Persons severally Liable upon same Instrument.

SEC. 47. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff. Gen. Laws, 4954, 5464.

SEC. 48. This section is in derogation of the old rule, that one or all, and not an intermediate number, should be sued. 6 Cal. 183.

SEC. 49. It is no misjoinder of parties defendant for the plaintiff to sue one, or any number more than one, of all the persons severally liable upon the same obligation or instrument. 25 Cal. 521.

Death or Disability of Party or Transfer of Interest.

SEC. 50. An action shall not abate by the death or other disability of a party; or by the transfer of any interest therein if the cause of action survive or continue. In case of the death or other disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party; or, the court may allow the person to whom the transfer is made to be substituted in the action. Gen. Laws, 4955, 5464.

SEC. 51. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. Gen. Laws, 4956, 5464.

SEC. 52. Parties in justices' courts may prosecute or defend in person or by attorney; and any person, on the request of a party, may act as his attorney, except that the constable by whom the summons or jury process was served shall not appear or act on the trial in behalf of either party. Gen. Laws, 5465.

CHAPTER LXXIV.

PARENT AND CHILD.

SECS.

INFANCY-ITS TERMINATION.... 1-2 OF PARENTS.
CAPACITIES AND INCAPACITIES OF 3-5

Infancy-Its Termination.

SECS.

6-13

SECTION 1. Males shall be deemed of full and legal age when they shall be twenty-one years old, and females shall be deemed of full and legal age when they shall be eighteen years old or at any age under eighteen when, with the consent of the parent, guardian or other person, under whose care or government they may be, they shall have been lawfully married. Gen. Laws, 4433.

SEC. 2. Males and females of legal age, as fixed by this act, shall be competent to make contracts, convey real estate and do all other acts and things, that persons of full age may legally do. Gen. Laws, 4434.

Capacities and Incapacities of.

SEC. 3. An infant may libel, slander, assault, convert and disseize. He can contract only for necessaries, but he can commit torts as efficiently as an adult, and against injuries of that character his non-age will afford him no protection. 25 Cal. 151.

SEC. 4. No one can take advantage of the fact of infancy, except the infant himself or his heirs or personal representatives. 24 Cal. 207.

SEC. 5. The main question in this case is, whether a mortgage executed in 1856 by a femme-covert under the age of eighteen, can be enforced against the plea of infancy, the mortgage having been made upon the separate estate of the femme. The act of May 10th, 1854 (Wood's Digest, 541), fixes the legal age of males at, twenty-one and of females at eighteen, and provides that at those periods, respectively, they shall be competent to contract and to convey real estate. The act of April 2d, 1858 (Statutes, 108) provides that married women, when under the age of eigh

teen and married with the consent of their parent or guardian, shall be deemed of full and lawful age. It is true that the statute of conveyances (Wood's Digest, Sec. 2, 100) empowers husband and wife, by their joint deed, to convey real estate to the wife; but the act continues: "In like manner as she might do if unmarried." Taking all these acts together, and it seems evident that the disability of infancy, as defined by the first act cited, attaches as well to femmescovert under age as to femmes-sole, subject only to the act of 1858, which has, however, no application to mortgages executed in 1856. It is urged in avoidance of this plea, that the deed of an infant is not void but only voidable, and that it will be held valid unless disaffirmed on the infant's arrival at legal age. But if this doctrine be generally true it would not apply to such a case as this-the case, namely, of a married woman whose disability of coverture might prevent, if not the possibility of her own volition, of an act of disaffirmance, yet its effectual exercise; and the principle would not, moreover, apply to the case of a note and mortgage, in respect to which there would seem to be no act of disaffirmance necessary until demand of payment were made or enforcement were sought. It seems that refusal to acknowledge the asserted obligation was made as soon as payment was insisted upon. 18 Cal. 159, 160.

Of Parents.

SEC. 6. A parent may, for some purposes and under some circumstances, emancipate his child. The intention to emancipate is a question of fact, and in the absence of direct proof may be inferred from circumstances. 8 Cal.

123.

SEC. 7. A father may emancipate his minor child, and when emancipated the child is freed from parental control, and is in all respects his own man. Evidence that a minor was in the habit of doing business on his own account and in his own name, and of becoming responsible for his own supplies, is admissible for the purpose of proving his emancipation. The doctine of estoppel has no application to infants. 25 Cal. 147.

SEC. 8. The parent has a right to the services of his

child; and the resulting right to change the residence of the child is equally clear. 8 Cal. 123.

SEC. 9. Parents are under obligations to support their children, and are entitled to their earnings. 8 Cal. 123.

SEC. 10. It is the duty of the parent to supply his child with necessaries, and he is liable to others who furnish them under certain circumstances. The parent cannot divest himself of this duty by giving the child his own time. If the child is taken sick and the parent has means, he is bound to take care of him even after he has given him his time. The parent cannot absolve himself from that responsibility. And if that responsibility continues, the power over the child must also continue. The responsibility and the power must stand or fall together. The duty of the parent to feed, clothe and educate, the child must be commensurate with the power to control and govern. Such a responsible and delicate relation cannot be destroyed by the voluntary act of the father without consideration. A parent cannot cease to be the natural guardian of his infant child under such circumstances. And being the guardian of his child, no contract as between them can be enforced. It is the duty of the parent to support the child; and for doing this, it is very doubtful whether he could maintain a suit against the child, even upon an express promise made after becoming of age. And when a father promises his infant child a certain reward for doing that which he was already bound to perform, the agreement has no consideration whereon to rest. It is one of those understandings that must be left to the parties to settle themselves. It is of too doubtful and delicate a character to be the subject of investigation in a court of justice. 8 Cal. 124, 125.

SEC. 11. Even in cases where the child is of age and remains in the service of the parent as one of the family, courts have manifested great jealousy of claims for compensation. Where the alleged services were performed after the son was of full age, the court held that he was not entitled to recover, upon the ground that no mutual contract was proven. Courts listen reluctantly to claims for wages by a son against the estate of a deceased parent. Such claims must be accompanied with clear proof of an agree

ment, not depending on idle and loose declarations, but on unequivocal acts of the intestate. As for example: A settlement of an account or money paid by the father to the son as wages, distinctly thereby manifesting that the relation which subsisted was not the ordinary one of parent and child, but master and servant. 8 Cal. 125, 126.

SEC. 12. Where the father is absent for some years, leaving his infant son to manage for himself, and contributing to his support, and not interfering in any way with his son's engagements, the son can sue and recover in his own name for work and labor done while a minor. Where an infant performs the labor with the consent of his father and for another person, and upon a promise to pay the infant, the latter can maintain an action in his own name' 8 Cal. 123.

SEC. 13. Parents may transfer this right to the earnings of their children, or authorize those who employ their children to pay them their own earnings, and the payment will be a discharge against the parents. The principle upon which the infant is allowed to collect his wages is that of agency. The infant can be his father's agent, and whether he is so or not is a question of fact, like any other question of agency which may be proven by either direct or circumstantial testimony. 8 Cal. 123.

SECTION 1. By agreement between creditor and debtor a less sum than the whole amount may be paid and received in full payment and discharge of any indebtedness, if such agreement be clearly manifested by a receipt or instrument, in writing, signed by such creditor. Laws 1867-8, 31.