will and her husband was joined with her in such guardian is a competent witness. The the appeal, she being an heir-at-law of the real party, in such case, is the infant, and the estate, but he being neither an heir, nor a lega- guardian, or prochein ami, is merely a manager tee or devisee ;-Held, that she was a compet- or conductor of the suit for the infant. Bonett ent witness on the trial of the appeal. Robin- v. Stowell, 37 Vt. 258. See Brown v. Hull, 16 son v. Hutchinson, 31 Vt. 443; and see Rut. & Vt. 673. Bur. R. Co. v. Lincoln, 29 Vt. 206.

133. The widow of one who, when living, 125. Stat. 1852. (G. S. c. 36, s. 24.) "No was either a party to or interested in the suit, person shall be disqualified as a witness in any is a competent witness, if her testimony does civil suit or proceeding, at law or in equity, by not involve the disclosure of matters of confireason of his interest in the event of the same, dence between her and her deceased husband, as a party or otherwise." This statute does nor affect his character. Smith v. Potter, 27 not remove the incompetency arising from a Vt. 304. Edgell v. Bennett, 7 Vt. 534. rule of policy, which forbids the husband and 134. The wife of the principal debtor, after wife testifying for or against each other; and his default and on a hearing before a commiswhere the husband is living and a party to the sioner upon a disclosure of the trustee, was suit, and the wife is not a party, she is not a competent witness. Peck, J., in Carpenter v. Moore, 43 Vt. 394; and see Sargeant v. Seward, 31 Vt. 509.

126. Thus, on a trial of a petition for a divorce, neither party can testify. Manchester v. Manchester, 24 Vt. 649. (Changed, in part, by Stat. 1870, No. 27. Stat. 1876, No. 77.)

127. Nor is the wife a witness for the husband in a common law suit, where he is a party. Sargeant v. Seward, 31 Vt. 509;-though he may be prosecuting as an administrator, having no other interest. Cram v. Cram, 33 Vt. 15. Davis v. Davis, 48 Vt. 502.

held not to be a competent witness against the trustee. Brown v. Burrington, 36 Vt. 40.

135. A suit was discontinued by death of the defendant after he had fully testified, and the same claim was presented to commissioners of his estate, and an appeal taken. On trial of the appeal ;-Held, that the testimony so given was proper evidence for the administrator, although by the death of such defendant his widow had become a competent witness, and testified. Mathewson v. Sargeant, 36 Vt. 142.

136. Where wife is agent. Under G. S. c. 36, s. 27, allowing a wife to testify in cases where her husband is a party when "the trans128. Nor is the wife a witness on the pro-action was had and conducted by her as agent bate of a will where her husband is an heir to for her husband;"-Held, that she could not the estate, though he is not a party of record testify to a contract made by her for the hiring to the suit. Carpenter v. Moore, 43 Vt. 392. out of their minor son, without proof of author

129. Nor is the husband a witness, though ity from the husband. In what cases she may not a party to the record, where the wife is be treated as such agent, without proof of directly interested in the event of the suit, express authority, discussed. Orcutt v. Cook, though she is not a party to the record. Wheeler 37 Vt. 515. See Town v. Lamphire, 37 Vt. 52. v. Wheeler, 47 Vt. 637.

130. But where the husband is not a party to the suit, either real or nominal, but interested only collaterally in the event of the suit, as by being bail for costs, or in like manner, the wife, though not a party, is not incompetent by reason of the marital relation. Peck, J., in Carpenter v. Moore, 43 Vt. 394.

137. Where a wife kept and made entries on her husband's books from memoranda kept by him ;-Held, that she was not such "agent," as to be a witness for him to prove the state of the accounts and the loss of the book. Estabrooks v. Prentiss, 34 Vt. 457.

138. Under this statute, a wife is a witness for her husband in a business transaction conducted by her solely, and as his agent, although he "was generally at home and might have known in relation to it." Lunay v. Vantyne, 40 Vt. 501.

