Irresponsibility as an innkeeper- Cannot be a bankrupt; nor take the benefit of the 7. PERSONAL INCAPACITIES, p. 2059. 8. RATIFICATIon after full AGE, pp. 2059—2062. 14 Contract of an infant voidable only — Moral obligation to pay, is an adequate con- pay a debt, but without a date, or amount of debt, or creditor's name — Judgment 9. LIABILITY FOR TORTS, pp. 2062, 2063. 10. APPEARANCE, pp. 2063, 2064. When the court will appoint An infant must appear by guardian or prochein amy - 11. DECLARATION PLEADINGS AND PAYMENT OF MONEY INTO COURT, p. 2064, 2065. 12. EVIDENCE, pp. 2065, 2066. Proof of infancy lies upon defendant — If plaintiff reply "necessaries," no proof of infancy need be given — Incumbent on plaintiff to prove the articles were “necessaries Ratification after full age· Conditional promise - Primâ facie evidence of necessaries to charge a father - Joint contracts. Liability of infant defendant— Attachment does not generally lie against the guardian of an infant for costs When security for costs will be required — Costs of an infant plaintiff when nonsuited- Court will not discharge infant for costs in an action of tort. CONTRACTS WHICH CAN BE AN INFANT. 1. CONTRACTS WHICH CAN BE ENFORCED BY AN INFANT. Infancy is a personal privilege, of which no one can take advantage but the infant. The general presumption of law is, that an infant does not know his own rights (1); and although the promise of an infant be not binding at his election (2) except for necessaries, yet he may take advantage of any promise made to him, although the consideration be merely the infant's promise, as in an action on mutual promises to mårry (3); on a contract for the purchase of potatoes (4); or submission to a reference. (5) WHICH CAN BE ENFORCED BY If a person jointly interested with an infant in a lease, obtain a renewal CONTRACTS to himself only, and the lease prove beneficial, he will be a trustee for the infant who may claim his share of the benefit; but if it do not prove bene- AN INFANT. ficial, he must take it upon himself. (1) (2) of the lessee. Where a minor by himself and his guardian agreed to let the defendant a Lessee cannot rescind a lease, farm, which he refused to hold when the minor came of age, upon the ground, in consequence that the latter was under age at the time of the contract, it was decreed in of the minority equity, that the defendant should take a lease, and should pay all costs. The onus probandi minority does not lie with the minor, but with the adversary, in actions upon mutual contract. Thus, in an action on an agreement for a Scotch tack made with the tutors of a minor, and the action was brought in his own name, it was held, that being made for his benefit, it was competent for him to sue in his own name upon the contract, and that it lay upon the defendant to shew, that the plaintiff was a minor at the time of the action brought. (3) Mr. Justice Alderson in ton. An infant is not bound by any forfeiture annexed to a contract; and his Infant not obligation with a penalty, even for necessaries, is absolutely void (4); there- bound by any forfeiture anfore, an infant can recover back a sum which, while an infant, he may have nexed to a paid in advance towards a share in the trade of A. B., to be retained by A. B. as contract. a forfeiture, if the infant failed to fulfil an agreement to enter into partnership with A. B. Thus, in Corpe v. Overton (5) Mr. Justice Alderson observed, Judgment of "The parties agree in 1832 to enter into partnership in the following January, and 100%. was to be paid down, to be forfeited, if the plaintiff should decline to perform his contract. Before the contract is performed, one of the parties revokes it, and remits the other to the same situation, as if the contract had never been made. There is no ground, therefore, on which he can claim to retain money for the purpose of enforcing the execution of a contract, which the law says an infant shall not enter into. In this, the case is clearly distinguishable from Holmes v. Blogg. (6) Here the infant has had no enjoyment of any advantage from the contract; in Holmes v. Blogg he had enjoyment, for a period, of premises demised to him; and so far was in the same situation, as if he had paid for expensive clothes or other articles not necessary, and, after wearing them, had brought an action for the price. In such an action, he could not be allowed to recover, although the tradesman, if unpaid, could not have enforced payment." 2. CONTRACTS MADE DURANTE MINORITATE, WHICH CAN BE ENFORCED AGAINST AN INFANT. It is enacted by the Friendly Society Act (10 Geo. 4. c. 56. s. 32.), “that a minor may become a member of any such society, and shall be empowered to execute all instruments, give all necessary acquittances, and enjoy all the privileges, and be liable to all the responsibilities appertaining (1) Exp. Grace, 1 B. & P. 376. (2) Clayton v. Ashdown, 9 Vin. Abr. Infant, 393. [G. 4.]