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CONTRACTS of hiring and service by infants—that is, by persons who have not attained the age of twentyone—are voidable at their option, unless they be for necessaries or for the benefit of the infants (a).
On coming of age an infant might, at Common Law, ratify a promise previously made by him so as to render it binding. The Legislature, however, has greatly limited the power of ratification. The Infants' Relief Act of 1874 (37 & 38 Vict., c. 62) enacts (s. 1) that, “ All contracts, whether by specialty or by simple contract, henceforth eutered into 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 infants, shall be absolutely void; provided always that this enactment shall not invalidate any contract into which any infant may, by any existing or future statute, or by the rules of Common Law or Equity, enter, except such as now by law are voidable." Section 2, which is of most consequence in this connection, says, “No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age.” It was decided in Coxhead
(a) Coke on Litt. 78 b.
v. Mullis (6)—an action for breach of promise of marriagethat the second section does not exclusively apply to such contracts as are mentioned or referred to in the first section; the section extends to contracts of hiring and service.
The chief exception at Common Law to the principle, that infants' contracts do not bind them, was in the case of contracts for necessaries, which include, according to Coke's explanation, “necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for good teaching or instruction whereby he (the infant) may profit himself afterwards,” (c) and which need not exclude many articles popularly known as luxuries. An infant will also be bound by contracts which are to his benefit or advantage (d); and it is for the Court to determine whether this is the case.
Contracts of hiring and service and appren
(b) (1878), L. R. 3 C. P. D. 439 ; ratification must be given voluntarily 47 L. J. C. P. 761 ; 39 L. T. 349; by a minor, and with full knowledge 27 W. R. 136 ; see also Northcote v. that he was released. Doughty (1879), L. R. 4 C. P. D. (c) Coke Litt. 172a. See Lord 385; Ex parte Kibble (1875), L. R. Mansfield's judgment in Zouch v. 10 Ch. 373; 44 L. J. B. 63. As Parsons (1765), 3 Bur. 1801 ; Bacon's to what will amount to a ratifica- Abridg. “ Infancy," I., 3, 360 ; tion of a contract, by an infant, see Skrine v. Gordon (1875), 9 Ir. C. Cornwall v. Hawkins (1872), 41 L. J. L. 479 ; Hill v. Arbon (1876), 34 Ch. 435 ; 26 L. J. 607 ; 20 W. R. L. T. 125; Hart v. Prater (1837), 653 ; infant entered into service of 1 Jur. 623 (riding-horse a necessary milk-seller, and covenanted not to for a chemist's apothecary, who was carry on same trade; and, after ordered by doctor to take riding coming of age, he continued in the exercise). As Kelly, C.B., pointed same service for eighteen months with. out in Ryder v. Wombwell (1868), out repudiating his promise. Held, L. R. 3 Ex. 90 (jewelled solitaires that this amounted to ratification. and a silver goblet necessaries for a In Birkin v. Forth (1875), 33 L. T. baronet's son), “necessaries” cannot 532, it was held that a minor, who be separated from “its legal adagreed on the 11th Dec., 1871, to junct, suitable to the estate and conserve for five years as a warehouse- dition of the infant." man, and who having attained the (d) “And an infant shall be age of 21 in April, 1873, continued bounden by all acts done by him in the service of his employers, did during his nonage, which acts are for not ratify his agreement by writing his advantage, if not in some special on the 17th of Jan., 1874 a letter cases ; and, therefore, if an infant at saying that he would give up his the years of discretion make a bond situation in twenty-eight days. Pro- for his necessary meats and drink, or bably the decision turned more on the for his necessary apparel, or for his fact that the Court relied on Harmer schooling, he shall not avoid the v. Killing (1804), 5 Esp. 102, which same. Perkins, C. I. S. 14. shows that a promise to bind as a
ticeship are prima facie regarded as for the benefit of infants (e). An infant who has bound himself as apprentice to one master cannot before the expiration of the period of service transfer his services to another (f). But if a contract of hiring and service between a minor and a person of full age be inequitable and prejudicial to the former it will not bind him (9). Thus a contract of hiring and service which subjects an infant to a penalty or forfeiture will not be binding (le).
There is no reason why an infant should not be a master (i). An infant may enter into a contract of hiring and service with his father or mother (k). A father cannot bind his son apprentice without his consent, and the son must execute the indenture. Parish apprentices were, in virtue of a special statute, exceptions to this rule (1).
