protection of a servant, the latter has an implied authority to provide medical assistance for the children on the father's credit, even although the necessity for it be occasioned by the carelessness of the servant (1). CH. VII. 8. 4. Contracts with Infants. bastard. Even the father of a bastard, who has adopted it by taking it Father of a to his home, is liable upon an implied contract to pay for necessaries supplied to the child, although no order of bastardy has been made (8). And it seems that if the father of such a child consent without an order of bastardy, to pay an annual sum for its support, he will be bound to continue to do so, or to provide for the child himself, unless he give the most distinct notice of his intention to discontinue the payment in future (t). But future liability may be repudiated; and where the supposed father, after making various payments, refused to continue to support the child until the mother obtained an affiliation order, it was held that the mother could not sue for the subsequent maintenance of the child (u). Whether a father who deserts his infant child, is liable to a party who supplies the child with necessaries, is doubtful. But it has been held, that no such action can be maintained, if the father had reasonable ground to suppose, that the child was being maintained by the person in whose custody it was, at that person's own expense (x). Father deserting his child. A step-father was not bound at common law to maintain his Step-father. wife's children by a former marriage (y), though he now is by the Poor Law Amendment Act, 1834, just as if they were part of his own family. But if he take them into his house and permit them to appear as part of his family, he will become liable to parties who supply necessaries for them, just as he would be liable for necessaries supplied to his own children (2). And if a step-father educate and support his wife's infant child by a former husband, he cannot recover from the child, on its attaining full age, the expenses thereby incurred, except upon an express promise to repay him (a). (g) Liability of Party contracting with Infant. Infancy is a personal privilege, of which no one can take advantage but the infant himself; and therefore, although the (r) Cooper v. Phillips (1831), 4 C. & P. 581. (s) Heskith v. Gowing (1804), 5 Esp. 131. (t) Per Best, C.J., Cameron v. Baker (1824), 1 C. & P. 268. (u) Furillio v. Crowther (1826), 7 D. & R. 612. (x) Urmston v. Newcomen (1836), 4 A. & E. 899. (y) Tubb v. Harrison (1790), 4 T. R. 118; Cooper v. Martin (1803), 4 East, 76. (z) Cooper v. Martin (1803), 4 East, 76; Stone v. Carr (1799), 3 Esp. 1. (a) Per Lawrence, J., Pelly v. Rawlins (1804), Peake, Add. C. 226; Cooper v. Martin (1803), 4 East, 76. Contracts with Infants. CH. VII. s. 4. infant may repudiate his contract, it binds the other party. Indeed, were it otherwise, the infant's incapacity, instead of being an advantage to him, might in many cases turn greatly to his detriment (b). Parties who contract with infants are liable to them. Contract to marry. Sales, purchases by infant. Therefore an infant may sue an adult for breach of promise of marriage; although the adult cannot sue the infant on such a promise (c). So, although an infant is not liable on any mercantile contract, as he is not allowed to trade, still he may maintain an action thereon (d). So, where an infant brought an action by his prochein ami, and recovered damages, and the attorney in the cause, who was appointed by the prochein ami, received the damages so recovered; it was held that the infant might recover the amount from the attorney, in an action for money had and received (e). So the lessee, under a lease made by an infant, cannot avoid the lease by reason of the infancy of the lessor(ƒ). And where an infant, by himself and his guardian, agreed to let a farm to the defendant-which the latter refused to hold when the infant came of age, upon the ground that he was under age at the time of the contract-it was decreed that the defendant should take a lease (g). (h) Executed Contracts with Infants. An executed contract of sale or purchase by an infant may, by American law, be rescinded by the infant either before or after majority. But the infant must not use his minority for the perpetration of a gross fraud, for "the privilege of infancy is a shield not a sword," and on rescission he must return the consideration or the property, and will be liable in trover therefor. If, however, the infant has parted with the property the adult is remediless, unless there is fraud, when a special action on the case may be sustained. If the adult has resold