131. Thus, a wife is a competent witness in a suit against an estate of which she is an heir, though her husband had signed the appeal bond with the administrator, and had given a bond to the administrator to indemnify him against 139. Where a man leaves his wife at home any liability on account of the suit, the admin during his temporary absence, as for a day, istrator having abandoned the defense which without any special charge, or any other charge was made by the heirs in his name, it not or agency than any married woman living and appearing that her testimony would violate any keeping house with her husband would have confidence between her and her husband. Rut. in such case, she is not such an agent of her & Bur. R. Co. v. Lincoln, 29 Vt. 206. husband as to be a witness for him, under the 132. In a suit in favor of an infant, brought statute, as to matters transpiring during his by his father and natural guardian, the wife of absence. Bates v. Cilley, 47 Vt. 1.

1. Age of majority. The age of majority 14. The plaintiff, an infant, agreed to work of females in this State, fixed by the constitu- for the defendant one month for $15,- $5 to be tion as uniformly construed, and for every paid in cash and $10 in fulled cloth of one F, purpose, is eighteen years. Sparhawk v. Buell, for which the defendant was to give an order 9 Vt. 41. Young v. Davis, Brayt. 124. on F. The plaintiff performed the service, 2. Emancipation. The emancipation of an and the defendant afterwards paid him the $5 infant by his father, does not enlarge or affect and gave him the order on F, which was not the infant's capacity to make a contract; it only collected. Held, that the plaintiff could avoid releases him from his father's control. Person the contract as to the order, and recover for his v. Chase, 37 Vt. 647. services on a quantum meruit, deducting the $5 received. Abell v. Warren, 4 Vt. 149.

3. Confessions. The confessions of a minor are evidence against him, but should be weighed by the jury in reference to his age and understanding, and capacity to judge of his rights. Mather v. Clark, 2 Aik. 209.

4. Serving writ. An infant cannot be specially authorized to serve a writ, by the magistrate signing it. Harvey v. Hall, 22 Vt. 211.

5. But he may be specially deputed by the sheriff to serve a particular writ, under G. S. c. 12, s. 8. Barrett v. Seward, 22 Vt. 176. Poland, J., dissenting.

15. An infant having executed a release to a proposed witness; but upon a secret agreement which left the witness still interested; -Held, that though the transaction was an attempted fraud upon the court, yet the infant was not bound by the release. Walker v. Ferrin, 4 Vt.

523.

16. An accord with satisfaction being but a contract, an infant is not bound thereby beyond the amount received. Bromley v. School District, 47 Vt. 381.

has received the consideration; but if he has executed the contract on his part by the payment of money, or the delivery of property, or the rendering of services, he cannot disaffirm the contract and recover back what he has paid,

17. Conditions of avoidance. An infant 6. Defending suit. An infant is legally may avoid an executory contract, although he incapable of appearing for himself and defending his suit, or of appointing any attorney for such purpose. Starbird v. Moore, 21 Vt. 529. Somers v. Rogers, 26 Vt. 585. 7. Making will. An infant cannot, under Vermont statutes, make a will,-not even a without restoring to the other party what he soldier's will. Goodell v. Pike, 40 Vt. 319.

II. HIS CONTRACTS.

8. Void. A promise of marriage made by an infant is void. Pool v. Pratt, 1 D. Chip. 252.

9. Voidable. The tendency of modern decisions is, to hold the acts, deeds and contracts of an infant as voidable merely. Kellogg, J., in Person v. Chase, 37 Vt. 648. Bigelow v. Kinney, 3 Vt. 358.

10. A recognizance entered into by an infant is not void, but voidable only. Patchin v. Cromack, 13 Vt. 330.

11. A judgment against an infant is not void, but voidable. Barber v. Graves, 18 Vt. 290.

has received from him. Farr v. Sumner, 12 Vt. 28. Taft v. Pike, 14 Vt. 405.

18. If an infant receive a deed of land and execute notes and a mortgage for the purchase money, he cannot avoid the notes, or mortgage, and yet claim under the deed. Weed v. Beebe, 21 Vt. 495. Bigelow v. Kinney, 3 Vt. 353. Richardson v. Boright, 9 Vt. 368.

19. Where a contract is avoided by an infant, he may recover back whatever he has paid or delivered on it. Price v. Furman, 27 Vt. 268.

20. In order to the avoidance and rescission of a contract by reason of infancy, the infant must offer to restore the consideration received, if it be in his possession and control; but if he cannot restore it, as, if he has disposed of it

Weed v.