(c) Pollock on Contracts, p. 65 of 3rd ed.
) R. v. Arundel (1816), 5 M. & S. 257 ; R. v. Chillesford (1825), 4 B. & C. 102 (infant who enters into a contract of apprenticeship will be liable to the statutory regulations applicable to master and servant); Wood v. Fenwick (1842), 10 M. & W. 195: “There can be no doubt that, generally speaking, a contract for an infant to receive wages for his labour is binding upon him." In Cooper v. Simmons (1862), 31 L. J. M. C. 138, Martin, B., & Wilde, B., state that a contract of service is binding on an infant unless it be manifestly not to his advantage. Must the contract, to be binding, be manifestly to the advantage of the infant, or is it binding unless it be manifestly to the prejudice of the infant? The rule is stated in the former way in R. v. Wigston (1824), 3 B. & C. 484, and in the latter way in Cooper v. Simmons, by Wilde, B. It is submitted that the first is correct.
(9) R. v. Lord (1850), 12 Q. B. 757 ; 17 L. J. M. C. 181 (an infant bound for twelve months not to engage in any other service or business during the whole time; the master free to stop work and wages when he thought fit; the servant liable to be dismissed for misconduct or disobedience, and, in the event of dismissal, to forfeit his wages; contract held void). Lcslie v. Fitzpatrick (1877), L. R. 3 Q. B. D. 229; 47 L. J. M. C. 22; 37 L. T. 461; where the Court of Queen's Bench refused to declare
void a contract by which an infant undertook to serve as an iron shipbuilder for five years, at weekly wages, with a proviso that, if the employers ceased to carry on business, or found it necessary to reduce their works, or in consequence of any accident, they might terminate the contract at fourteen days' notice. “If such provi. sions," it was said by the Court, in a passage which seems to furnish the true rule, were at the time common to labour contracts, or were in the then condition of the trade such as the master was reasonably justified in imposing as a just measure of protection to himself, and if the wages were a fair compensation for the services of the youth, the contract is binding, inasmuch as it was beneficial to him by securing him permanent employment and the means of maintaining himself.”
to conflict with Birkin v. Forth (1875), 33 L. T. N. S. 532.
(h) Coke, Litt. 172 a. ; Bacon's Abridg." Infancy,"I., 1, 356 ; Ayliff 1. Archdale, Cro. Eliz. 920 ; Russell v. Lec(14 Ch. ii.), 1 Lev. 86; Fisher v. Mowbray (1807), 8 East, 330, (infant not bound by bond bearing interest); Baylis v. Dineley (1815), 3 M. & S. 477. But see Wood v. Fenwick.
(i) Hands v. Slaney (1800), 8 T. R. 578; Chapple v. Cooper (1844), 13 M. & W. 252, 258, where Alderson, B., held that in certain circumstances a servant would be a neces. sary for an infant ; R. v. St. Petrox (1791), 4 T. R. 196 ; 2 Bott, 377, and Cald. 444.
An infant who is apprenticed cannot be sued upon the covenants in an indenture of apprenticeship, except by the custom of London (m). But apprentices have been always liable to certain statutory regulations (n).
(k) R. v. Chillesford (1825), 4 B. however, T. Smith's English Guilds, & C. 94.
209. (1) R. v. Cromford (1806), 8 East, 25; (n) Ex parte Davis (1794), 5 T. R. R. v. Ripon (1808), 9 East, 295 ; St. 715, decides that an infant, on Nicholas v. St. Botolph (1862), 31 L. coming of age, may disaffirm a conJ. M. C. 258. Compulsory apprentice- tract of apprenticeship. This case is ship abolished, 7 & 8 Vict. c. 101, said in Ex parte Gill (1806), 7 East, s. 13. An infant may have his name 376, to have been misreported. It affixed to the indenture by an agent ; was, however, affirmed in Wray v. R. v. Longnor (1833), 4 B. & Ad. West (1866), 15 L. T. 180, where it 647.