the property and parted with its possession before rescission, his alienee gets a good title, and the adult is not liable for conversion (h). And it is submitted that all these points would be similarly decided in England (i). (b) Bac. Abr. Infancy (I.), 4; Holt v. (e) Holt v. Ward (1733), 2 Str. 937. (e) Collins v. Brook (1860), 5 H. & N. (f) Per Twisden, J., Forrester's case (1661), Sid. 41, 42. (g) Clayton v. Ashdown (1715), 9 Vin. Abr. 393, pl. 4. (h) Carr v. Clough (1853), 6 Foster's N. H. Reps. 280, following N. Y. Ct. of Errors in Stafford v. Roof (1827), 1 Cowen, N. Y. 626; and see Vasse v. Smith (1810), 6 Cranch, 226; Tucker v. Moreland (1836), 10 Peters, 39, both U. S. Supr. Ct.; and Harger v. Hackmeister (1882), 49 N. Y. Sup. Ct. 34; House v. Alexander (1885), 55 Am. Rep. 189; Pyne v. Wood (1887), 145 Mass. 558, and 2 Kent. Com. 240*. (i) And see Valentini v. Canali (1890), 24 Q. B. D. 166, and p. 145, ante. CH. VII. s. 4. Contracts with Infants. By the Pawnbrokers Act, 1872, 35 & 36 Vict. c. 93, ss. 32 and 45, a pawnbroker taking a pledge from a person appearing to be under the age of 12 years is liable to a penalty up to 10l.; and by the Metropolitan Police Act, 1839, 2 & 3 Vict. c. 47, s. 50, a Pawns. penalty up to 5l., for taking a pledge from any person apparently under the age of 16 years. Pledges and SECT. 5.-Contracts with Aliens. alien enemy void at common law. Contract with alien enemy, void at common law. By the common law, an alien friend may trade with a subject Contract of an of this realm either in this country or abroad, and may, during peace, maintain an action in the English Courts on any contract arising out of such transactions (k). But the contract of an alien enemy is, by the common law, absolutely void, and cannot be enforced by him, or by any person for his benefit, either at law or in equity (1); unless he came into this country sub salvo conductu, or live here by the king's licence (m); and this rule of law is extended to the wife of an alien enemy (n). And where an alien enemy drew a bill on the defendant, a British subject resident in this country, and indorsed it to the plaintiff, an English-born subject resident in the enemy's country: it was held that the plaintiff could not recover on the bill, although he did not sue thereon till after a peace (0). So, by the common law, if there were a contract with an alien, and, whilst it was merely executory, war broke out between this country and that of the alien, this would dissolve the contract (p). But where there was a contract with an alien, and a cause of action had accrued to him thereon before the commencement of hostilities, the effect of this was held to be, only to suspend his right to sue until the return of peace (q). It would seem, however, that a considerable modification of Effect of "The the law on this subject must result from the Naturalization Act, Naturaliza (k) Co. Litt. 129 b; Bac. Abr. Aliens, (D.). Before 7 & 8 Vict. c. 66, s. 5, an alien friend could not take a lease of houses, &c., 32 Hen. 8, c. 16; Jevens v. Harridge (1667), 1 Wms. Saund. 6; and even an agreement to grant a lease to an alien, was held to be void under that statute; Lapierre v. M'Intosh (1839), 9 A. & E. 857; but not an assignment of a lease; Wootton v. Steffenoni (1843), 12 M. & W. 129. (1) Co. Litt. 129 b; Bac. Abr. Aliens, (D.); Brandon v. Nesbitt (1794), 6 T. R. 23; 3 R. R. 109; Albrecht v. Sussman (1813), 2 V. & B. 323. (m) Wells v. Williams (1698), 1 Salk. C.C. 46; Boulton v. Dobree (1808), 2 Camp. (n) De Wahl v. Braune (1856), 25 (0) Willison v. Patteson (1817), 7 Taunt. 439. (p) Roll. Abr. Alien (B.); and see Esposito v. Bowden (1857), 7 E. & B. 763. (q) Flindt v. Waters (1812), 15 East, 260; 13 R. R. 457; Ex parte Boussmaker (1806), 13 Ves. 71; 9 R. R. 142. 11 tion Act, 1870." Contracts with Aliens. Naturaliza CH. VII. s. 5. 1870, 33 & 34 Vict. c. 14. For by sect. 2 of that Act, an alien is empowered to take, acquire, hold, and dispose of real and personal property of every description, in the same manner in all tion Act, 1870. respects as if he were a natural-born British subject. And, as the statute appears to give this power to all aliens, whether they be subjects of a friendly state or not, and whether they reside in this country or not; and the power so given cannot be enjoyed without entering into contracts for the taking, acquiring, and disposing of real and personal property; it seems to follow, that all aliens are now enabled to enter into such contracts, and may now enforce, by action in our Courts, any obligation arising therefrom (r). Englishman domiciled in a country at war with this; or in