Beebe, 21 Vt.

during his minority, he may still avoid the con- what he had received. tract. Nor can it be objected to the offer to 495. return the consideration received, that it has 27. The plaintiff, while a minor, contracted been injured, or depreciated in value. Ib. to labor for the defendant for one year, but left Wiser v. Lockwood, 42 Vt. 720. his service, without cause, before the expiration 21. Where an infant contracts to serve for of the year but about a month after he became a certain term, and quits before he has per- of age. Held, that such continuance in service formed the whole service, he may, in the action after full age was a ratification of the entire of book account or general assumpsit, recover contract, and that he could not recover for his what, under all the circumstances, his services services. Forsyth v. Hastings, 27 Vt. 646. were worth, taking into consideration any dis- 28. An infant lessee, becoming of age beappointment, amounting to an injury, which fore the expiration of his term, continued to the other party sustains by the avoiding of the occupy the premises to the end of the term. contract; and if the other party was injured Held, that this was a ratification of the tenancy, more than the services were worth, the infant and bound him to the provisions of the lease. can recover nothing. Thomas v. Dike, 11 Vt. Baxter v. Bush, 29 Vt. 465. 273. 27 Vt. 761. 31 Vt. 642. Hoxie v. Lin- 29. An infant widow, entitled to dower in coln, 25 Vt. 206. an estate, conveyed all her interest in the estate 22. The plaintiff, an infant, agreed to work by a quit-claim deed to an heir of the estate, for the defendant until she should become of and received $100 as consideration therefor. age, the defendant agreeing to clothe her, After she became of age, she neither affirmed school her, and pay a certain sum at her nor revoked said deed, but prosecuted her suit majority. The defendant failed to clothe and for her share in the estate, and never offered, school her, according to his contract, and by nor had the ability, to return the consideration mutual consent she quit the defendant's service received for the deed. Held, that her right to before her majority. Held, that the plaintiff recover was not affected by the deed. Wiser v. was entitled to recover what her services were Lockwood, 42 Vt. 720. worth, without any deduction for damage to the defendant for so leaving his service. Meeker v. Hurd, 31 Vt. 639.

30. Infant husband. A husband, although an infant, is equally liable with his wife for her debts contracted before marriage. Cole v. Seeley, 25 Vt. 220.

23. The plaintiff, an infant, procured the defendant to sign a note for him, and, to induce 31. Necessaries. Whether articles furthe defendant to do so, turned out a stove, with nished to an infant are of a name and quality leave to the defendant to take it when he pleas- coming within the denomination of necessaries, ed. Before any act of revocation, the defend- is exclusively a question of law; but the jury ant took the stove away. Held, in trespass are to judge to what extent the articles of that therefor, that the defendant could justify by denomination were necessary in the particular license, notwithstanding the plaintiff's infancy. case. Hoyt v. Chapin, 6 Vt. 42.

Bent v. Manning, 10 Vt. 225.

32. It is indeed questionable, whether our 24. Becoming of age-Effect on contract. courts might not now consider money, to a cerEvery act of an infant, which is merely void- tain extent, necessary to be furnished to an inable, he must disaffirm in a reasonable time on fant, under certain circumstances. Redfield, J. becoming of full age, or he will be bound by it. Ib. Bigelow v. Kinney, 3 Vt. 353. Richardson v. Boright, 9 Vt. 368.

33. Under ordinary circumstances, a course of collegiate education is not necessaries, for 25. A person on becoming of age cannot which an infant is chargeable; otherwise, as affirm in part, and at the same time avoid in to a good common school education. Middlepart, an entire contract made by him during bury College v. Chandler, 16 Vt. 683. his infancy. By affirming it in part he affirms it wholly. Morrill v. Aden, 19 Vt. 505.

34. The promissory note of an infant, given for necessaries, will bind him, if the circum26. Where an infant received a deed of stances be such that the consideration may be land, paid part of the purchase money and inquired into; as, if suit upon it be brought by gave an obligation to pay the balance, but no the original payee. Bradley v. Pratt, 23 Vt. mortgage, and on being sued for the balance 378.

defeated the action by pleading his infancy, 35. The defendant, an infant, being indebtbut still retained the land, and after full age ed to A for necessaries, gave his note therefor, conveyed the same to a third person who had by A's request, to the plaintiff, to whom A was knowledge of the facts ;-Held, that the vendor indebted. To an action on the note the defendhad a lien upon the land, distinct from the ant pleaded his infancy ;-replication, that the ordinary vendor's lien, which he could en- note was given for necessaries;-judgment for force in equity for payment of such bal- the plaintiff, upon the above facts, for the ance, without repaying or offering to repay amount of the note and interest. Ib.

