Francis v. Thompson

1 Tapp. Rep. 289

• Court: Harrison County Court of Common Pleas
• Decided: November 15, 1818
• Status: Published

Opinion

President.

The first objection to this indenture is, that the defendant did not covenant that the plaintiff should be taught to read and write. After the plaintiff has served the defendant three years, the latter claims to be released from all his covenants, because they were not as onerous upon him as they ought to have been; this is a most knavish objection, one that can receive no support from the law, or countenance in a court of justice. The “act concerning apprentices and servants,” section 1st, enacts, “ that all indentures made by. overseers of tbe poor, by and with the consent of a justice of the peace in any township in this state, or by any parents or guardians for binding or putting out any child as an apprentice or servant, shall, among the covenants in such indenture made and agreed upon between the parties, always have a clause to the following effect, that every master or mistress to whom such child shall be bound as aforesaid, shall at least cause such child to be taught and instructed to read and write.” If this direction of the statute is not observed, the minor, who is injured by the omission of such covenant, may perhaps avoid, on that account, the obligation of the covenant on his part, to serve. The statute does not, indeed, determine what effect such omission shall have upon the indenture; it does not say that it shall, in such case, be void, or voidable. If it is voidable, it can only be so at the instance of the party injured; and when the contract is executed on the part of the minor, he is entitled to damages for all the covenants which have been broken on the part of the master. It does not appear on this record, that the plaintiff was a minor at the time of executing this indenture. It may be conjectured that he was, from the circumstance of his binding himself “by and with the consent of his father,” and from his father having signed his consent subjoined to the indenture — but this is not conclusive, or even preponderating evidence, of such fact; and, as we cannot assume any facts not stated, the demurrer must fail altogether. But if this difficulty was obviated, the second cause of demurrer would stand on the same principle as the first: the same section of the statute directs, that “ the age of the person so bound, shall be inserted in the indenture,” &c. That there may be no question as to when he is free, it should be inserted for the benefit of the minor; but the omission does not make the indenture either void in law, or voidable at the instance of the master. Admitting that the plaintiff was an infant at the time of executing this indenture, it does not follow “that the indenture was and is void in law” — for “an infant may maintain covenant upon mutual covenants though he himself is not bound by his covenant on the other part,” 3 Com. Dig. 618 — “ A fortiori where the money or consideration on the part of the infant is paid, and the consideration executed,” ib. The bond of an infant is voidable only, 1 Johns. Cas. 12", and infancy is a personal privilege, of which the party alone can avail himself, 2d Johns. 279, 5 Johns. 160, 2d. Hen. Black. 511. The question, what acts of infants are void and what voidable only, was very ably discussed by Lord Mansfield in the case of Zouch vs. Parsons, 3 Burr. 1794, 1 Black. 575. qq,e as laid down by Perkins, section 12, that “all such gifts, grants, or deeds, made by infants, which do not take effect by delivery of his hand, are void; but all gifts, grants or deeds made by infants, by matter in deed or in writing, which do not take effect by delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate ” is recognised as the correct doctrine.

The privilege of infants is intended for their protection; that is the object which must be kept in view in all cases. The defendant here, is not setting up this objection to the indenture as a protection to the plaintiff, but as a fraud upon him; now there is not any case to be found, where the other party to a deed has avoided it on the ground of infancy; it is very certain that it cannot be done. Demurrer overruled.