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to be necessaries. Goods supplied to an infant must not only be suitable to his condition in life, but also to his actual requirements at the time of the sale and delivery, and the tradesman who supplies an infant who is already sufficiently supplied with similar articles does so at his own risk, as it was held in Nash v. Inman (1908) that it is incumbent on him to prove that the infant was not sufficiently supplied at the time in question. An infant is liable for necessaries supplied to his wife and children, in addition to necessaries supplied to himself.

Infant cannot bind Parent or Guardian.-As a general rule, an infant is not held liable for necessaries if he is still residing with his parents, but unless he has authority, express or implied, he cannot, even for necessaries, bind his parent or guardian. Such authority may, however, be implied on very slight evidence as, for instance, if he orders clothes which are sent to the parent's house and no objection is raised.

Infant cannot be sued on a Negotiable Instrument.-It should be noted that though an infant can enter into a contract to pay for necessaries, it was decided in In re Soltykoff (1891) that he cannot be sued on a Bill of Exchange or Promissory Note even if given for necessaries; nor, as laid down in Walter v. Everard, cited above, is he bound by a bond with a penalty, though given for such necessaries.

Recovery of Money paid. Whether an infant can recover moneys paid under a contract which he repudiates, or which is in itself void, depends on the question "Did the infant derive any real advantage from the contract?"; if he did, he cannot recover the money. For instance, in Corpe v. Overton (1833), an infant paid money with a view to a partnership but never entered into it, and the court ordered the return of the money. But, in Valentini v. Canali (1890), the infant had hired a house and purchased the furniture, for which he had paid only a part of the price, and he occupied the house for some considerable period. This contract fell partly under Section 1 of the Infant's Relief Act, so it was set aside; but, as the infant had used the furniture, it was held that the money already paid could not be recovered. And again, in Holmes v. Blogg (1818), an infant had occupied premises under a lease which he afterwards repudiated, and the court refused in consequence to order the return of the premium paid for the lease.

The infancy of one party to a contract does not affect the other party's liability, the plea of infancy being a privilege personal to the infant, so that the other party can alone be sued on the contract. But, as specific performance would not be granted against the infant, the latter cannot himself sue for

specific performance. An infant sues by his " next friend," who is responsible for his costs. He defends by his parent or guardian ad litem (for purposes of litigation), who is not so responsible. Prima facie the father is the infant's "next friend" or, in his absence, the testamentary guardian. But any other person may act as next friend provided he is not under disability and that he has no interest in the action adverse to that of the infant.


The law relating to married women has been drastically altered by the Married Women's Property Act, 1882, and the two subsequent Acts of 1884 and 1893, so that it is unnecessary to consider here the old Common Law capacity of married women, which is practically obsolete.

A married woman can now hold property as her own, and can enter into contracts as if she were a feme sole, that is, an unmarried woman; but this branch of the law is still far from satisfactory, for it should be noted that there is no remedy personally against a married woman; and she cannot be committed on a judgment summons for non-payment of a judgment debt, although she may be attached for non-payment of money which is in her possession in a fiduciary capacity. Her creditors have no remedy against her if she has no separate estate; and even where she has separate property it may be held in trust for her and she may be " restrained from anticipation," in which case it cannot be touched, even by a judgment, so long as she is a married woman. Where the restraint on anticipation " in a settlement has been made by the woman herself, it has no validity, however, against her ante-nuptial debts. By "restraint on anticipation" is meant where property is settled on a married woman without power of anticipation of the income or alienation of the capital, thus preventing the disposition of the property in favour of her husband or of any other person.

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A married woman can now contract with her husband in respect of her separate estate; but she could not formerly be made bankrupt unless she was trading apart from her husband. Now, however, by the Bankruptcy Act, 1914, a married woman who is a trader can be made a bankrupt even if not trading apart from her husband.

It was decided in Paquin v. Beauclerk (1906) that a married woman who contracts as agent is not liable to answer out of her separate estate, and it is immaterial whether the other party did or did not know that she was contracting as agent and was a married woman. The wife has an implied authority to bind her husband for necessaries, and for necessaries only, for herself

and her household, but this is liable to be rebutted by evidence showing that she is already well supplied. This and cognate matters will be more properly considered under the heading of AGENCY (r).

All these peculiar privileges cease on her becoming a widow, except that a judgment limited to her separate property does not, on the death of the husband, become a judgment upon which she is personally liable.

The husband is not responsible for the debts contracted by his wife before marriage.


