Money paid by infant

under a contract.

when he became indebted, he was an infant, was held bad; because it showed that the interest in the shares remained vested in him, and the obligation to pay was incident to the interest in the shares (a). Nor, in such case, is it sufficient for the defendant to plead, besides the infancy at the time of acquiring the shares, that he had derived no advantage from them, and had never ratified or confirmed the purchase of them (b).

But where the defendant, charged by a railway company with calls on shares, pleaded that he became the holder of the shares under the subscription contract, and that at the time of contracting he was an infant, and that while he was an infant he repudiated the contract, and gave notice to the company that he held the shares at their disposal, the plea was held good; because it showed that the defendant had done all he could to disclaim the shares, and that his name remained on the register only by the fault of the plaintiffs in not striking it out (c).

Where an infant has paid money under a contract for which the consideration remains executory, he may repudiate the contract and recover the money paid, as upon an entire failure of consideration (d). Thus, a minor having signed a written agreement to purchase a share of a business at a certain price, and to pay down part of the purchase money as a deposit, which was to be forfeited on breach of the agreement, he was held entitled on coming of age, having then taken no benefit under the agreement, to repudiate it altogether, and to recover the amount of the deposit, in an action for money received for his use (e).

But if the infant has in part received the consideration, though he may disaffirm the contract, he cannot recover the money paid under it, because the failure of consideration is not complete. Thus, an infant having paid a sum as a premium for a lease, which he enjoyed during his minority, but avoided after coming of age, it was held that, though

(a) Cork and Bandon Ry. Co. v. Cazenove, 10 Q. B. 935; Birkenhead Railway Co. v. Pilcher, 5 Ex. 121.

(b) North-Western Ry. Co. V. M'Michael, 5 Ex. 114.

(c) Newry and Enniskillen Ry. Co. v. Coombe, 3 Ex. 565.

(d) See ante, p. 60.

(e) Corpe v. Overton, 10 Bing. 252.

he might avoid the lease and escape the burden of the rent and covenants, he could not recover the sum paid as a premium, because he had partially enjoyed the consideration for it (a); and where an infant had paid a sum of money for admission into a partnership and had executed the deed of partnership and acted as partner, receiving money out of the profits, he was held not to be entitled to recover the money (b). So, though an infant who buys things, not necessaries, cannot be compelled to pay for them; yet, having paid for them, he cannot recover back the money (c).

after full

, age.

A person after attaining the age of twenty one years may Ratification ratify and confirm a contract made by him during infancy, and so make it absolutely binding (). "The principle on which the law allows a party, who has attained his age of twenty-one years, to give validity to contracts entered into during his infancy is, that he is supposed to have acquired the power of deciding for himself, whether the transaction in question is one of a meritorious character, by which in good conscience he ought to be bound" (e).

By Lord Tenterden's Act, 9 Geo. IV. c. 14, s. 5, it is enacted, "that 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." The Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, has not taken away the necessity of the ratification being signed by the party himself; although it has done so in the analogous case of promises to pay debts. barred by the Statute of Limitations, by giving effect to such promises when signed by an agent of the party (ƒ).

The ratification of a promise made during infancy has

(a) Holmes v. Blogg, 8 Taunt. 508. (b) Ex p. Taylor, 8 De G. M. & G. 254; 25 L. J. B. 35.

(c) Per Lord Kenyon, Wilson v. Kearse, Peake Ad. Ca. 197.

(d) Cohen v. Armstrong, 1 M. & S.

724;

Williams v. Moor, 11 M. & W. 256, 266.

(e) Williams v. Moor, 11 M. & W. 256, 264.

(f) See s. 13; post, Chap. IV, Seet. XI," Limitations."

Ratification after

full age.

Ratification

property.

been compared to the ratification of an act of an agent, and it has been laid down that, apart from Lord Tenterden's Act, "any act or declaration which recognises the existence of the promise as binding is a ratification of it, as, in the case of agency, anything which recognises as binding an act done by an agent, or by a party who has acted as agent, is an adoption of it;" and that under Lord Tenterden's Act, "any written instrument signed by the party, which in the case of adults would have amounted to the adoption of the act of a party acting as agent, will in the case of an infant who has attained his majority amount to a ratification" (a). A writing signed by the defendant containing an admission of the debt, was held sufficient to satisfy the statute, although without address, or date, and not stating the amount of the debt, or the name of the creditor, these matters being supplied by parol evidence (b). A ratification will be presumed to have been made after full age in the absence of evidence to the contrary (c). If the original contract made by the infant was by deed, it can only be ratified by deed, or by something amounting to an estoppel in law of as high authority as the deed itself (d).