36. There is no general rule exempting in- kept within the terms of the bailment, his infants from the payment of interest on their fancy would have protected him, whether he overdue debts; and interest was so allowed. neglected to take proper care of the horse, or Ib., overruling dictum contra in Taft v. Pike, to drive him moderately. Towne v. Wiley, 23 14 Vt. 405. Vt. 355.

37. In an action against an infant to recover 44. Where property is bailed to a minor, for services and disbursements, as his attorney, and he uses it for a different purpose from that in a suit brought by him;-Held, that although for which it was bailed, the bailment is thereby a lawsuit might be necessary for an infant, determined, and he is liable in trover. Green prima facie it was not; and that in this, as in v. Sperry, 16 Vt. 390; and see Baxter v. Bush, all cases, the infancy being a prima facie de- 29 Vt. 465.

fense, the burden is on the plaintiff to rebut the 45. An infant is answerable, civiliter, for defense by proof that the contract was for injuries committed by him-as a trespassnecessaries. Thrall v. Wright, 38 Vt. 494. although done by command of his father. 38. An infant is liable, as trustee, for an Humphrey v. Douglass, 10 Vt. 71. indebtedness to the principal debtor for necessaries. Wilder v. Eldridge, 17 Vt. 226. Scofield v. White, 29 Vt. 330.

46. An action of assumpsit for money had and received lics against an infant for money taken by him tortiously-as where he embezzles 39. An infant, being a single woman, con- or steals it; and in such action, a debt due the tracted a debt for necessaries, and afterwards infant may be attached by trustee process. married an infant. Both were sued and ser- Elwell v. Martin, 32 Vt. 217.

49. Suit by infant Next friend. infant may, in this State, sue by prochein ami, although he has a guardian. Thomas v. Dike, 11 Vt. 273.

41. Held, that to an action on the case for deceit in the sale of a horse, by fraudulently concealing the unsoundness of the horse and 50. In a bastardy prosecution by a minor, falsely affirming that the horse was sound, a commenced not by guardian or next friend, the plea of infancy was a good defense, though the county court, after a motion to dismiss for this plaintiff offered to return the horse. Ib., 311. cause, allowed a prochein ami to enter and 42. So, for a false and deceitful warranty, prosecute. Held correct. Coomes v. Knapp, infancy is a defense, whatever be the form of 11 Vt. 543. action. West v. Moore, 14 Vt. 447. Morrill v. Aden, 19 Vt. 505.

51. A prochein ami, or guardian by whom

a suit in behalf of an infant is prosecuted, is 43. The defendant, an infant, hired the merely a manager or conductor of the suit, and plaintiff's horse to go to B (23 miles), and back is not a party for any purpose. The infant is the same day. He returned by a circuitous the real party. Thus, a petition to vacate a route, nearly doubling the distance, stopping judgment in such case need not be served on on the way from 8 o'clock in the evening until the next friend or guardian, nor need he be 4 o'clock the next morning, and leaving the named in it. Brown v. Hull, 16 Vt. 673. horse exposed during the whole night without 52. So, the wife of the next friend or guarshelter or covering, and returned the morning dian may be a witness for the infant plaintiff. following the hiring. From the overdriving Bonett v. Stowell, 37 Vt. 258. and exposure the horse died. Held, that this was a departure from the object of the bailment and amounted to a conversion of the property, and that the defendant was liable in trover therefor, as much as if he had taken the 54. Suit against-Guardian. If an infant horse in the first instance without permission. be sued without notice to his guardian, the writ But (by Redfield, J.), if the defendant had will not for this cause abate, but the court will

53. So, under the statute requiring a recognizance for costs "by some person other than the plaintiff," the prochein ami may recognize. Duffy v. Pinard, 41 Vt. 297.

order the guardian to be cited in. Wright, Brayt. 21. 11 Vt. 547.

55. It is as necessary that an infant summoned as trustee should defend by guardian, as in other cases. Wilder v. Eldridge 17 Vt.

226.

