Citation Numbers: 61 Vt. 481
Judges: Royce
Filed Date: 2/15/1889
Status: Precedential
Modified Date: 7/20/2022
.The opinion- of the court was delivered by
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
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.