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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 entered 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 (b)—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

(6) (1878), L. R. 3 C. P. D. 439; 47 L. J. C. P. 761 ; 39 L. T. 349; 27 W. R. 136 ; see also Northcote v. Doughty (1879), L. R. 4 C. P. D. 385; Ex parte Kibble (1875), L. R. 10 Ch. 373 ; 44 L. J. B. 63. As to what will amount to a ratification of a contract, by an infant, see Cornwall v. Hawkins (1872), 41 L. J. Ch. 435 ; 26 L. J. 607 ; 20 W. R. 653 ; infant entered into service of milk-seller, and covenanted not to carry on same trade ; and, after coming of age, he continued in the same service for cighteen months without repudiating his promise. Held, that this amounted to ratification. In Birkin v. Forth (1875), 33 L. T. 532, it was held that a minor, who agreed on the 11th Dec., 1871, to serve for five years as a warehouseman, and who having attained the age of 21 in April, 1873, continued in the service of his employers, did not ratify his agreement by writing on the 17th of Jan., 1874 a letter saying that he would give up his situation in twenty-eight days. Probably the decision turned more on the fact that the Court relied on Harmer v. Killing (1804), 5 Esp. 102, which shows that a promise to bind as a

ratification must be given voluntarily by a minor, and with full knowledge that he was released.

(c) Coke Litt. 1720. See Lord Mansfield's judgment in Zouch v. Parsons (1765), 3 Bur. 1801 ; Bacon's Abridg. · Infancy, I., 3, 360 ; Skrine v. Gordon (1875), 9 Ir. C. L. 479 ; Hill v. Årbon (1876), 34 L. T. 125; Hart v. Prater (1837), 1 Jur. 623 (riding-horse a necessary for a chemist's apothecary, who was ordered by doctor to take riding exercise). As Kelly, C.B., pointed out in Ryder v. Wombwell (1868), L. R. 3 Ex. 90 (jewelled solitaires and a silver goblet necessaries for a baronet's son), “necessaries' cannot be separated from “its legal ad. junct, suitable to the estate and condition of the infant."

(d) And an infant shall be bounden by all acts done by him during his nonage, which acts are for his advantage, if not in some special cases; and, therefore, if an infant at the years of discretion make a bond for his necessary meats and drink, or for his necessary apparel, or for his schooling, he shall not avoid the

Perkins, C. I. S. 14.


ticeship are primâ fucie 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 (). 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 (g). 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).


(e) Pollock on Contracts, p. 65 of 3rd ed.

) R. v. Arundel (1816), 5 M. & $. 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 disinissed for misconduct or disobedience, and, in the event of dismissal, to forfeit his wages ; contract held void). Leslie 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."

This seems

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 ; Aylif r. Archdale, Cro. Eliz. 920 ; Russell v. Lee (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 circum. stances 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).


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(k) R. v. Chillesford (1825), 4 B. & C. 94.

(1) R. v. Cromford (1806), 8 East, 25; R. v. Ripon (1808), 9 East, 295 ; St. Nicholas v. St. Botolph (1862), 31 L. J. M. C. 258. Compulsory apprenticeship abolished, 7 & 8 Vict. c. 101, s. 13. An infant may have his name affixed to the indenture by an agent ; R. v. Longmor (1833), 4 B. & Ad. 647.

(m) Bacon's Abridg., “Infancy' A, 340 ; Gylbert v. Fletcher, Croke, Car. 179; Jennings v. Pitman (19 Jac.), Hutton, 63; Lylly's Case (1 Anne), 7 Mod. 16. Nor could the minor be sued at equity, 1 Eq. C., Abridg. 6.

The custom of London, which was instituted for the promotion of trade, is stated in various ways. Thus, Burton v. Palmer (11 James I.), 2 Buls. 191 : “An infant within the age of fourteen years;” in Walker v. Nicholson, Croke, Eliz. 652, Any infant above the age of twelve years ;” in Code v. Holmes (21 James I.), Palmer, 361, a person bound at fourteen, if the indenture be enrolled at Guildhall; in Hall v. Chandler (22 Chas. 11.), 1 Mod. 271, “Any person above fourteen years, and under twenty-one, and unmarried ;” so in Eden's Case (1813), 2 M. & S. 226 (a return held de. fective because it failed to state that an apprentice was between the age of fourteen and twenty-one.) By the custom of London apprentices might be assigned. Viner's Abridg. “ Apprentices," F. It is stated by Holt, C. J., in Winton v. Wilkes (4 Anne), i Salk. 204, that no other cities than London have such custom. See,

however, T. Smith's English Guilds, 209.

(n) Ex parte Davis (1794), 5 T. R. 715, decides that infant, on coming of age, may disaffirm a contract of apprenticeship. This case is said in Ex parte Gill (1806), 7 East, 376, to have been inisreported. It was, however, affirmed in Wray v. West (1866), 15 L. T. 180, where it was laid down that an infant must disaffirm his indentures within reasonable time after coming of age. In Moore v. Smith (1875), 39 J. P. 772, the Court of Queen's Bench was asked to say whether this rule was altered by the Master and Servant Act, 1867; and the Court decided that it was not. It is cited as still binding in text books ; c.g. Leake on Contracts, 550 ; Smith's Mercantile Law, 56. Nothing in the Em. ployers and Workmen Act, 1875, apparently, affects the decision. It was early decided that an infant, though not liable to an action on the covenant of an indenture, was subject to the statutory regulations affecting apprentices; that is to the 5 Eliz. c. 4. The contract of apprenticeship was treated as void. able. R. v. St. Nicholas, Bur. Sc. 91. What more unequivocal way of voiding such a contract than for an apprentice to ruu away from his master? Yet in R. v. Evered, 16 East, 27, and Gray v. Cookson (1812), 16 East, 13, this was held not to be an efficient election so as to void indentures, and prevent the justices punishing runaway apprentices under 20 Geo. II. c. 19, s. 4. The Courts 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 (9). 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” (). This has been extended to adopted and illegitimate children. It is admitted in the American decisions,

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way, an infant might not during
infancy disaffirm a contract of ap-
prenticeship. 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 inopera-
tive. The decision in Ex parte Davis
was not based on any statutes affect-
ing apprentices, and was, no doubt,
intended to lay down a principle of
Common Law. But is the implica-
tion that an infant cannot disaffirm
before coming of age correct ? Bacon's
Abridg. Infancy, 1, 2, 3, and 5;
Neury, dc., Railway Co. v. Coombé
(1849), 3 Ex. 565 ; Parke, B., at
p. 575 ; London and North-Western
Railway Co. v. McMichael (1850),
5 Ex. 114 ; Dublin v. Wicklow Rail-
way 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, 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.
(r) Contracts, sec. 142.

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