the agreement was to accept a composition of 10s. in the pound, payable by instalments on certain days, and a plea, which did not state that the instalments were paid, or a tender of them made at the stipulated times, although it did state a general readiness and willingness to pay the total amount of the composition, was held bad after verdict. That a tender of the instalments would have been sufficient, see Bradley v. Gregory, 2 Camp. 283. That such a tender may be dispensed with by the defendant, see Reay v. White, 1 C. & M. 748. 4. Infancy. 4. Infancy. The defendant may plead that he was an infant at the time of making the promise (2). This privilege of avoiding contracts, which the law confers on such as enter into them during their minority, i. e. (by the law of England) within the age of 21 years, is a personal privilege, the benefit of which must be claimed by the infant, and which cannot be exercised for him by any other person (a). The plea of infancy ought not to be pleaded by attorney, but by guardian; for an infant cannot appoint an attor ney (b). In cases where the contract declared on by the plaintiff has been made with the infant for necessaries suitable to his estate and degree, the plea of infancy will not operate as a bar to the plaintiff's demand; for the law permits an infant to bind himself, either by simple contract or single bill (c), for necessaries (d), (viz.) necessary meat, drink, apparel, physic, instruction, and the like; and an infant is capable of entering into a contract not merely for necessaries for ready money, but into any reasonable contract for necessaries, although he may have an income allowed to him sufficient to supply him with necessaries (e). Hence it frequently becomes a question what are necessaries. In an action for goods sold and delivered, it appeared that the goods in question were a livery for a servant of the defendant, who was a captain in the army, and cockades for some of the soldiers belonging to his company. The defendant relied on his infancy, insisting that the goods in question were not within the description of necessaries. On a motion for a new trial, Lord Kenyon, Č. J., said, that the cockades could not be considered as necessaries for the defendant, and ought not to have been included in the damages; but with respect to the livery, he could not say that it was not (z) Payment of money into court will not preclude a defendant from availing himself of his infancy, because the money may have been paid into court for necessaries. Hitchcock v. Tyson, 2 Esp. 481, n. (a) Per Eyre, C. J., in Keane v. Boycott, 2 H. Bl. 515. "If an infant is the owner of houses, it is necessary to have them kept in repair, and yet the contract to repair them will not bind the infant; for no contracts are binding on infants, except such as concern their person. Per Haughton, J., 2 Roll. R. 271. (b) Bird v. Pegg, 5 B. & Ald. 428. See Morgan v. Thorne, 9 Dowl. 228. (c) Russell v. Lee, 1 Lev. 86, 87. Such an instrument, which was very rare in 1808, is now obsolete. See note to Williamson v. Watts, 1 Campb. 553. (d) 1 Inst, 172, a. (e) Burghart v. Hall, 4 M. & W. 727. necessary for a person in the situation of defendant to have a servant; and if it was proper for him to have one, it was necessary that the servant should have a livery. The Chief Justice added, that, however inclined he was in general to protect infants against improvident contracts, yet he thought this case fell within the fair liability which the law imposed on infants, of being bound for necessaries, which was a relative term, according to their station in life (ƒ). So in Ford v. Fothergill, 1 Esp. 212, Lord Kenyon, C. J., said, that the question of necessaries was a relative fact to be governed by the fortune or circumstances of the infant, and that proof of these circumstances lay on the plaintiff. "All such articles as are purely ornamental are not necessary, and are to be rejected, because they cannot be requisite for any one, and for such matters an infant cannot therefore be made responsible. But if they are not strictly of this description; then the question arises, whether they were bought for the necessary use of the party, in order to support himself properly in the degree, state and station of life in which he moved; if they were, for such articles an infant may be responsible: and it is for the jury to decide whether the articles are of such a description or not" (g). Evidence is admissible to show that the infant was already supplied with the articles in question (h). Dinners, confectionary, or fruit, supplied to an infant, an under-graduate in the university, having lodgings in the town, without any explanation of the circumstances under which they were supplied, have been held not to be necessaries (i). And so of the hire of horses, gigs, &c., to an infant under similar circumstances (k). Infancy is a good defence to an action on the warranty of a horse (1). A copyhold estate devolved