In cases where the infant has by means of contract become of liability incident to possessed of property having obligations and liabilities incident to it which he might disaffirm on coming of age, he should do so within a reasonable time, otherwise the fact of retaining possession of the property may operate as a confirmation of the transaction (e). Thus, an infant who takes a lease of land, by continuing in possession after coming of age, affirms the contract, and is liable for the rent and covenants (f). So, if an infant makes a lease, and accepts rent after coming of age, he thereby affirms the lease, and precludes himself from avoiding it on the ground of infancy (g).

(a) Harris v. Wall, 1 Ex. 122, 130; and see Mawson v. Blane, 10 Ex. 206. (b) Hartley v. Wharton, 11 A. & E. 934; Hunt v. Massey, 5 B. & Ad. 902. (c) Hartley v. Wharton, supra.

(d) Baylis v. Dineley, 3 M. & S. 477. (e) See ante, p. 227; Dublin & Wicklow Ry. Co. v. Black, 8 Ex. 181; Cork & Bandon Ry. Co. v. Cazenove,

10 Q. B. 935; Holmes v. Blogg, 8 Taunt. 35.

(f) Kirton v. Eliott, 2 Bulstr. 69; S. C. nom. Kelley's case, Brownl. 120; nom. Ketsey's case, Cro. Jac. 320; see Baylis v. Dineley, 3 M. & S. 477, 481.

(g) Ashfield v. Ashfield, Sir W. Jones, 157.

An infant who has been admitted to a copyhold estate, and has retained possession after coming of age, affirms the admittance, and is liable for the fines due upon it (a). An infant who was registered as the holder of shares in a company, by permitting his name to continue registered after he came of age, was held to have ratified his ownership of the shares (b). So, an infant member of a partnership, who did nothing to disaffirm the partnership upon coming of age, was held to continue as partner, and to be liable on contracts subsequently made by the firm (c). The ratification may be made upon a condition or to a Limited and limited extent. Thus, a person may promise to pay a debt ratification. incurred during infancy "when he is able;" and such new promise is binding upon him conditionally on his becoming able to pay (d).

conditional

contract.

A contract made with an infant, although voidable by the Right of infant, is binding on the other party to it until avoided; and infant on it cannot be avoided by him on the ground of the infancy of the person with whom he has contracted. In an action on a contract containing mutual promises of marriage, the defendant pleaded the infancy of the plaintiff; but the Court held that the contract was not void, but only voidable at the election of the infant; and that, though the infant has the privilege of election, the party with whom he has contracted has not, but is bound to the infant (e). It is not necessary for an infant to wait until he comes of age in order to bring an action upon a contract; he may sue upon it, by his next friend, during his minority (ƒ). But a Court of Equity will not grant specific performance of a contract in favour of an infant, because the remedy is not mutual (g); after the infant has come of age and has adopted the contract, he may obtain specific performance ().

(a) Evelyn v. Chichester, 3 Burr. 1717.

(b) Cork & Bandon Ry. Co. v. Cazenove, 10 Q. B. 935; and see Dublin & Wicklow Ry. Co. v. Black, 8 Ex. 181.

(c) Goode v. Harrison, 5 B. & Ald. 147.

(d) Cole v. Saxby, 3 Esp. 160.
(e) Holt v. Clarencieux, 2 Str.

937.

(f) Warwick v. Bruce, 2 M. & S. 205.

(g) Flight v. Bolland, 4 Russ. 298. (h) Clayton v. Ashdown, 9 Vin. Abr. 393, pl. 4.

Contract of An infant may validly contract to pay for necessaries supnecessaries. plied to him suitable to his condition in life.

infant for

"An infant

may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himself afterwards" (a).

The principles upon which the law determines what are necessaries for which an infant may validly contract to pay are explained in the judgment in the case of Chapple v. Cooper, as follows:-"Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging, and the like. About these there is no doubt. Again, as the proper cultivation of the mind is as expedient as the support of the body, instruction in art or trade, or intellectual, moral, and religious information. may be a necessary also. Again, as man lives in society, the assistance and attendance of others may be a necessary to his well-being. Hence attendance may be the subject of an infant's contract. Then the classes being established, the subject-matter and extent of the contract may vary according to the state and condition of the infant himself. His clothes may be fine or coarse according to his rank; his education may vary according to the station he is to fill; and the medicines will depend on the ills with which he is afflicted, and the extent of his probable means when of age. So, again, the nature and extent of the attendance will depend on his position in society; and a servant in livery may be allowed to a rich infant, because such attendance is commonly appropriated to persons in his rank of life. But in all these cases, it must first be made out that the class itself is one in which the things furnished are essential to the existence and reasonable advantage and comfort of the infant contractor. Thus, articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. So, contracts for charitable assistance to others, though highly to be praised, cannot be allowed to be binding, because they do not relate to his own personal advan

(a) Co. Lit. 172 a.