Contracts (except for necessaries at a fair price) made with lunatics or persons under the influence of drink are voidable if the other party is, at the time of the contract, aware of the lunacy or drunkenness; otherwise they are binding. In the case of Imperial Loan Co. v. Stone (1892), A had signed a Promissory Note as surety and he was sued thereon by plaintiffs. In defence he pleaded that he was so insane at the time he signed the note as to be incapable of understanding the nature of the transaction, and the jury found that such in fact was the case. The question then arose as to whether it was necessary for the defendant to show that the plaintiffs knew of the state of his mind at the time, and it was held that he must do so, it being laid down that "a defendant who seeks to avoid a contract on the ground of his insanity must plead and prove not merely his incapacity, but also the plaintiff's knowledge of that fact, and unless he proves these two things he cannot succeed." In order, therefore, to repudiate such contracts, the lunatic or drunken person must show, not only that he was incapable of understanding what he was doing, but also that this condition was known to the other party at the time of entering into the contract. Such a contract may, however, be ratified when the person incapacitated recovers; but persons found lunatic by inquisition, i.e., on enquiry at the direction of the court, cannot, even during a lucid interval, enter into binding contracts.


Under the provisions of the Naturalisation Act, 1870, certain of which are re-enacted by the British Nationality and Status of Aliens Act, 1914, there is no difference in capacity between a natural-born or a naturalized British subject and an alien, except that an alien may not acquire any property in a British

(r) See post, p. 72.

ship. An alien enemy is, however, incapable of contracting, and his power to sue or to exercise rights in relation to property here is suspended during the continuance of a state of war. An "alien enemy" for the purposes of commercial relations is prima facie the subject of a State with which this country is at war, but there are very many exceptions, e.g., a subject of the enemy State may be residing here and trading under licence of the Crown, in which case he is not deemed an alien enemy. On the other hand, a British subject may, by residence or by adhering to the enemy State, render himself liable to be regarded as an alien enemy.

It was decided in Hugh Stevenson and Sons v. Aktien-Gesellschaft für Cartonnagen Industrie (1918) that a partnership between an Englishman and an alien is dissolved on the outbreak of war between this country and the country of which the alien is a national; but, if the alien partner's share of capital is continued to be used by the English partner in carrying on the business, the alien is not debarred from his rights under Section 42 of the Partnership Act, but he cannot sue thereon until after the conclusion of peace. But it was held in Porter v. Freudenberg (1915) and in Robson v. Premier Oil and Pipe Line Co. (1915) that an alien enemy may be sued, and that if he is so sued he may defend himself.

Foreign Sovereigns and States may enter into contracts with British subjects, but they cannot be sued thereon unless they consent. Under the Diplomatic Privileges Act, 1708, the same privilege applies to Ambassadors and their staffs.


A corporation is a legal entity which enjoys a distinctive name and perpetual succession, and usually a common seal. It may be either a corporation sole, i.e., one person, as for instance the parson of a parish, or it may be a corporation aggregate, i.e., composed of many persons. The latter may be created by Act of Parliament, or by a Charter of Incorporation, or Letters Patent granted by the Crown, or by incorporation under the Companies Acts.

A corporation aggregate is an artificial person and its capacity to contract is governed by the Statute, Charter or Memorandum of Association by which, and the purposes for which, it is constituted. But some powers are implied, e.g., unless expressly restricted, a trading corporation has implied power to borrow money for the carrying-on of its business. Any exercise of powers in excess of those laid down in the creating instrument is termed ultra vires (that is, beyond the powers), and any

contracts thus entered into are invalid. Thus, in Ashbury Railway Carriage Co. v. Riche (1875), the Memorandum of Association gave the company power to make and sell railway carriages, and the Articles of Association conferred express power to extend the company's business beyond the scope of the Memorandum by special resolution. The directors purchased a railway concession in Belgium and the company passed a special resolution to ratify the transaction. It was held that the purchase was bad. LORD CAIRNS said, "If every shareholder had been in the room and . . . had said that is a contract which we authorize the directors to make,' it would be void. The shareholders would thereby, by unanimous consent, have been attempting to do the very thing which by the Act of Parliament they were prohibited from doing."

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When Contracts under Seal necessary.-A corporation is supposed to make all contracts under seal, or through an agent so appointed, but there is an increasing tendency to regard contracts not under seal as valid if made in the ordinary course of business. There are certain classes of contracts which are now recognized as not requiring to be under seal. They are those of extreme urgency or of small importance, or of frequent occurrence.

There is an important provision in the Public Health Act, 1875, to the effect that the contracts of Urban Authorities must be under seal if over £50 in value. This is rigidly enforced, but only applies to those contracts made under the powers and for the purposes of the Act in question. Apart from this statutory rule, however, where a corporation makes contracts which are not governed by the Public Health Act and the work pertains to that for which the corporation has been created, the absence of a seal, even in important agreements, will not prevent a person who has done his part from successfully claiming the agreed price when once his work has been accepted by the corporation. But there is no such remedy for an executory contract, for the claim rests on the fact that the corporation has accepted a benefit and therefore ought to pay for it.

Companies governed by the Companies (Consolidation) Act, 1908, may, under Section 76 (1), only contract as authorized by the Articles of Association. The section provides that in the absence of any special provisions in the regulations that limit the powers

(i) Any contract which if made between private persons would be by law required to be in writing, and under seal, may be made on behalf of the company, in writing under the common seal of the company, and may in the same manner be varied or discharged.

(ii) Any contract which if made between private persons would be

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