendant for the prosecution of the writ, having been satisfactory to the authority signing it, is not void, though the person recognized may been an infant. The judgment of the county court is therefore affirmed.