Cochran, Eugene B.

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University of Kentucky

Kentucky Law JournalVolume 14 | Issue 4 Article 61926Emancipation as Affecting the Disabilities of InfantsEugene B. CochranFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationCochran, Eugene B. (1926) "Emancipation as Affecting the Disabilities of Infants," Kentucky Law Journal: Vol. 14 : Iss. 4 , Article 6.Available at: https://uknowledge.uky.edu/klj/vol14/iss4/6NOTESE MANCIPATION AS AFFECTING THE DISABILITIESOF INFANTS."Emancipation is the entire surrender of all the parent'sright to the care, custody, and earnings of the child, as well asthe renunciation of parental duties." The foregoing is a com-monly accepted definition of the legal term emancipation. Aminor wishing to be free from parental control, enters into acontract with the parents by which, in return for a release of allthe minor's obligations to the parents, the minor releases theparents from all obligation to him or her.It is our purpose to consider the effects of emancipation inwhatever form it occurs on the disabilities of an infant. Doesit free him from all the disabilities of infancy, and can he con-tract with the same freedom as an adult? Or may he still set upinfancy as a defense, as he could before his emancipation? Thechief factor entering into the solving of the problem is themethod by which the emancipation took place.The commonest method by which the emancipation of aninfant occurs is by the neglect of the parent to support the child.This is not a complete emancipation, and it seems that the onlyeffect of it is to put an end to the parent's right to take theinfant's earnings, but it in no way releases the parent from anyobligations to the child.1  It does not enlarge the infant's powerto contract or affect his right to plead infancy, as a defence.Sometimes an infant and the parent make an agreement bywhich the infant is emancipated. In this case, both parent andchild are released from their obligations to each other. But,as before, the infant's power to contract is not enlarged. He isnot estopped from setting up his plea of infancy.2But suppose the infant marries. Is he now emancipated forall purposes? It seems now for the first time that we have areal reason for putting the infant on the same plane as an adult.116 Am. & Eng. Enc. Law, 2nd Ed., p. 282; 2 Page, Contr., sec. 852;Clark, Contr., p. 150; 22 Cyc. 516, 517; Wickham v. Torley, 36 L. R. A.(N. S.) 57; Wuller v. Chuse Grocery Co., 28 L. R. A. (N. S.) 128, 89N. E. 796.2 See cases cited, supra.KENTucKY LAw JouRNI.AIn the case of Del. L. & W. R. B. Co. v. Petrowsky,3 JudgeRogers says, "It appears to be settled that the marriage of aminor with his father's consent works an emancipation, thereason given for this proposition being that the marriage givesrise to a new relation inconsistent with subjection to the controland care of the parent. The husband is the head of a newfamily and as such is subject to obligation and duties to his wifeand children which require him to be the master of himself, histime, his labor, earnings, and conduct. Sherburne v. Hartland,37 Vt. 528; Cochran v. Cochran, 196 N. Y. 86, 89; State, e rel.,Scott v. Lowell, 78 Ainn. 166." This would seem to indicatethat the married infant is to be regarded as an adult, but thecourt is careful to point out that "the marriage of a minor doesnot emancipate him from all the disabilities of his infancy."At least two jurisdictions hold that emancipation of a minorby marriage with the consent of the parent completely removesthe disabilities of infancy and places him on the same plane as anadult.4 Others hold that marriage removes the disabilities ofan infant to a limited extent.5For example, in the case of Taunton v. Plymouth, supra.it was said, "The marriage, in this case, may have removed thepauper, Abraham Tisdale, fronA the control of his father, andperhaps have given him a right, as against his father, toapply all his earnings to the support of his family. Butit did not give him a capacity to make binding contracts,beyond other infants; or any political or municipal rights, whichdo not belong by law to minors." And in the case of Morganv. Cunningham, supra, we find the following statement, "Wetherefore agree with the appellant's contention that the marriageof Charles Morgan did not make him of lawful age, nor did itremove the civil disabilities imposed upon him as a minor.But such marriage did have the effect of emancipating8250 F. 554, Certiorari denied, 38 S. Ct. 427.' Hoys v. Gowdoin, 159 Ala. 600, 49 S. 122; Roe v. Caldwell, 145 La.853, 53 S. W. 986.5Bell v. Burkchalter 183 Ala. 527, 62 S. W. 786; Ex. p. Hohlopeter, 52Wash. 41, 100 P. 159; Delpit v. Young, 51 La. 923, 25 S. 547, wJere itwas held that an infant married woman has capacity to sue for annul-ment