1902 Encyclopedia > Infant


INFANT, in law, is a person under full age, and there-fore subject to certain disabilities not affecting persons who have attained full age. The period of full age varies widely in different systems, as do also the disabilities attaching to non-age. In Roman law, the age of puberty, fixed at fourteen for males and twelve for females, was recognized as a dividing line. Under that age a child is under the guardianship of a tutor, but several degrees of infancy are recognized. The first is absolute infancy in the literal sense—speechlessness ; after that, until the age of seven, a child is infantix proximus; and from the eighth year to puberty he is pubertati proximus. An infant in the last stage could, with the assent of his tutor, act so as to bind himself by stipulations ; in the earlier stages he could not, although binding stipulations could be made to him in the second stage. After puberty, until the age of twenty-five years, a modified infancy was recognized, during which the minor's acts were not void altogether, but voidable, and a curator was appointed to manage his affairs. The difference between the tutor and the curator in Roman law was marked by the saying that the former was appointed for the care of the person, the latter for the estate of the pupil. These principles of course apply only to children who are sui juris. The patria potestas, so long as it lasts, gives to the father the complete control of the son's actions ; and tutorship and curatorship were devices for protecting those who were free from the potestas, but unable by reason of infancy to control their own affairs. The right of the father to appoint tutors to his children by will (testamentarii) was recognized by the Twelve Tables, as was also the tutorship of the agnati (or legal as distinct from natural relations) in default of such an appointment. Tutors who held office in virtue of a general law were called legitimi. Besides and in default of these, tutors dativi were appointed by the magistrates. These terms are still used in much the same sense in modern systems founded on the Roman law, as may be seen in the case of Scotland, noticed below.

By the law of England full age is twenty-one, and all minors alike are subject to incapacities. The period of twenty-one years is regarded as complete at the beginning of the day before the birthday : for example, an infant born on the first day of January attains his majority at the first moment of the 31st of December. The incapacity of an infant is designed of course for his own protection, and its general effect is to prevent him from binding him-self absolutely by obligations. In the matter of contracts, the statement has generally passed current that an infant's contracts, except when they are binding for special reasons, are either void or voidable, i.e., null, ab initio, or capable of being nullified by the infant at his choice. Contracts, for example, which cannot be beneficial to the infant are said to be absolutely void. A bond with a penalty is for this reason declared to be void. On the other hand, it is alleged by the more recent text-writers that the words void and voidable have not been carefully distinguished, and that a contract is often described as void when it is only meant that it is not binding. On this theory all the con-tracts of an infant might be described as voidable at his option except those few which are absolutely valid. On his voidable contracts an infant may sue if he chooses to do so, but may not be sued. Of the contracts of an infant which are binding ab initio, the most important are those re-lating to " necessaries." The word is used in an extended signification to cover " articles fit to maintain the person in the particular state, degree, and station in life in which he is." Whether a particular thing is necessary or not is a question of fact to be decided by a jury, but it is for the judge to say whether it is prima facie of a descrip-tion such that it may be a necessary. It has been ruled by judges, without consulting the jury, that the follow-ing articles were not necessary:—expensive dinners sup-plied to an undergraduate in his private rooms; a pair of solitaire studs costing £25, and a goblet costing £15, for a baronet's son ; a chronometer worth £68, for a lieutenant in the navy ; ornaments to the value of £137. On the other hand, an undergraduate has been allowed a gold watch as a necessary; and liveries for an officer's servant, money paid to release an infant from ejectment or distress, and necessaries for an infant's wife have all been held to be necessaries of an infant. An object, in itself of a character to be pronounced a necessary, may in particular cases be declared not necessary, e.g., if the infant is already supplied with things of the kind. A sealskin waistcoat may be a necessary to an infant of good fortune, but not if he has half a dozen such garments in his possession already. The person who supplies goods prima facie necessary to an infant must, it would seem, take the risk of their turning out to be unnecessary. An infant fraudu-lently passing himself off as of full age and contracting on that footing will be held bound in equity. The protection of infants extends sometimes to transactions completed after full age : the relief of heirs who have been induced to barter away their expectations is an example. " Catch-ing bargains," as they are called, throw on the persons claiming the benefit of them the burden of proving their substantial righteousness ; and, although the youth of the party charged is not an essential point, it is generally one of the facts relied on as showing undue influence.

At common law a bargain made by an infant might be ratified by him after full age, and would then become in all respects binding. Lord Tenterden's Act required the ratification to be in writing. But now by the Infants Belief Act, 1874, "all contracts entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for neces-saries), and all accounts stated, shall be absolutely void," and " no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new con-sideration for such promise or ratification after full age." It has been held in a recent case that this action applies to promises of marriage, so that where an infant had promised marriage, and after attaining full age continued to recognize the promise, no action arose on the breach. But an actual contract of marriage may be lawfully made by persons under age. Marriageable age is fourteen in males and twelve in females. So, generally, an infant may bind himself by contract of apprenticeship or service. Since the passing of the Wills Act, an infant is unable to make a will. Infancy is in general a disqualification for public offices and professions, e.g., to be a member of parlia-ment or an elector, a mayor or burgess, a priest or deacon, a barrister or solicitor, &c.

