Reed v. Lane , 61 Vt. 481 ( 1889 )

.The opinion- of the court was delivered by

Royce, Ch. J.

The demurrer to the replication in this case' raises the question whether the act of an infant in endorsing his name on a writ as bail and surety for the appearance of the defendant named therein and that he should respond to any judgment that might be obtained against him,- was void or voidable as a contract.

This subject is one .on which there was at one time considerable conflict among the authorities, and the rule that an infant’s contracts are void or voidable according as they may be pronounced to be prejudicial or useful has been laid down and recognized by many courts and judges. But the better opinion and the tendency of the later cases seems to be that an infant’s contracts arc none of them, or nearly none, absolutely void. See Parsons Con. (7th Ed.) p.335 and n. (U), where the authorities are collated; and for an admirable criticism on the vague and indefinite use of the words void and Voidable and for a definition and classification of the several senses in which they are used, see opinion of Bell, J., in State v. Richmond, 6 Foster (N. H.) 232.

-It is there said: “Contracts and proceedings are properly called voidable which are valid and effectual until they are avoided by some act,” and “Voidable contracts are in general, perhaps always, * * * capable of confirmation by the party who has the right to avoid them.” The distinctions here drawn are recognized and the whole subject is learnedly discussed in Person, Admr. v. Chase, 37 Vt. 648, by the authority of which «case it may be said that this court adopted the rule to which we have above adverted as being at present the prevailing one; and In Patchen v. Cromack, 13 Vt. 334, a contract of similar nature to the one here in question, the recognizance of an infant, was üield not void, but voidable. We regard this authority as decisive -.and therefore hold that upon the question raised by the replication the demurrer is not well taken. But the demurrer reaches back through the whole series of pleadings, and we thus find a «question raised as to the sufficiency of the declaration. The writ in the original action is therein described as a writ of attachment in an action on the case, and the officer’s return is describéd •as showing that the writ was served as a capias by arresting the body of the defendant named therein. It does not appear from the declaration here that that writ issued as a capias and it does not follow from the nature of the action that a capias could 'have issued.

The action might have been assumpsit, which is a form of •action on the case and if so, then a capias could .issue only upon 4he filing of the proper affidavit; and as this was a necessary preliminary step, the declaration should show that it had been taken. Unless it had been the writ could not issue, and the arrest would be illegal. Aiken v. Richardson, 35 Vt. 500; Blood v. Crandall, 28 Vt. 396; Davis v. Dorr, 30 Vt. 97.

And so too the declaration should aver that the original writ issued as a cajoias, if such be the fact; otherwise the officer exceeded his authority and the writ would be for that reason illegal.

In the particulars pointed out the declaration is fatally defective, and for that reason the demurrer should be sustained.

Judgment reversed, demurrer sustained and declaration adjudged insufficient. Plaintiff asks for leave to amend, which ds granted on the usual terms.