on the defendant, when he was an infant of six years of age, whereupon he was admitted, and a fine duly assessed. Two years after the defendant (who had continued in possession from the time of his admission) came of age, an action was brought for the fine, and verdict for the plaintiff. A question was made for the opinion of the court, whether this action would lie against the defendant, he being a minor at the time of the fine being assessed. The court were of opinion, that the action would well lie; and Yates, J., said, that if assumpsit had been brought against the infant during his minority, he should have thought it maintainable; that an infant might contract for necessaries, à fortiori, therefore, for a fine which was due on admission, without which the infant could not have received the rents and profits (m). But in this case it was clear beyond doubt, for the defendant had con (f) Hands v. Slaney, 8 T. R. 578. (g) Per Parke, B., in Peters v. Fleming, 6 M. & W. 47, where the plaintiff recovered in an action for a watch, watchchain, &c., the defendant being an undergraduate of Cambridge. (h) Steedman v. Rose, C. & Marsh. 422; post, pp. 142, 143. (i) Brooker v. Scott, 11 M. & W. 67; Wharton v. Mackenzie, 6 Q. B. 606. (k) Harrison v. Fane, 1 M. & G. 550. (1) Howlett v. Haswell, 4 Camp. 118. (m) Acc. per Tindal, C. J., 1 M. & G. 553. firmed the contract by his enjoyment of the estate two years after he came of age (n). An infant widow is liable upon a contract by her, for her deceased husband's funeral expenses, as such a contract may be considered as made for her personal benefit; "the ground of the decision in this case arises out of the infant's previous contract of marriage; it will not therefore follow, that an infant child, or more distant relation, would be responsible upon a contract for the burial of his parent or relative" (o). On the same ground, viz., that man and wife are 66 persone conjunctæ," necessaries for an infant's wife are necessaries for him; but if provided in order for the marriage, he is not chargeable, though she uses them. Turner v. Trisby, 1 Str. 168. So if an infant contract for the nursing of his lawful child, this contract is good, and shall not be avoided by infancy, no more than if he had contracted for his own aliment or erudition. Bacon, Max. 18. If goods, not necessaries, are delivered to an infant, who after full age ratifies the contract by a promise to pay, he is bound; Southerton v. Whitlock, Str. 690; but such a ratification cannot, it seems, be made by his executor; Stone v. Wythipoll, Cro. Eliz. 126, where it was held, that the simple contract of an infant, not being for necessaries, was void, and consequently, that a promise by his executor to pay in consequence of forbearance was nudum pactum. By saying that the contract of an infant was void, the court must have meant void under the circumstances of that case, the infant having died before any ratification of it; just as primâ facie evidence is conclusive evidence, if not rebutted; for it is clear that the contract of an infant is not void but voidable only (p). "A security given by an infant, which is only voidable, may be revived by a promise after he comes of age. In such case he is bound in equity and conscience to discharge the debt, though the law could not compel him to do so; but he may waive the privilege of infancy which the law gives him for the purpose of securing him against the impositions of designing persons; and, if he choose to waive his privilege, the subsequent promise will operate upon the preceding consideration" (q). But if a bond be given by an infant during his minority, for the amount of a simple contract debt, not for necessaries, the giving of the specialty will so extinguish the simple contract debt as not to leave a sufficient consideration for an express promise after full age to operate upon, and consequently an action upon the original simple contract cannot be maintained. (n) Evelyn v. Chichester, 3 Burr. 1717. In the report of this case in Bull. N. P. 154, it is stated that the defendant was admitted on coming of age. See 11 Geo. IV. & 1 Will. IV. c. 65, s. 6. (p) Per Abbott, C. J., in R. v. Chillesford, 4 B. & C. 100; Warwick v. Bruce, 2 M. & S. 205; Williams v. Moore, 11 M. & W. 256. (q) Per Ashurst, J., in Cockshott v. Bennett, 2 T. R. 766; acc. Gibbs v. Merrill, 3 Taunt. 