Kuns's v. Young , 34 Pa. 60 ( 1859 )

The opinion of the court was delivered by

Read, J.

This was an action against the executor of Abigail Kuns upon a parol promise of the testatrix, in her lifetime, to pay a debt of her illegitimate child, for the purchase-money of land sold and conveyed to him by the plaintiffs below, in consideration of forbearance. There were several counts in the declaration as amended, laying this in different forms. For the balance of the purchase-money, her son, Isaac E. Kemp, had given two bonds, with warrants of attorney, upon which judgments were entered in Schuylkill county — the real debt in each being $400; the first payable on the 1st April 1852, and the second on the 1st April 1853.

Certain points were presented to the court on the trial, upon which they were asked by the defendant’s counsel to charge the jury, and the answers given are assigned for error.

The second and third errors assigned are, that although the court stated the law correctly, and as requested, they declined to say to the jury that, upon the evidence, the plaintiffs could not recover; and in leaving it to the jury to say, whether the evidence proved, or had a tendency to prove, the promise as stated by the defendant in his third point. In this we see no error, but only a careful demarcation of the line between the provinces of the judge and the jury. The law is properly laid down, and for that the court is responsible; and if the jury erred, the only remedy was a motion for a new trial in the court below, which was not resorted to in this case.

The last point presented to the court, that the judgment-bonds and judgments entered thereon, being given by Isaac E. Kemp when he was a minor, are void, and insufficient to support the promise made by the testatrix, is founded upon a misconception of the law. The privilege of an infant is a personal privilege, of which he alone can take advantage, and contracts can be avoided for the infancy of the contractor, only by the contractor himself: Macpherson on Infancy 478, (41 Law Library); Hesser v. Steiner, 5 W. & S. 476. Isaac E. Kemp was of age before the first bond became due, cut wood, and exercised acts of ownership on the land conueyed to him, and sold part of it to others, but never disputed the judgments or the securities upon which they were founded. The answer of the court may be considered as a negative one, and in this there was no error.

Judgment affirmed.