. (3) Fitzmaurice v. Waugh, 3 D. & R. 273. Carnegie v. Waugh, 2 ibid. 277. (4) Co. Litt. 172. (a.) CONTRACTS MADE DURANTE MINORITATE, WHICH CAN BE AGAINST AN INFANT. ciety Act, 10 Friendly So Geo. 4. c. 56. s. 32. CONTRACTS MADE DURANTE MINORITATE, WHICH CAN BE ENFORCED ACTS OF NE CESSITY BIND AN INFANT. to benefices; to, and grants of, copyholds. Liability for acts of solicitor. Money advanced to liberate an infant from imprisonment. Judgment of Lord Alvanley in Clarke v. Leslie. Contract of marriage. When an ejectment cannot be brought without giving notice to quit. to members of matured age, notwithstanding his or her incapacity or disability in law to act for himself or herself: provided always, that such minor be admitted into such society by and with the consent of his or her parents, masters, or guardians." Acts of necessity bind an infant-as presentations to benefices, admittances to, and grants of, copyholds. (1) An infant is seemingly bound by the conduct of his solicitor in a cause (2); and by a decree in a court of equity. (3) A person who pays for an infant, at his request, a debt which the latter had contracted for necessaries, stands, even at law, in the situation of the original creditor, and may sue the minor for money paid. (4) Thus, in Clarke v. Leslie (5) Lord Alvanley said, "If the defendant had been taken into custody for a debt contracted for necessaries, discharging that demand would be to pay for necessaries; so if the defendant had been in execution; that is, if at all events the defendant had made herself liable to the debt, and could not controvert it, paying that debt, I think, would be necessaries. This is my opinion; and it was the opinion of other judges of great learning: but I think, that the plaintiff must shew, that debt, which was so paid here, was either for necessaries, or that the party was in execution. If this was not to be required, an arrest for a supposed or fraudulent debt might be made, and the infant might be subjected to the payment of the money advanced to liberate her from an arrest, for a demand for which an infant could not legally be made liable." A feme infant may sometimes be bound by a marriage contract, if there be an equitable and bonâ fide settlement of her property, with the consent of her friends and relations. (6) Where an ejectment brought on the demise of an infant, has been compromised, and the tenant in possession has attorned to the infant, though the lessor of the plaintiff on his coming of age does not accept rent, or any otherwise confirm the tenancy, yet, as the former ejectment was brought at his suit and for his benefit, he will not be allowed to treat the tenant as a trespasser, and bring a new ejectment, without giving notice to quit. (7) (1) Zouch v. Parsons, 3 Burr. 1801. Eve- Lapp, & Sch. (Irish), 364. A testamentary guardian can make a lease of the infant's lands for the minority. Shaw v. Shaw, Vernon & Scriven (Irish), 607. 3. PECUNIARY PAYMENTS, AND SECURITIES FOR PECUNIARY PAYMENTS, BY AN INFANT. In Holmes v. Blogg (1) it was held, that an infant could not, in avoiding a lease made by him during his infancy, recover back a sum of money which he had paid as a premium in consideration of it; Chief Justice Gibbs stating, “In Lord Chief Justice Wilmot's notes of opinions and judgments, it appears that Lord Hardwicke and Lord Mansfield were of opinion, with the majority of the judges, that if an infant pays money with his own hand, without a valuable consideration, he cannot get it back again."" (2) therefore think this action cannot be maintained, upon the ground, that the infant having paid the money with his own hand, cannot recover it back again." (3) "We So likewise, in Wilson v. Kearse (4), Lord Kenyon was of opinion, that "though an infant was not compellable to complete a contract, yet that when he had paid money under it, he could not recover it back, unless he could shew, that fraud had been practised on him." An infant can on no account bind himself in a bond with a penalty con- Bond debts. ditioned for payment of interest as well as principal. (5) An infant cannot state an account (6), except before auditors appointed Account in a court of record. (7) But this could only be, where the infant was plaintiff; as an action of account does not lie against an infant (8), even though the items consist of necessaries. (9) stated. Yet it has been held, that an infant may bind himself by single bill, ¿.e. a bond without a penalty, to pay for necessaries. (10) An infant is not liable on a bill of exchange to which he is a party, Bills of exalthough it were given for necessaries. (11) If a party accept a bill after he has attained the age of twenty-one, it is no objection, that it was actually drawn before, in discharge of a debt incurred, while he was an infant. (12) (1) 8 Taunt. 