a friendly state. of war. Where a British subject voluntarily resides in a foreign country, the government of which is at war with this, it has been held that he so far loses his rights as a British subject that he cannot sue in our Courts (s). But an action may be maintained here by a neutral, on a promissory note given to him by a British subject in an enemy's country, for goods sold there. In such a case, as was said by Lord Ellenborough, "the contracting parties were not alien enemies, and it does not follow that the contract was void, though made in an enemy's country. The plaintiffs, who were domiciled in Switzerland, might lawfully sell their goods in Paris; and it was not proved that the defendant, who was a British subject, purchased them for an illegal purpose" (t). A British subject, domiciled in a foreign state in amity with this country, may lawfully exercise the privileges of a subject in the place where he is resident, to trade with a nation in hostility with Or a prisoner this (u); and a native of a foreign state in amity with this country, who is taken in an act of hostility on board an enemy's ship, and brought to England as a prisoner of war, does not thereby become an alien enemy, so as to be disabled from suing, even during his imprisonment, on a contract entered into by him. while prisoner (x). Nor can a British subject, who is a prisoner of war in an enemy's country, be deemed an alien enemy. And, therefore, where a bill, drawn by such prisoner on a British (r) The operation of this statute is prospective only; Sharp v. St. Sauveur (1871), L. R., 7 Ch. 343. (s) O'Mealey v. Wilson (1808), 1 Camp. 482; 10 R. R. 732; M'Connell v. Hector (1802), 3 B. & P. 113; 6 R. R. 724; Roberts v. Hardy (1815), 3 M. & S. 533 ; De Geer v. Stone (1882), 22 Ch. D. 243. By the Naturalization Act, 1870, 33 & 34 Vict. c. 14, s. 6, a British subject who is voluntarily naturalized in a foreign state, may cease to be a British subject, and become an alien. And it is presumed that, on this event happening, he would enjoy the same rights as are conferred on other aliens by sect. 2 of that Act. (t) Houriet v. Morris (1812), 3 Camp. 393. (u) Bell v. Reid (1813), 1 M. & S. 726 ; 14 R. R. 557. (x) Sparenburgh v. Bannatyne (1797), 1 B. & P. 163; 4 R. R. 772. subject in this country, was indorsed to an alien enemy, it was CH. VII. 9. 5. held that it became available in the hands of the latter, upon the cessation of hostilities (y). Contracts with Aliens. SECT. 6.-Contracts with Convicts. 34 The law of forfeiture formerly applied to persons convicted of treason or felony (z). But the Forfeiture Act, 1870, 33 & Vict. c. 23, s. 1, enacts, that after that Act (a) no conviction or judgment of or for any treason or felony shall cause any attainder or corruption of blood, or any forfeiture or escheat. Conviction. for treason or felony does not cause forfeiture. not contract or sue. By the Forfeiture Act, 1870, however (b), a convict—that is, Convict canone against whom, after the passing of the Act, judgment of death or of penal servitude shall have been pronounced or recorded, by any Court of competent jurisdiction in England, Wales, or Ireland, upon any charge of treason or felony (c)-is disabled, while subject to the operation of that Act, from bringing any action at law or suit in equity, and from alienating or charging any property, and from making any contract, except during such time as he may be lawfully at large under any licence (d). and choses in action acquired by in administrator under convict vest Forfeiture Act. So, a convict may acquire, but he cannot enjoy; he may acquire, Property not by virtue of any capacity in himself, but because, if a gift be made to him, the donor cannot make his own act void, and reclaim his own gift. But he cannot enjoy, because, although the donor cannot reclaim his gift, yet by the common law, the thing given vested in the Crown by its prerogative (e); and now by the Forfeiture Act, 1870, 33 & 34 Vict. c. 23, s. 10, all his property, including choses in action, except property acquired under sect. 30 while on ticket-of-leave, vests in the administrator or curator (if any) who may be appointed in that behalf, under that Act, who can sue and be sued, and generally act on behalf of the convict, according to the powers prescribed by this Act. And the right of the convict, to the protection of the law, is only suspended, it is not irrecoverably lost: and the disability will be removed by his ceasing to be subject to the operation of the above Act (ƒ); whereupon, as a matter of course, his capacity to contract, and right to sue, will revive (g). Right only suspended. |