course when the infant does not mean to stand by his contract; and his confirmation of the act or deed of his infancy may be justly inferred against him after he has been of age for a reasonable time, either from his positive acts in favor of the contract, or from his tacit assent under circumstances not to excuse his silence. In Curtin v. Patton, (a) the court required

to require from the infant some positive act of disaffirmance after he comes of age, of a sale of lands. If it be a feoffment with livery, it may be avoided by entry, or by writ dum fuit infra ætatem. If by deed of bargain and sale, it might be avoided by another deed of bargain and sale made to a third person without entry, if the land be vacant. And in all other cases, if there be no conveyance to a third person, there must be an actual entry for the express purpose of disaffirming the deed, or he must do some other act of equal notoriety and efficiency.2

(a) 11 Serg. & Rawle, 305. In Kline v. Beebe, 6 Conn. Rep. 494, this subject was very fully discussed and considered, and it was held that there were three modes of affirming the voidable contracts of infants when they arrived at full age. 1. By an express ratification. 2. By acts which reasonably imply an affirmance. 3. By the omission to disaffirm within a reasonable time.3 This is the rule also declared in Richardson v. Boright, 9 Vermont Rep. 368, and essentially in Hoit v. Underhill, 9 N. H. Rep. 439; and it may here be observed generally, that to give validity to a voidable contract by the ratification of the party, the party must be fully apprised of his rights, and do the act deliberately and upon examination. By the English statute of May 9th, 1828, entitled "an act for rendering a written memorandum necessary to the validity of certain promises and engagements," an infant is not chargeable upon

1 Acts of confirmation by an infant are required to be made with a knowledge that he is not liable on the contract. Hinely v. Margaritz, 3 Barr's R. 428. Norris v. Vance, 3 Rich. R. 164. See, also, Smith v. Kelley, 13 Met. R. 309.

2 Dominick v. Michael, 4 Sandf. 374. In Pitcher v. Laycock, 7 Porter, (Ind.) 398, it is held, that, an infant's conveyance by bargain and sale, may be disaffirmed after his arrival at full age by a conveyance without entry, though the lands be not vacant. In Georgia, by virtue of the statute 32 Hen. VIII. the execution of the later deed of conveyance does not of itself avoid the former, if the lands be held adversely. Harrison v. Adcock, 8 Georg. 68. In Illinois, proceedings to revoke a conveyance must be commenced within three years after the infant becomes of age. Cole v. Pennoyer, 14 Ill. 158.

3 Moore v. Abernathy, 7 Blackf. R. 442. Cresinger v. Welch, 15 Ohio R. 156. Dublin and Wicklow R. Co. v. Black, 16 Eng. L. & Eq. 556. The American editors, in a learned note to this case, have collected the authorities on this contested question. The English cases seem to place the exemption of the infant on his repudiation of the contract within a reasonable time after attaining majority. But the editors conclude, after reviewing the American cases, that the infant's contract is not binding, unless there be some act on his part, after arriving at the age of twenty-one years, showing an intention to ratify. See, also, Wallace v. Lewis, 4 Harring. R. 75. Harris v. Cannon, 6 Geo. R. 382. Scott v. Buchanan, 11 Humph. R. 468. Tibbets v. Gerrish, 5 Fost. (N. H.) 41. Edgerly v. Shaw, id. 514. N. H. F. Ins. Co. v. Noyes, 32 N. H. 345. Taft v. Sergeant, 18 Barb. 320. Stokes v. Brown, 4 Chand. 39. Jones v. Phoenix Bank, 4 Seld. 228. Forsyth v. Hastings, 1 Wms. (Vt.) 646. Thurlow v. Gilmore, 40 Maine, 378.

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some distinct act by which the infant either received a benefit from the contract after he arrived at full age, or did some act of express and direct assent and ratification; but that was the case of a contract considered to be absolutely void. In the case of voidable contracts, it will depend upon circumstances, such as the nature of the contract, and the situation of the infant, whether any overt act of assent or dissent on his part be requisite to determine the fact of his future responsibility. (a)

(4.) Acts binding on the infant.

Infants are capable, for their own benefit and for the safety of the public, of doing many binding acts. Contracts for necessaries are binding upon an infant, and he may be sued and charged in execution on such a contract, provided the articles were necessary for him under the circumstances and condition in which he was placed. (b) The question of necessaries is gov

any promise or ratification after full age, of any promise or simple contract made during infancy, unless such promise or ratification be made by writing, signed by the party to be charged. See Hartley v. Wharton, 11 Adoph. & Ellis, p. 934, on the construction of this statute of May, 1828, (9 Geo. IV. c. 14,) in which the energy of the statute is very much weakened.1

(a) In Hoyle v. Stowe, 2 Dev. & Battle, 320, it was decided, upon a full consideration of the subject, that to ratify an infant's bargain and sale, after full age, some act must be done denoting that the estate created by the deed was subsisting, as the receipt of the purchase-money, &c. Declaration must be very clear, and with a view to ratification, to be sufficient.

