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[suffer the church to be unserved, or the infant's right to be barred by lapse.] But except in the case of a guardian in socage, the infant's right of presentation will be exercised by his guardian (m). Where the guardian is guardian in socage, the guardian cannot present, but the infant's discretion will be controlled by the court (nu). So an infant may be sworn as a witness, however young, provided he understands the nature of an oath (0) ; and in proceedings under the Criminal Law Amendment Act, 1885, and the Prevention of Cruelty to Children Act, 1894, the evidence of a child of tender years, who in the opinion of the court does not understand the nature of an oath, may, subject to the provisions of those Acts, be admitted. At the age of twelve an infant may also take the oath of allegiance (p); and at the age of fourteen, if a male, or of twelve, if a female, may consent to marriage. Again, though infants cannot, as a general rule, so aliene or purchase estates but that the transaction shall be voidable at their pleasure, on their attainment of full age (9), yet they may make a feoffment at the age of fifteen of their gavelkind lands, provided that the feoffment is made upon an adequate consideration (r); and by the Infant Settlements Act, 1855 (s), any male infant of twenty years, or female infant of seventeen years, may, with the sanction of the court, make a valid and binding settlement either of real or personal estate, in contemplation of his or her marriage.
Again, although, as a general rule, an infant cannot enter into a contract that shall bind him, yet there are many exceptions to the rule. Regarding the contracts of infants, the law may be said to be as follows: (1)
(m) Hearle v. Greenbank (1749), i Ves. sen. 298, 304.
(n) 3 Inet. 156 ; Arthington v. Coverley (1732), 2 Eq. Ca. Ab. 518.
(0) Hale, P. C. 278.
(p) Co. Litt. 172 b.
(9) Ibid. 2 b; Zouch v. Parsons (1765), 3 Burr. 1794.
(r) Bac. iv. p. 49 (7th ed.); In re Maxkell and Goldfinch, [1895) 2 Ch. 5:25.
(*) 18 & 19 Vict. c. 43.
Contracts which are manifestly for the infant's benefit are valid (t); (2) Contracts not manifestly for the infant's benefit were, before the passing of the Infants' Relief Act, voidable at his option (u). It was sometimes added that contracts manifestly to the infant's prejudice were void ; but in the cases cited to establish this view, it appears that the word “void” was used in the sense of voidable, for it would clearly be unjust that the infant himself should not be able to sue upon the contract (x). Thus, an infant's contract to pay a penalty was not binding upon him (y); and his contract of service for a fixed period was unenforceable against him, where it contained a stipulation enabling the master to stop the work at pleasure, and during such period of suspension to stop also the wages (2). But an infant may apprentice himself in the ordinary form of such a contract, that being manifestly for his benefit (a); and an infant was held bound by a clause in a contract of employment, whereby he agreed to forego the rights given by the Employers' Liability Act, 1880, the contract as a whole being for the infant's benefit (b). An infant may bind himself to pay for his meat, drink, apparel, physic, and other such necessaries, and likewise for his good teaching and instruction, whereby he may profit himself afterwards (c). As a general rule all an infant's contracts for things called “ necessaries” supplied to him are binding upon him ; but he is liable only to pay a reasonable price therefor (d). In determining what shall be necessaries, regard is to be had
(1) Clements v. London and Vorth Western Railway Co., [1894) 2 Q. B. 482.
(u) Warwick v. Bruce (1813), 6 Taunt. 118.
(x) R. v. Lord (1848), 12 Q. B. 757 ; see Pollock, Contracts, 7th ed., p. 56.
(y) Co. Litt. 172 a.
(3) R. v. Lord, ubi sup. ; Meakin v. Morris (1884), 12 Q. B. D. 352.
(a) Wood v. Fenwick (1842), 10 M. & W. 195
(b) Clements v. L. & N. W. Ry. Co., ubi sup.
(c) Co. Litt. 172 a.
(d) Sale of Goods Act, 1893,
in each particular case to the infant's condition in life, and to his actual requirements at the time of the sale and delivery (e) ; and necessaries for him may include also necessaries for his wife (if any), and for his child or children (f). But an infant is not liable on his contracts for necessaries if supplied to him while living unmarried
under the roof of his parent, by whom his wants of this I nature are sufficiently provided for (9).
