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on a quantum meruit, and the defendant agree to pay a less sum than the demand in full, that is a good consideration for a promise by the plaintiff to pay his own costs and proceed no further. Payment of a less sum than the demand, has been held to be no satisfaction in the case of a liquidated debt; but where the debt is unliquidated it is sufficient. Per Parke, J. Wilkinson v. Byers, 1 Ad. & Ell. 113. But the defendant may plead, that he was the payee of a promissory note, and that he indorsed it to the plaintiff on account of the debt sued for; because, though the promissory note is not a security of a higher nature than the simple contract debt sought to be recovered in the action of assumpsit, yet it gives the plaintiff the advantage of holding a third person liable to him. In this case the security was given for the whole debt; and this seems necessary to entitle the party to plead it in bar; for where a debtor had compounded with his creditors, giving them the security of a third person for payment of part of the stipulated dividend, it was holden, that he was not discharged upon payment of that only, the residue continuing unpaid b. And further, although if creditors simply agree to accept less from their debtor than their just demand, that will not bind them; yet if, upon the faith of such an agreement, a third person (also a creditor) be induced to become surety for any part of the debts, on the ground that the party will be thereby discharged, the agreement, though not under seal, will be binding: and a creditor, after the security given has been paid, cannot sue for the residue of his demand; for that would be a fraud on the surety -N. It did not appear, in this case, that the plaintiff had induced any of the other creditors or the surety to sign the agreement. But where the plaintiff and other creditors of the defendants subscribed to resolutions for entering into a composition deed with the defendants, upon their property being assigned to trustees for the payment of their creditors; the defendants and their trustees having refused to allow the plaintiff to come in as a creditor under the deed; it was holdend, that the plaintiff, although he had subscribed the resolutions, might, notwithstanding, sue the defendants for the amount of his demand. If the creditors sign an agreement to give the debtor time for the payment of their respective demands, and to take his promissory notes for the amount, they cannot sue for the original cause of action, without proving that the
a Kearslake v. Morgan, 5 T. R. 513.
11 East, 390. See also Bradley v.
Gregory, 2 Campb. 383. And Wood v. Roberts, 2 Stark. N. P. C. 417.
Abbott, C. J. d Garrard v. Woolner, 8 Bingh. 258.
agreement has been broken on the part of the debtorf. An accord, with mutual promises to perform is good, though the thing be not performed at the time of action, for the party has a remedy to compel the performances.
3. Infancy.—The defendant may plead that he was an infant at the time of making the promise (61). This privilege of avoiding contracts, which the law confers on such as enter into them during their minority, that is, (by the law of England,) within the age of 21 years, is a personal privilege, the benefit of which must be claimed by the infant, and which can not be exercised for him by any
person. The plea of infancy ought not to be pleaded by attorney, but by guardian; for an infant cannot appoint an attorney. In cases where the contract declared on by the plaintiff has been made with the infant for necessaries suitable to his estate and degree, the plea of infancy will not operate as a bar to the plaintiff's demand; for the law permits an infant to bind himself, either by simple contract, or single bill', for necessariesk, (viz.) necessary meat, drink, apparel, necessary physic, proper instruction, and the like; hence it frequently becomes a question what are necessaries. In an action for goods sold and delivered', it appeared that the goods in question were a livery for a servant of the defendant, who was a captain in the army, and cockades for some of the soldiers belonging to his company. The defendant relied on his infancy, insisting that the goods in question were not within the description of necessaries; the judge left it to the jury to consider whether the livery was not suitable to the degree, and the cockades a necessary expense
f Boothbey v. Sowden, 3 Campb 175. 2 H. Bl. 515, and Ellenborough, C.J.
But see Cranley v. Hillary, 2 M. and in Taylor v. Croker, 4 Esp. N. P. C. S. 122.
187. g Com. Dig. Accord B. 4. recognized i Russell v. Lee, 1 Lev 86, 87.
per Cur. Cartwright v. Cooke, 3 B. k 1 Inst. 172. a. & Ad. 701.
1 Hands v. Slaney, 8 T R. 578. h Per Eyre, C. J. in Keane v. Boycot,
(61) Payment of money into court will not preclude a defendant from availing himself of his infancy, because the money may have been paid into court for necessaries. Per Buller, J. in Hitchcock v. Tyson, 2 Esp. N. P. C. 481. n.
incidental to his situation ; and the jury, being of that opinion, found a verdict for the plaintiff. On a motion for a new trial, Lord Kenyon, C. J. said, that the cockades could not be considered as necessaries for the defendant, and ought not to have been included in the damages; but with respect to the livery, he could not say that it was not necessary for a person in the situation of defendant to have a servant (62); and if it was proper for him to have one, it was necessary that the servant should have a livery. The chief justice added, that however inclined he was in general to protect infants against improvident contracts, yet he thought this case fell within the fair liability which the law imposed on infants, of being bound for necessaries, which was a relative term, according to their station in life (63). The rule for a new trial was discharged, the plaintiff's counsel agreeing to strike out the amount of the cockades. A copyhold estate devolved on the defendantm, when he was an infant of six years of age, whereupon he was admitted (64) and a fine duly assessed. Two years after the defendant (who had continued in possession from the time of his admission ) came of age, an indebitatus assumpsit was brought for the fine, which the jury found to be reasonable. A question was made for the opinion of the court, whether this action would lie against the defendant, he being a minor at the time of the fine being assessed. The court were of opinion, that the action would well lie; and Yates, J. said, that if assumpsit had been brought against the infant during his minority, he should have thought it maintainable; that an infant might contract for necessaries, a fortiori, therefore for a fine which was due on admission, without which the infant could not have received the rents and profits. But in this case it was clear beyond doubt, for the defendant had
m Evelyn v. Chichester, 3 Burr. 1717.