was laid down that an infant must (in) Bacon's Abridg., “Infancy” disaffirm his indentures within a A, 340 ; Gylbert v. Fletcher, Croke, reasonable time after coming of age. Car. 179; Jennings v. Pitman (19 In Moore v. Smith (1875), 39 J. P. Jac.), Hutton, 63; Lylly's Case (1 772, the Court of Queen's Bench was Anne), 7 Mod. 16. Nor could the asked to say whether this rule was minor be sued at equity, 1 Eq. C., altered by the Master and Servant Abridg. 6. The custom of London, Act, 1867; and the Court decided which was instituted for the promo- that it was not. It is cited as still tion of trade, is stated in various binding in text books ; e.g. Leake ways. Thus, in Burton v. Palmer on Contracts, 550 ; Smith's Mercan(11 James I.), 2 Buls. 191 : “An tile Law, 56. Nothing in the Eminfant within the age of fourteen ployers and Workmen Act, 1875, years;” in Walker v. Nicholson, apparently, affects the decision. Croke, Eliz. 652, “ Any infant above It was early decided that an infant, the age of twelve years ;” in Code v. though not liable to an action on Holmes (21 James I.), Palmer, 361, a the covenant of an indenture, was person bound at fourteen, if the in- subject to the statutory regulations denture be enrolled at Guildhall ; in affecting apprentices; that is to Hall v. Chandler (22 Chas. II.), 1 the 5 Eliz. c. 4. The contract of Mod. 271, “Any person above four- apprenticeship was treated as void. teen years, and under twenty-one, and able. R. v. St. Nicholas, Bur. Sc. unmarried ;” so in Eden's Case (1813), 91.
What more unequivocal way 2 M. & S. 226 (a return held de- of voiding such a contract than for fective because it failed to state that an apprentice to ruu away from his an apprentice was between the age of master? Yet in R. v. Evered, 16 fourteen and twenty-one.) By the cus- East, 27, and Gray v. Cookson (1812), tom of London apprentices might be 16 East, 13, this was held not to assigned. Viner's Abridg. Appren- be an efficient election so as to void tices,” F. It is stated by Holt, C. J., indentures, and prevent the justices in Winton v. Wilkes (4 Anne), 1 punishing runaway apprentices under Salk. 204, that no other cities than 20 Geo. II, c. 19, s. 4. The Courts London have such custom. See, were careful not to say that, in some
It is stated by Blackstone that a father may have the benefit of his children's labour while they live with him, and are maintained by him; but this is no more than be is entitled to from his apprentices or servants” (o). The authorities in English reports and text books on this subject are few (p). Blackstone cites none in support of his dictum, though probably it is correct. According to a series of decisions in the American Courts, the right to recover for the services of a minor is presumed to belong to the father, and he is entitled to the earnings of his children unless he has forfeited the right by misconduct or has expressly or by implication emancipated them (a). Accordingly payment of wages to a minor has been held to be no answer to an action by a father against an employer.
“ In consideration of this obligation on the part of the father to maintain his children," says Story, stating the effect of the American decisions, “the law gives him a right to all their earnings, and in case of his death the mother has the right” (r). This has been extended to adopted and illegitimate children. It is admitted in the American decisions,
way, an infant might not during infancy disaffirm a contract of apprenticeship. Gray v. Cookson, 16 East, p. 28; R. v. Hindringham (1796), 6 T. R. 558, and in such a manner as to make it wholly inoperative. The decision in Ex parte Davis was not based on any statutes affecting apprentices, and was, no doubt, intended to lay down a principle of Common Law. But is the implication that an infant cannot disaffirm before coming of age correct ? Bacon's Abridg. Infancy, 1, 2, 3, and 5; Nerry, dc., Railway Co. v. Coombe (1849), 3 Éx. 565; Parke, B., at P. 575; London and North-Western Railway Co. v. McMichael (1850), 5 Ex. 114 ; Dublin v. Wicklow Railway Co. (1852), 8 Ex. 181.
Å father or friend of the apprentice was usually made a party to in. dentures owing to the fact that an action on the covenants would not lie against the infant. Though the old
rule that infants cannot bind them. selves by covenants (Platt on Covenants, p. 111) is still in force, indentures are, as the cases cited above show, binding on infants for some purposes.
(0) 1 Com. 453. Apart from the Poor Laws, there is no obligation on the part of a father to maintain his child ; Mortimore v. Wright, 6 M. & W. 482 ; Bazeley v. Forder (1868), L. R. 3 Q. B. at 565 ; Cooper v. Martin (1803), 4 East, 76.
(p) The chief authority on the subject of the right of a father to a child's earnings is Ex parte Macklin (1755), 2 Ves. Sen. 675. (Father received child's earnings while living with him. He became bankrupt; the child sought to prove for amount received from her. Hardwicke, L. C., referred to the Commissioners to inquire how much received to the child's use.)
(9) Wood, p. 22.