The custody of an infant belongs in the first place, and against all other persons, to the father, who is said to be "the guardian of his children by nature and nurture ;" and the father may by deed or will dispose of the custody or tuition of his children until the age of twenty-one. If the father is dead, and has appointed no testamentary guardian, the mother is recognized as " guardian by nature an d nurture." But the children must be brought up in the father's religion, even when he has given no directions on the subject; and it appears that no agreement between husband and wife to the contrary effect will be sustained. When, however, the father has in his lifetime suffered the children to be educated in their mother's religion, he may be held to have waived his rights. The Court of Chancery is unwilling to embarrass itself by departing from the strict rule, and an instance is recorded of a child which had been educated from eight to fifteen in the tenets of the Plymouth Brethren being ordered by the court to be educated in the religion of the Church of England. The right of the father to the custody of the child will be enforced, except where he has been guilty of gross immorality, by writ of habeas corpus, as long as a child is within the age of nurture, which for males at least may be taken to be fourteen years. The infant then acquires a right of election. In two cases a boy over fourteen but under sixteen has been permitted by the court to choose, when the father had sued for the custody under a habeas corpus. In the case of female infants, the courts have held that they do not acquire the right of election till sixteen, following the statute of Philip <fe Mary which punishes the abduction of maidens under that age as a criminal offence. These rules do not apply to illegitimate children, as they are not under the legal guardianship of the putative father or the mother. The rights of the father or mother may be interfered with by the Court of Chancery under special circumstances, -such as cruelty, immorality, &c. A recent Act (36 & 37 Vict, c. 12) gives power to the court to make orders for the mother of an infant under sixteen, to have or retain the custody of such infant, or to have access thereto, &c. The same statute legalizes agreements by the father to give up the custody and control of children to the wife. The Divorce Court has also very extensive powers of regulating the custody and maintenance of children, in exercising which it observes the same limits of age as the courts of law and chancery.

There is not at common law any corresponding obligation on the part of either parent to maintain or educate the children. The legal duties of parents in this respect are only those created by the poor laws and the Elementary Educa-tion Act. In the case, however, of debts contracted by a child for necessaries, the authority of the father would, to use a common phrase, be " easily implied."

Besides the natural guardianship of parents, children may in various other ways come under the authority of guardians. A recent author gives the following as a com-plete list of guardians :—guardian in chivalry, in socage, in nature, by nurture, by election of the infant, by statute (4 Philip & Mary c. 8, 12 Chas. II. c. 24), by custom, by appointment of the ecclesiastical courts and of the Court of Chancery, foreign guardians, and guardians ad litem (Simpson's Law of Infants, London, 1875). Some of these have already been noticed, and others are obsolete or nearly so. The Act of Chas. II. enables the father to appoint a testamentary guardian to his children during infancy or any less period, who shall have the charge of the infant's real and personal estate. The Act is not to prejudice any customary guardianship, such as that of the City of London, where, according to ancient but now disused custom, the goods and lands of the orphans of freemen are in the custody of the lord mayor and aldermen in their court of orphans. By the custom of Kent, and by the special customs of certain manors, the lord has the right of appointing guardians to infant tenants. Guardianship by socage extends only to lands of socage tenure, and belongs to the next of blood of the infant, other than those who might succeed to the estate when the infant dies. It ends when the infant reaches the age of fourteen; after that age, or before if there was no guardian, infants were formerly allowed to elect a guardian, but that practice is now superseded by the action of the Court of Chancery which appoints guardians in all cases where it is for the benefit of the infants to do so. An infant under a guardian appointed by the Court of Chancery is properly a " ward of court," but the term is also applied to infants brought under the authority of the court although no guardian be appointed. The office and duty of the guardian extend to the custody and control of the infant, to his education, maintenance, and advancement out of any property that may be available therefor, and to the prevention of im-proper and disparaging marriages. The office of guardian is strictly a trust, the ordinary duties and responsibilities of a trustee with respect to property being accompanied by peculiar rights and duties with respect to the person of the cestui que trust. He must act in all cases for the benefit of the infant, and may not put himself into any position in which his interest would be hostile to that of the infant. The Court of Chancery has full jurisdiction over guardians of every kind, whether appointed by itself or not, and if it cannot actually dismiss a testamentary guardian, it may supersede him and entrust the charge of the infant to some other person on proper cause being shown (see TRUSTEE).

An infant is liable to a civil action for torts and wrongful acts committed by him. But, as it is possible sometimes so to shape the pleadings in an action as to make what is in substance a right arising out of contract take the form of a right arising from civil injury, care is taken that an infant in such a case shall not be held liable. With respect to crime, mere infancy is not a defence, but a child under seven years of age is presumed to be incapable of commit-ting a crime, and between seven and fourteen his capacity requires to be affirmatively proved. After fourteen an infant is doli capax.

The law of Scotland follows the leading principles of the Roman law. The period of minority (which ends at twenty-one) is divided into two stages, that of absolute incapacity (until the age of fourteen in males, and twelve in females), during which the minor is in pupilarity, and that of partial incapacity (between fourteen and twenty-one), during which he is under curators. The guardians (or tutors) of the pupil are either tutors-nominate (appointed by the father in his will); tutors-at-law (being the next male agnate of twenty-live years of age), in default of tutors-nominate; or tutors-dative, appointed by royal warrant in default of the other two. No act done by the pupil, or action raised in his name, has any effect without the interposition of a guardian. After fourteen, all acts done by a minor having curators are void without their concurrence. Every deed in nonage, whether during pupilarity or minority, and whether authorized or not by tutors or curators, is liable to reduc-tion on proof of " lesion," i. e., of material injury, due to the fact of nonage, either through the weakness of the minor himself or the imprudence or negligence of his curators. Damage in fact arising on a contract in itself just and reasonable would not be lesion entitling to restitution. Deeds in nonage, other than those which are absolutely null ab initio, must be challenged within the quadriennium utile, or four years after majority.

In the United States, the principles of the English common law as to infancy prevail, generally the most conspicuous variations being those affecting the age at which women attain majority. In many States this is fixed at eighteen. There is some diversity of practice as to the age at which a person can make a will of real or personal estate. (E. R.)

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