162) See the opinion of Haughton, J. 2 Rol. R. 271. “If an infant is the owner of houses, it is necessary to have them kept in repair, and yet the contract to repair them will not bind the infant ; for no contracts are binding on infants, except such as concern their person.”
(63) So in Ford v. Fothergill, 1 Esp. N. P. C. 212. Lord Kenyon, C. J. said, that the question of necessaries was a relative fact to be governed by the fortune or circumstances of the infant, and that proof of these circumstances lay on the plaintiff.
(64) In the report of this case in Bull. N. P. p. 154. it is stated that the defendant was admitted on coming of age.
confirmed (65) the contract by his enjoyment of the estate two years after he came of age. Infancy is a good defence to an action of assumpsit on the warranty of a horse".
Form of Replication.—A replication in a general form, that the articles provided were necessaries suitable to the estate and degree of the defendant, without stating how, or in what manner, they were necessaries, will be sufficient to bar the plea of infancy. It is however essentially necessary, that it should appear on the face of the replication, that they were necessaries for the infant (66); for where in assumpsit against an executor for a farrier's bill, the defendant pleaded that the testator was an infant P, the plaintiff replied, that the demand
n Howlett v. Haswell, 4 Camp. 118.
p Clowes v. Brooks, Str. 1101. S. C.
by the name of Brooks v. Crowse, Andr. 277.
(65) If goods, not necessaries, are delivered to an infant, who after full
age ratifies the contract by a promise to pay, he is bound; per Raymond, C. J. Southerton v. Whitlock, London Sittings, Str. 630. But see Stone v. Withipoll, Cro. Eliz. 126, where it was holden, that the simple contract of an infant, not being for necessaries, was merely void, and, consequently, that a promise by his executor to pay in consequence of forbearance, was nudum pactum. Ashhurst J. speaking upon this point of subsequent promises by infants, in Cockshott v. Bennett, 2 T. R. 766, seems to confine their operations to securities. 'A security given by an infant, which is only voidable, may be revived by a promise after he comes of age. In such case he is bound in equity and conscience to discharge the debt, though the law could not compel him to do so; but he may wave the privilege of infancy which the law gives him for the purpose of securing him against the impositions of designing persons : and if he choose to wave his privilege, the subsequent promise will operate upon the preceding consideration.” It is clear, that if a bond be given by an infant during his minority, for the amount of a simple contract debt, not for necessaries, the giving of the specialty will so extinguish the simple contract debt as not to leave a sufficient consideration for an express promise after full age to operate upon, and consequently an assumpsit upon the original cause of action cannot be maintained. Tapper v. Davenant, 3 Keb. 798. and Bull. N. P. 155.
(66) Necessaries for an infant's wife are necessaries for him; but if provided for the marriage, he is not chargeable, though she uses them. Turner v. Trisby, per Pratt, C. J. London Sittings, E. 5 G. Str. 168. If an infant contract for the nursing of his lawful child, this contract is good and shall not be avoided by infancy, no more than if he had contracted for his own aliment or erudition. Bacon, Max. 18.
was for looking after the infant's horses, and that the work was necessary for the horses, on demurrer, the court held that the replication was bad; that it should have been a general replication, that the demand was for necessaries for the infant, and the rest should have been left to evidence, where the circumstances of the defendant's health and fortune would be considered: and the court added, that in this case, though the work might be necessary for the horses, yet it did not appear that the horses were necessary for the infant.
On a replication to this effect, viz. that the defendant, after he came of age, confirmed the promise, if the defendant rejoins that he did not, after he came of age, confirm the promise, it is sufficient for the plaintiff to prove the promise, and the defendant must prove infancy if he means to take advantage of it, because it will be presumed, that a person who contracts is of a proper age to contract until the contrary be shewn. Borthwick v. Carruthers, 1 T. R. 649. A replication of a new promise, after the defendant came of age, must be supported by evidence of an express promise; payment of part of the plaintiff's demand is not in this case tantamount to evidence of a new promise to pay the remainder, as it is to take a case out of the statute of limitations. Per Kenyon, C. J. in Thrupp v. Fielder, 2 Esp. N. P. C. p. 628. The promise also must be voluntary, and not extorted from the party under the terror of an arrest. Per Lord Alvanley, C. J. Harmer v. Killing, 5 Esp. N. P. C. 102. And now by stat. 9 G. 4 c. 14 s. 5, (Lord 'Tenterden's act,) no action shall be maintained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith.
Contracts entered into by infants for the maintenance of their trade are not binding on them. This rule has been established for the protection of infants against improvident acts, and that they may not incur losses by trading. Assumpsit for goods sold9 : plea infancy; replication, that the defendant bought the goods pro necessario victu et apparatu et ad manutentionem familiæ suæ : rejoinder, that the defendant kept a mercer's shop, and bought the goods in question to sell again. On demurrer, the court were of opinion, that this buying by the infant, though for the maintenance of his trade, by which
q Whittingham v. Hill, Cro. Jac. 494.