312. Capper v. Davenant, Bull. N. P. 155. See Baylis v. Dineley, 3 M. & S. 476. By 9 Geo. IV. c. 14, s. 5 (commonly called Lord Tenterden's Act) -"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 above section, it will be observed, makes a distinction between a new "promise," and a "ratification," (see infra). "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" (r). A promise or ratification made by an agent would not be (semble) sufficient (s). A written promise by an infant after he comes to full age is sufficient under the above section, although it neither contains the name of the creditor, the amount due, or the date, and parol evidence is admissible to supply those particulars (t). A replication in a general form, that the articles provided were necessaries, without stating how, or in what manner, they were necessaries, will be sufficient to bar the plea of infancy (u). It should however appear on the face of the replication, that they were necessaries for the infant (x). A party may, after he attains his age of twenty-one years, ratify and so make himself liable on contracts made during infancy; and this may be done on a contract arising on an account stated as well as on any other contract (y). If the defendant takes issue on a replication that he confirmed. the promise, after he came of age, it is sufficient for the plaintiff to prove the promise, and the defendant must prove infancy if he means to take advantage of it, because it will be presumed, that a person who contracts is of a proper age to contract, until the contrary be shown (2). A replication of a new promise, after the defendant came of age, must be supported by evidence of an express promise; Thrupp v. Fielder, 2 Esp. 628; (and in writing, signed by the party to be charged therewith; 9 Geo. IV. c. 14, s. 5, supra;) but evidence which is not sufficient to support a new promise may amount to ratification of the old one; Harris v. Wall, 1 Exch. 130. Payment of part of the plaintiff's demand, though evidenced by writing, would not, it seems, be sufficient evidence (r) Per Cur. Harris v. Wall, 1 Exch. 122. See Mawson v. Blane, 10 ibid. 208. (8) Hyde v. Johnson, 2 B. N. C. 776. (t) Hartley v. Wharton, 11 A. & E. 934. (u) Huggins v. Wiseman, Carth. 110. (x) Clowes v. Brooke, Str. 1101. (y) Williams v. Moor, 11 M. & W. 256. (z) Borthwick v. Carruthers, 1 T. R. 649; Hartley v. Wharton, 11 A. & E. 934. of a new promise to pay the remainder, as it is to take a case out of the statute of limitations. Thrupp v. Fielder. The promise also must be voluntary, and not extorted from the party under the terror of an arrest, or given in ignorance of the protection the law afforded him. Harmer v. Killing, 5 Esp. 102. Contracts entered into by infants for the maintenance of their trade are not binding on them. This rule has been established for the protection of infants against improvident acts, and that they may not incur losses by trading. Assumpsit for goods sold: plea infancy; replication, that the defendant bought the goods pro necessario victu et apparatu et ad manutentionem familiæ suæ; rejoinder, that the defendant kept a mercer's shop, and bought the goods in question to sell again. On demurrer, the court were of opinion, that this buying by the infant, though for the maintenance of his trade, by which he gained his living, should not bind him (a). So in Whywall v. Champion, Str. 1083, it was ruled by Lee, C. J., that tobacco sent to the defendant, who had set up a shop in the country, could not be recovered for as necessaries, the defendant appearing to be an infant; for the law would not suffer him to trade, which might be his undoing. So where in an action for work and labour, to which the defendant pleaded infancy, it appeared that the plaintiff was a writing painter, and the defendant a painter and glazier, and the work done by the plaintiff was painting and gilding letters for the defendant's customers; Lord Kenyon, C. J., said, the law would not allow an infant to trade, therefore an action could not be maintained against him for work done in the course of it (b). But there is no distinction between contracts by infants for the purposes of trade and other contracts, not for necessaries; they are voidable only, and may be ratified after the infants come to full age (c). Where the plaintiff declared against the defendants, being merchants, upon a bill of exchange drawn by the defendants; one of the defendants pleaded infancy. On demurrer, the plea was held good, for the infant was a trader, and the bill was drawn in the course of trade, and not for any necessaries (d). It has been held, that an infant cannot bind himself even for necessaries by his acceptance of a bill of exchange (e). If an infant is living under the roof of his parent, who provides (a) Whittingham v. Hill, Cro. Jac. 494. (b) Dilk v. Keighley, 2 Esp. 480; but see Anon., Bull. N. P. 154. (c) Per Parke, B., Williams v. Moor, 11 M. & W. 258; Warwick v. Bruce, 2 M. & S. 205. (d) Williams v. Harrison, Carth. 160. Before the Common Law Procedure Act, 1852, if an action was brought against partners, or joint contractors, and one of them pleaded infancy, the plaintiff was obliged to discontinue the first action, and proceed de novo against the others. Jaffray v. Fairbain, 5 Esp. 47. See notes to Salmon v. Smith, 1 Wms. Saund. 206. Under the 37th section of that act, however, such a misjoinder is amendable at or before the trial; Greaves v. Humphreys, 4 E. & B. 851; not afterwards, Robson v. Doyle, 3 ibid, 396. (e) Williamson v. Watts, 1 Campb. 552. |