Potter v. was pending in the county court. The attorney withdrew his appearance, and judgment was rendered against the defendant by default. Held, that such judgment could not be set aside on audita querela, because the party, after becoming of age, had suitable opportunity to appear and make defense. Blackmer v. Dow, 18 Vt. 293.

56. An infant was summoned as trustee, but no guardian was cited in, nor was any appointed. He made disclosure after he be- 64. A justice judgment against an infant came of age, by which it appeared that after will not be set aside, on audita querela, on service of the process, but during his minority, account of his infancy, where his father and he had restored to the principal debtor the natural guardian was sued jointly with him, property which he held in trust. Held, that and appeared and defended the suit. Wrisley he was not chargeable as trustee. Ib. v. Kenyon, 28 Vt. 5. Priest v. Hamilton, 2 57. Where an infant becomes party to a Tyl. 50. trustee process as claimant, it seems that he 65. Notice to guardian. An infant is should be regarded as a party defending rather bound by the decree of the probate court in the than a party sueing, or prosecuting, and should distribution of an estate, where his guardian appear by guardian, and not by prochein ami. was notified and defended. Robinson v. Swift, Keeler v. Fassett, 21 Vt. 539. 3 Vt. 283. 28 Vt. 7.

58. Attorney-Error. An infant is legally 66. Joinder of infant defendant. In an incapable of appearing for himself and defend- action upon a joint contract of two or more, ing his suit in court, or of appointing an attor- where one is an infant, the infant need not be ney to appear and defend for him. Any such joined. But if joined, and his infancy be appearance, or defense, amounts to nothing in urged in defense, the jury may find a verdict contemplation of law. A judgment against for the infant and against the others, or the

him in such case, in the higher courts, will be plaintiff may enter a nolle prosequi as to him, corrected by writ of error; if before a justice, and proceed as to the others. Allen v. Butler, it will be set aside on audita querela. Starbird 9 Vt. 122.

v. Moore, 21 Vt. 529.

67. Pleading and evidence. Infancy may

59. A rule of court was, that "all dilatory be given in evidence under the general issue in pleas shall be filed on or before the third day assumpsit. Kimball v. Lamson, 2 Vt. 138. of the term at which the action is entered." As This rule is not changed by G. S. c. 33, s. 15. applied to the case of an infant defendant, the Thrall v. Wright, 38 Vt. 494.

time prescribed by the rule dates from the appointment of a guardian ad litem to defend ; for an infant is incapable of appearing by himself, or of appointing an attorney. Fall River Foundry Co. v. Doty, 42 Vt. 412.

60. An infant cannot appear and defend by attorney, and a judgment rendered against him, in such case, will be reversed on writ of error. If there are several defendants, all should join in the writ of error, and the judgment will be reversed as to all, the judgment being entire. Somers v. Rogers, 26 Vt. 585. 14 Vt. 77.

INJUNCTION.

1. Granting injunction. Parties within the jurisdiction of the court of chancery may be enjoined from doing those acts, in another State, which would subject them to an injunction if done in this State. Vt. & Canada R. Co. v. Vt. Central R. Co., before Royce, Chancellor, 46 Vt. 792.

61. A judgment rendered against an infant 2. In a proper case, it is entirely competent who appears by attorney, is not void, but void- for a court of chancery to restrain a party withable. On an appeal from such a judgment by in the jurisdiction of this State, from pursuing the infant defendant, the county court refused an action commenced in a court of law in a to dismiss the appeal on the motion of his sister State; but, from courtesy and policy, guardian ad litem. Held correct. Barber v. this power should not be exercised where such Graves, 18 Vt. 290. court of law has a concurrent jurisdiction

62. On a writ of error to reverse a judgment which it first assumed and exercised over the for the cause of infancy, the court only vacates subject matter, unless there be some peculiar the judgment. It does not set aside the pro- equitable ground for so doing. The mere preceedings altogether, but remands the cause for ference of the orator to have the matter deterfurther proceedings. Ib. mined by his own domestic tribunal, is not a

63. Audita querela. An infant, sued be- sufficient ground for such interference. Bank fore a justice, appeared and defended by an of Bellows Falls v. Rut. & Bur. R. Co., 28 Vt. attorney and appealed from the judgment 470.

against him, but became of age while the cause 3. The inability of the court to enforce an