(b) Ive v. Chester, Cro. J. 560. Clarke v. Leslie, 5 Esp. N. P. 28. Coates v. Wilson, ibid. 152. Berolles v. Ramsay, 1 Holt's Rep. N. P. 77. Though the negotiable note which an infant gives for necessaries be void, yet he is liable for the reasonable value of the necessaries. M'Minn v. Richmonds, 6 Yerger's Tenn. Rep. 1. What are necessaries for an infant depends on his relative situation, and are not always to be taken in the strictest sense, but with a reasonable qualification under the circumstances. The Queen's Bench, in Wharton v. Mackenzie, and Cripps v. Hills, 5 Adol. & Ellis, N. S. 606, where the cases were much discussed, adopted the rule laid down by Baron Parke, in Peters v. Fleming, 6 M. & W. 46.2

1 See Mawson v. Blane, 26 E. L. & Eq. 560.

2 What subjects of expenditure are necessaries, has been declared to be a question for the court; but whether any and how much were required by the infant are questions for the jury. Tupper v. Cadwell, 12 Metc. 559. Peters v. Fleming, 6 M. & Wels. 46. The rule laid down in the latter case by Baron Parke is," that articles purely ornamental are not necessaries; but if they are strictly of this description, it is a question for the jury, 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."

erned by the real circumstances of the infant, and not by his ostensible situation; and, therefore, the tradesman who trusts him is bound to make due inquiry, and if the infant has been properly supplied by his friends, the tradesman cannot recover. (a) Lord Coke considers the necessaries of the infant to include clothing, victuals, medical aid, and "good teaching or instruction, whereby he may profit himself afterwards." (b)1 If the infant lives with his father or guardian, and their care and protection are duly exercised, he cannot bind himself *240 even for necessaries. (c) It is also understood

that

necessaries for the infant's wife and children are necessaries for him; (d) and all cases of contracts for necessaries, the real consideration may be inquired into. (e) The infant is not

(a) Ford v. Fothergill, Peake's N. P. 229. Story v. Pery, 4 Carr. & Payne, 526. Steedman v. Rose, 1 Carr. & Marshman, 422. It is a tradesman's duty to acquaint himself with the infant's circumstances and necessities, and to take notice of supplies by other tradesmen. Johnson v. Lines, 6 Watts & Serg. 80. But though an infant has a sufficient income allowed him to supply him with necessaries suitable to his condition, yet his contract for necessaries is nevertheless binding. Burghart v. Hall, 4 Meeson & Welsby, 727.

(b) Co. Litt. 172, a.

(c) Bainbridge v. Pickering, 2 Black. Rep. 1325. Wailing v. Toll, 9 Johns. Rep. 141. Hull v. Connolly, 3 M'Cord's L. R. 6. Kline v. L'Amoureux, 2 Paige's Rep. 419. But if the infant lives apart from his father with his assent, and labors for his own use, he is liable for necessaries furnished him. Maddox v. Miller, 1 Maule & Sel. 738. Smith v. Young, 2 Dev. & Batt. 26. He is liable for interest on such contracts. Bradley v. Pratt, 23 Vermont R. 378.

(d) Turner v. Trisby, Str. Rep. 168. Though the husband be an infant, there are cases in which he has been held liable to pay the debts of his wife of full age, contracted by her before marriage; such liability being an incident to the marriage contract, which an infant is competent to enter into. Paris v. Stroud, Barnes's Notes, 95. Roach v. Quick, 9 Wendell's Rep. 238. Butler v. Breck, 7 Metcalf, 164.

(e) In Chapple v. Cooper, 18 Meeson & Welsby, 252, it was held, on the maxim of

1 It has been held that an infant is not liable on his contract for repairs made upon his house, though such repairs were needed to prevent the immediate and serious decay of the house. Tupper v. Cadwell, 12 Met. R. 559. See an analogous case, Mason v. Wright, 13 Ib. 306. Money lent an infant for the purchase of necessaries, and applied by him for that purpose, under the direction of the lender, may be recovered. Smith v. Oliphant, 2 Sandf. (Law) R. 306. An infant may bind himself, as for necessaries, for the price of his board, Bradley v. Pratt, 23 Verm. 378; but not by his contract for the insurance of his property, M. F. Ins. Co. v. Noyes, 32 N. H. 345; nor for the board of the horses, which he uses in his business, as hackman, Merriam v. Cunningham, 11 Cush. 40. See Swift v. Bennett, 10 Cush. 436. Hussey v. Roundtree, Busbee, 110.

bound to pay for the articles furnished, more than they were really worth to him as articles of necessity, and, consequently, he may not be bound to the extent of his contract; nor can he be precluded, by the form of the contract, from inquiring into the real value of the necessaries furnished. (a)

Infancy is not permitted to protect fraudulent acts; and, therefore, if an infant takes an estate, and agrees to pay rent, he canhot protect himself from the rent by pretence of infancy, after enjoying the estate, when of age. If he receives rents, he cannot demand them again when of age, according to the doctrine as now understood. If an infant pays money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid. (b) On the other hand, if he avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration which he had received. The privilege of infancy is to be used as a shield, and not as a sword.' He

Lord Bacon, persona conjuncta equiparatur interesse proprio, that an infant widow was liable for the expenses of the funeral of a deceased husband who died poor, as being an expense for her personal benefit.

