even though for accommodation, are not within the scope of the Statute of Frauds relating to guarantees.36

(6) A negotiable instrument is treated not simply as evidence of a contract, but the instrument is the obligation itself. Thus a negotiable instrument may be the subject of conversion and the measure of damages is the face of the instrument if collectible. It may be assigned by delivery like a chattel rather than a chose in action. 38 The law of taxation and of administration also, to some extent supports the view that the document itself is the obligation. Negotiable instruments, moreover, are generally held within the section of the Statute of Frauds covering sales of goods and chattels.39 Finally, the cancellation of a bill or note is appropriately made by the destruction of the document. If the holder of a negotiable instrument intentionally destroys it, the obligation of all parties to the instrument ceases; 40 whereas if any ordinary written contract were intentionally destroyed by the promisee, though he might have some difficulty in proving his case in court, his right would not be lost.

On the other hand, a negotiable instrument resembles a simple contract in its requirement of consideration. It is conceived that the doctrine is most accurately stated by saying that lack of value or consideration as between the immediate parties is a personal defence.41 The identification of negotiable instruments with simple contracts, however, so far as consideration is concerned, has been often treated as so complete except for the purpose of pleading, as to lead courts to treat consideration as a necessary element for the creation of such an instrument.42

Jarvis v. Wilson, 46 Conn. 90, 33 Am. Rep. 18; Nelson v. First Bank, 48 Ill. 36, 95 Am. Dec. 510; Laflin v. Sinsheimer, 48 Md. 411, 30 Am. Rep. 472; O'Donnell v. Smith, 2 E. B. Smith, 124; Casey v. Brabason, 10 Abb. Pr. 368; Strohecker v. Cohen, 1 Speers, 349; Fisher v. Beckwith, 19 Vt. 31, 46 Am. Dec. 174; and see infra, § 458. 37 2 Ames' Cas. Bills and Notes, 693.

38 See infra, § 439.

39 See infra, § 521.

40 Neg. Inst. Law, Sec. 119 (3), infra, § 1189.

41 This is the form of statement in Neg. Inst. Law, Sec. 28. See infra, Sec. 1146.

42 See Neg. Inst. Law, Sec. 24-28, infra, § 1146; Daniel, Neg. Inst. §§ 160 et seq.

Infants' contracts are now held voidable and not void.

226

Statutory changes in the common-law liability of infants.

230

Voidable means valid until avoided..

231

Infant's privilege is personal.

232

Whether the privilege may be exercised against a subsequent purchaser in

§ 222. Parties of limited capacity to contract.

The formation of contracts requires the existence of parties capable of contracting, but capacity of any person to contract is to be presumed unless he falls within one of the classes of persons who are held by the law to have no capacity, or only a limited capacity to contract. These classes are:

Infants,

Insane Persons,

Intoxicated Persons,

Married Women,

Corporations.

The extent to which agents and fiduciaries of various kinds are personally bound by the contracts which they make as such presents an analogous question which may be considered in the same connection. Whether a party has capacity to contract is determined by the law of the place of the contract, 43 in accordance with the general rule that the validity of a contract and its construction are determined by that law.44

§ 223. Early law as to the validity of an infant's contract.

The law governing agreements made during infancy is of considerable antiquity. In 1292 a decision is reported regarding a guardian's account.45 It was there said that a release by the infant would not bar him from suing when he came of age, and the court added, "for if an infant under age borrow of another twenty marks on the security of a good writing made between them, and by the twenty marks make a profit of forty marks, and the creditor, when the borrower attains his full age, bring a writ of Debt against him and put forward the writing against him, he may say that he was under age when, etc., and may pray judgment, and so bar him of his action. And although the plaintiff say that the infant has made a profit, yet thereby the infant shall not be prejudiced." But it was said that if acknowledgment of full receipt from the guardian was made by the infant in a court of record, he would be barred when he came of age. By the fifteenth century it seems to have been well settled that an infant's bargain was in general void at his election (that is voidable), and also that he was liable for necessaries. 46

43 Matthews v. Murchison, 17 Fed. 760, 768; Flittner v. Equitable Life Assur. Soc., 30 Cal. App. 209, 157 Pac. 630; Union Trust Co. v. Knabe, 122 Md. 584, 89 Atl. 1106.

44 See Professor Beale's exhaustive

articles in 23 Harv. L. Rev. 1, 79, 194 260; Netherwood v. Raymer, 253 Fed. 515.

45 Y. B. 20 and 21 Edw. I, p. 318. 46 Y. B. 18 Edw. IV, pl. 7. See also 10 Hen. VI, pl. 46.

In the books after that time a number of decisions are reported.47

About the year sixteen hundred, it was laid down by Perkins 48 that gifts or grants of an infant which are not delivered by his own hand are void, but if they take effect by delivery of his own hand they are voidable only. No one has been able to give any satisfactory explanation of the reason for such a rule, but it has furnished the basis for the doctrine that an infant's power of attorney is invalid; 49 and even that any act done by an agent on behalf of an infant is void.50

Infants' acts were also divided into void, voidable, and binding, according as they were prejudicial to the infant, or possibly beneficial, or certainly beneficial to him as necessaries.51 And these classifications have left some impression on the law.

It is unnecessary to trace here in detail the subsequent English decisions. The development of the law will sufficiently appear from the analyses in the following sections.

$224. Who is an infant.

The age of twenty-one has been fixed by the law for centuries as that at which either a man or woman is regarded by the law as acquiring full capacity.52 No distinction generally has been drawn so far as concerns contractual capacity between a minor of tender years and one, who, having nearly attained his majority, has ample intelligence in fact.53 As the law disregards for many purposes fractions of a day, an infant becomes of age at the beginning of the day preceding the twenty-first

"See Rolle's Abr. "Enfants"; Bacon's Abr. "Infancy" and Comyns Digest "Enfant," for a collection of these cases.

48 Profitable Book, § 12.

49 This was so decided by Lord Mansfield in Zouch v. Parsons, 3 Burr. 1794. As to modern authorities, see infra, § 227.

50 See infra, § 227.

51 Keane v. Boycott, 2 H. Bl. 511, 515; Harvey v. Ashley, 3 Atkins, 607; Earl of Buckinghamshire v. Drury, 2 Eden, 60, 72; Grey v. Cooper, 3 Doug. 65.

522 Pollock & Maitland Hist. 438, Co. Litt. 171; 1 Bl. Com. 463.

53 Ex parte McFerren, 184 Ala. 223, 63 So. 159, 47 L. R. A. (N. S.) 543; McCarty v. Carter, 49 Ill. 53, 95 Am. Dec. 572; Baker v. Lovett, 6 Mass. 78, 4 Am. Dec. 88; and see cases on infancy cited in this section, passim. In California and North Dakota by statute a minor above the age of eighteen cannot disaffirm a contract without restoring the consideration. Hakes Inv. Co. v. Lyon, 166 Cal. 557, 137 Pac. 911; Casement v. Callaghan, 25 N. Dak. 27, 159 N. W. 77.