of marriage; Tauntoun. v. Plymouth., 15 Mass. 203; Austin. v.Austin, 167 Mich. 164, 132 N. W. 495; Morgan v. Cunningham, 109Wash. 105, 186 P. 309.EMANCIPATION AS AFFECTING DisABamTIEs oF INFANTS 347him and making him the head of a family. He thereafter be-came his own man. He was bound to use his income and wages,not for the support of his mother, but for the support of his ownfamily."2The policy of the law is to protect the infant. The lawpresumes the minor immature in his judgment and reason, andliable, through the persuasion of an older mind, to enter intodisadvantageous contracts, and for that reason it has given theminor a defence to such contracts, the plea of infancy. Evenin the case of marriage of a minor, the law cannot add to the-tender age of the minor, nor make sound his immature judg-ment, and therefore it will not deprive the infant who haseffected his emancipation by marriage of the defense which thelaw has thrown around him.Some jurisdictions have passed statutes allowing the infantto be emancipated by order of the court. These jurisdictionshold that the legislature has power to endow minors to makecontracts otherwise lawful, and after he has been so endowedhe becomes an adult, or at least on the same plane.6 In Yowngv. Sterling Leather Works, supra, the court said, "So it appearsihat, at common law, an infant could only legally bind himselfby a contract which was for his benefit, and that obligations im-posed, by statute, upon an infant were binding. But even ifthis were otherwise, there is no constitutional provision in theway of the Legislature to deal with the disabilities of infancy,as it, in its legislative wisdom or judgment, may see fit. Ac-cordingly, the Legislature has the power to change the age atwhich a minor is privileged to exercise legal rights which shallbe binding upon him. It may give him legal power to act whenhe is 16 or it may raise the age of majority when he shall beentitled to perform certain legal acts."Even under such statutes some courts have held that it mustbe shown that the removal of the disabilities is for the best in.terest of the minor, and that he is capable of attending to hisown affairs or business. The cases of Dalton v. Bradley Lumber6 Scott v. Nashville Bridge Co., 223 S. W. (Tenn.) 844; People v.Kowalski. 138 N. E. 634 (Ill.); Peterson v. Weimar, 194 N. W. (Wis.)346; Forgis v. Folk Co., 147 Wis. 327, 133 N. W. 209; Young v. SterlingLeather Works, 91 N. J. Law 289, 102 A. 395.KENTUCKY LAw JOURNALCo., and Doles v. Hilton7 hold that an infant who is not shownto be capable of transacting his own business cannot have hisdisabilities removed, even by a court order made pursuant tolegislative authority, on the ground that the statute providingfor judicial emancipation should be construed as applicable onlyto infants who are capable of adult conduct.EUGENE B. C0cmAN.THE RIGHTS AND POWERS OF AN OFFICER INSERVING A PROCESS.A process, in the sense the term is employed in this article,is the means or method used by the court to acquire jurisdictionof a person and compel him to appear in court after suing outthe original writ in civil cases and after indictment in criminalcases. The Kentucky Code defines the word "process" as awrit or summons issued in the course of judicial proceedings.'A process, in order to give the court jurisdiction of a party,must be served by the proper officer. Ordinarily the sheriff isthe proper officer to execute all writs returnable to court. Hispower is defined in this state by statute: "Each sheriff, by him-self or deputies, shall execute and make due return of . . . allprocesses which come to, and may be lawfully executed by him,against any person . . . in his county, . ,2 InKentucky a process may also be served by a constable, coroner,elisor or jailer. The power of a constable to execute a processis thus defined: "Constables may execute bench warrants, war-rants of arrest, distress or other warrants, summons, subpoenas,attachments, notices, rules and all orders of courts in all crimi-nal, penal and civil cases, and shall return all such processes,noting the time of execution on them, to the courts or personsissuing them. "3 The statute also provides that a process maybe served by a coroner: "A coroner may execute process incriminal, penal and civil cases, and when so acting, the laws inregard to sheriffs shall apply to and govern him.' '4 The power7Dalton v. Bradley Lumber Co., 135 Ark. 392, 205 S. W. 695; Dolesv. Hilton, 48 Ark. 305, 3 S. W. 193.' Section 732, sub. 26, Ky. Civ. Code.2 Section 4565, Ky. Stat.3 Section 436, Ky. Stat.4 Section 536, Ky. Stat.

Emancipation as Affecting the Disabilities of Infants

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Emancipation as Affecting the Disabilities of Infants

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