511. (2) Wilmot's notes, 226. n. (3) In Corpe v. Overton (10 Bing. 256.) Chief Justice Tindal said, "The ground of the judgment in Holmes v. Blogg was, that the infant had received something of value for the money he had paid, and that he could not put the defendant in the same position as before." (4) Peake's Add. Cas. 196. (5) Fisher v. Mowbray, 8 East, 330. Baylis v. Dineley, 3 M. & S. 477. 14. (6) Trueman v. Hurst, 1 T. R. 40. (7) Per Newton Serjeant, arg. 10 Hen. 6. (8) Co. Litt. 188. (a.) (9) Bartlett v. Emery, 1 T. R. 42. n. Ingledew v. Douglas, 2 Stark. 36. Hedgley v. Holt, 4 C. & P. 104. (10) Cupworth's case, 1 Rol. Abr. Enfants (C.), 729. Russel v. Lee, 1 Lev. 86. contrà, 21 Hen. 6. 31., et vide 18 Edw. 4. 2. Monnings v. Knoppe, 1 Rol. Abr. Action sur Case (V.), 18. S. C. nom. Morning v. Knop, Cro. Eliz. 700. 1 Vin. Abr. Actions, 301. [U.]. Ayliff v. Archdale, Cro. Eliz. 920. Stowel v. Zouche, Plowd. 364. (b.) 9 Vin. Abr. Enfant, 380. [C.]. Co. Litt. 172. (a.) (11) Williams v. Harrison, Carth. 160. Holt, 359., antè, 806. tit. BILLS OF ExCHANGE AND PROMISSORY NOTES. Williamson v. Watts, 1 Camp. 552. It does not appear in the latter case what party to the bill the plaintiff was. (12) Stevens v. Jackson, 4 Camp. 164. Chitt. & Hul. 19. change. PECUNIARY PAYMENTS TO vanced to an infant, although for an appren tice fee, cannot be recovered. Judgment of Lord Kenyon in Smith v. Gibson. Fraudulent concealment of age. Equity will relieve, where money is lent 4. PECUNIARY PAYMENTS TO AN INFANT. Money advanced to an infant (1), although for the purpose of paying on behalf of the infant an apprentice fee, cannot be recovered, unless there be a written promise to pay. Thus, in Smith v. Gibson (2) Lord Kenyon observed, "Where a man does an act of generosity for an infant, he relies wholly on the generosity of the infant to make a suitable return. The infant ought to make a due return; but it is a duty of imperfect, not of legal obligation." When an infant fraudulently concealed his age, and obtained from his trustees part of certain stock, which he was entitled to when of age, and upon his attaining his full age a few months afterwards, he applied for and obtained the residue:-It was held in equity, that the infant was guilty of a fraud; and that neither he, nor his assignees, could recover back the amount paid during nonage; and that his application for "the residue" was a binding recognition of the former payment. (3) Although at law an infant is not liable for money lent and delivered to him to purchase necessaries, although the money be applied by him to that to an infant to purpose (4), yet equity will relieve in such case, by considering, that the lender stands in the place of the infant's creditor for necessaries, who has been satisfied. (5) purchase ne cessaries. Payments on account of wages to purchase neces saries. NECESSARIES. RESPONSIBILITY OF PARENTS. Parents bound to supply their children with necessaries. The father is the person to judge, what is proper for his children. A father who gives no authority, and enters into no contract, is no more liable for goods supplied to his son, than a mere stranger. Payments made to an infant on account of wages due to her to purchase necessaries are valid payments. (6) It 5. NECESSARIES. I. Responsibility of Parents. may be laid down as a general principle, that parents are bound to supply their children with necessaries; and if they do not supply them with necessaries, they will become responsible to those who do. To charge a father with the amount of clothes or other necessaries supplied to his children, it is essential, that they should have been supplied with the assent or by the authority of his father; and the father is the person to judge, what is proper for his children. (7) In Mortimore v. Wright (8) the defendant's son, an infant of twenty years of age, had lodged for some time with the plaintiff, during a part of which, he had earned wages, and paid for his board, &c. He afterwards became ill, and was unable to pay for the necessaries with which, the plaintiff continued to supply him. The plaintiff applied to his father for money, who wrote in answer, that he could not advance any at that time, but his (1) Vide post, 2054. tit. NECESSARIES. (3) Cory v. Gertcken, 2 Madd. 40., sed (b.) Probart v. Knouth, 2 Esp. N. P. C. 472. n. (5) Marlow v. Pitfeild, 1 P. Wms. 558. |