(a) Makarell v. Bachelor, Cro. Eliz. 583.

(b) Kirton v. Elliott, 2 Bulst. Rep. 69. Lord Mansfield, in Earl of Buckinghamshire v. Drury, 2 Eden's Rep. 72. Holmes v. Blogg, 8 Taunt. Rep. 35. M'Coy v. Huffman, 8 Cowen's Rep. 84. Harney v. Owen, 4 Blackf. Ind. Rep. 337. The case of M'Coy v. Hoffman was overruled in Medbury v. Watrous, 7 Hill, N. Y. R. 110, on the principle that when an infant avoids his contract on coming of age, he may recover for work done or money paid in part performance, provided he has not received any benefit under the contract.2

1 See Carr v. Clough, 6 Fost. 280; Bartholomew v. Finnemore, 17 Barb. 428; Strain v. Wright, 7 Georg. 568; but the infant shall not be deprived of his privilege of avoidance, if he has disposed of the consideration during his minority and so cannot restore it. Price e. Furman, 1 Wms. (Vt.) 268, and see Manning v. Johnson, 26 Ala. 446. It seems that if an infant suffers another to purchase his property without informing such person of his ownership, he cannot recover the property of the purchaser. Hall v. Timmons, 2 Rich. Eq. R. 120. But see Norris v. Wait, 2 Rich, (Law) R. 148. If he purchase land, and gives notes or a mortgage therefor, he cannot disaffirm the notes or mortgage, and claim the land. Weed v. Beebe, 21 Vermont R. 495. Bailey v. Barnberger, 11 B. Mon. R. 113. See Heath . West, 8 Fost. 101; Carr v. Clough, 6 Fost. 280.

2 Whitmarsh v. Hall, 3 Denio's R. 375. Corpe v. Overton, 10 Bing. 252. Aldrich v. Abrahams, Hill & Den. 423. Breed v. Judd. 1 Gray, 455. When an infant avoids his contract for service, he may recover in quantum meruit the value of the services rendered. Hoxie v. Lincoln, 25 Verm. 206. Wheatly v. Miscal, 5 Porter, (Ind.) 142. Lufkin v. Mayall, 5 Fost. 82.

cannot have the benefit of the contract on one side, without returning the equivalent on the other. (a)1 But there are many hard cases in which the infant cannot be held bound by his contracts, though made in fraud; for infants would lose all pro

tection, if they were to be bound by their contracts made *241 by improper artifices, in the heedlessness of youth,

before they had learned the value of character, and the just obligation of moral duties. When an infant had fraudulently represented himself to be of age when he gave a bond, it was held that the bond was void at law. (b) But where he obtained goods upon his false and fraudulent affirmation that he was of age, though he avoided payment of the price of the goods, on the plea of infancy, the vendor was held entitled to reclaim the goods, as having never parted with his property in them; (c) and it has been suggested, in another case, (d) that there might be an instance of such gross and palpable fraud, committed by an infant arrived at the age of discretion, as would render a release of his right to land binding upon him. Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts or frauds. (e) But the fraudulent act, to charge him, must be wholly tortious, and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover, or case, by a change in the form of

(a) Badger v. Phinney, 15 Mass. Rep. 359. Roberts v. Wiggin, 1 N. H. Rep. 73. Roof v. Stafford, 7 Cowen's Rep. 179. Parker, J., in Hamblett v. Hamblett, 6 N. H. Rep. 339. Smith v. Evans, 5 Humphrey's Tenn. R. 70. Kitchen v. Lee, N. Y. Ch. 3 N. Y. Legal Observer, 160.

Burley v. Russell, 10 N. H. Rep. 184. Fitts v. Hall, 9 N. H. Rep. 441. Com. this last case, Lord Ch. B. Comyns,

(b) Conroe v. Birdsall, 1 Johns. Cas. 127. (c) Badger v. Phinney, 15 Mass. Rep. 359. Dig. Action on the case for deceit, A. 10. In held an infant liable for deceit in obtaining a loan of money on the fraudulent affirmation that he was of age. Burley v. Russell, sup. S. P.2

(d) Stoolfoos v. Jenkins, 12 Serg. & Rawle, 399.

Humphrey v. Douglass, 10

(e) Fitts v. Hall, 9 N. H. Rep. 441, 448. They are liable for trespasses committed by them, even though acting by command of the father. Vermont Rep. 71.

1 Kitchen v. Lee, 11 Paige R. 107.

2 See Price v. Hewett, 18 E. L. & Eq. 522, and editors' note.

Merriam v. Cunningham,