As regards the voidable contracts and dispositions of an infant, the law as it stood before the passing of the Infants' Relief Act, 1874, was, that a contract merely creating an obligation was unenforceable unless and until ratified by him on coming of age ; but where the infant had made a disposition of property (such as a settlement), or was subject to an obligation attached to an interest in property (as in the case of a lease or the holding of shares in a company), the infant would be bound, unless he repudiated within a reasonable time after coming of age (h).
This statement of the law must now be read subject to the provisions of the Infants' Relief Act, 1874 (i), by which it is provided (1) that all contracts by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries) and all accounts stated with them, shall be absolutely void ; and (2) that no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt (not being for necessaries) contracted during infancy, or upon any ratification made after full age of any promise
(e) Ryder v. Wombwell (1868), L. R. 4. Ex. 32; Barnes v. Toye (1884), 13 Q. B. D. 410; Johnston v. Marks (1887), 19 Q. B. D. 509; Sale of Goods Act, 1893, s. 2.
(f) Turner v. Trisby (1719), I Str. 168 ; cf. Chapple v. Cooper (1844), 13 M. & W. 252.
(9) Dalton v. Gibb (1839), 5 Bing. N. C. 198.
or contract made during infancy, whether there shall or shall not be any new consideration for the promise or ratification after full age (k). It should be noted that the second section of the Act has no application to cases in which the infant is liable in the absence of a repudiation made within a reasonable time after coming of age (l); but applies only to those which before the passing of the Act were unenforceable unless ratified.
But though infants are thus, to a certain extent, exempted from liability for mere breach of contract, the law allows them no such privilege in respect of injuries of any other kind; for not only are they answerable for crimes long before their attainment of full age, but an action also may be brought against them to recover damages for their torts (being injuries independent of contract), such as trespass, slander, and the like (m). But an infant is not liable for a wrong (such as deceit in representing himself to be of full age) which is so closely connected with a contract, that an action for such wrong would be an indirect method of enforcing the contract (n).
II. The different species of guardians. The guardianships recognised by our law are of the following varieties :
1. Guardianship by nature. This is said to belong to the father in respect of the person of his heir apparent, or of his heiress presumptive, there being, properly speaking, no other kind of guardianship by nature than this ; and the term natural guardian, as applied to the father or mother with reference to all their children, is rather a popular than a technical mode of expression. For when a
(k) Ex parte Kibble (1875), L. R. 10 Ch. 373 ; Coxhead v. Mullis (1878), 3 C. P. D. 439; North cote v. Doughty (1879), 4 C. P. D. 38.5; Ditcham v. Worrall (1880), 5 C. P. D. 410.
(1) Re Yeoland's Consols (1888),
58 L. T. 922; Edwards v. Carter, (1893] A. C. 360.
(m) Defries v. Daries (1835), 1 Bing. N. C. 692 ; Burnard v. Haggis (1863), 14 C. B. (N.s.) 45.
(1) Johnston v. Pye (1665), Sid. 258; Jennings v. Rundall (1799), 8 T. R. 335.
father's right to the person of a child who is not his heir apparent is intended, his guardianship is properly that next to be noticed (o). It has been doubted whether, since the abolition of tenures in chivalry, guardianship by nature can exist at all, in the strict sense of the term (p).
2. Guardianship for nurture.--This is a species of guardianship that applies to all the children, extending to the person only. It belongs to the father, and (at his decease) to the mother; and it lasts both with males and females only to the age of fourteen (9). The two species of guardianship above described, as distinguished from the parental right to the control and custody of an infant child, already dealt with in a previous chapter, appear to have no practical importance at the present day.
3. Guardianship in socage.—This is a species of guardianship wbich extends to the estate as well as to the person ; and it occurs only where the legal estate in lands held in socage descends upon an infant (r), in which case the guardianship devolves upon his next of blood to whom the inheritance cannot descend (s). For though proximity of blood is a natural recommendation to the office of guardian, the law judges it improper to trust the person of an infant in his hands, who may by possibility become the heir (t). Guardianship in socage, like that for nurture, continues only until the minor is fourteen years of age, except in the case of lands held in gavelkind, where the office lasts a year longer (u).
4. Guardianship by statute (commonly called testamentary guardianship).—By the 12 Car. II. (1660), c. 24, a father may, by deed or will, dispose of the custody of such