INFANTS. proved that he has contracted to be bound, just in the same manner as a contract would be proved against any other person (c). A jury, however, will infer that a father has promised on comparatively slight evidence. RULE 64. Adult not to be sued on con tracts made during infancy. Exceptions. Contracts on which RULE 64.-An adult (i. e., a person of or over twenty-one years of age) cannot be sued on contracts made by him during infancy. This rule applies without exception to contracts which the Court can pronounce to be to the infant's prejudice, and therefore absolutely void (d); e. g., a bond conditioned for the payment of interest (e), or a bond with a penalty(ƒ). All the exceptions to it are either contracts on which the infant himself might be sued, or contracts which are not void, but only voidable at the election of the infant on coming of age. Exception 1.-Contracts on which an infant might be sued. An adult can be sued on all the contracts made during infant may infancy, (viz., contracts for necessaries), for which he would have been liable while an infant (g). be sued. Contracts ratified by adult. Exception 2.-Contracts ratified in writing after full age. An adult may be sued on a contract made during infancy (e. g., for the purchase of goods not necessaries), if, after he comes of age, he confirms it by a new promise (c) Leake, Contracts, 27, 28; Mortimore v. Wright, 6 M. & W. 482. Compare Bazeley v. Forder, L. R. 3 Q. B. 559; 37 L. J. 237, Q. B. (d) Keane v. Boycott, 2 H. Bl. 511. (e) 8 East, 330. (f) Baylis v. Dineley, 3 M. & S. 477. (g) An adult may be freed from liability for such contracts in consequence of their being barred by the Statutes of Limitations; e. g., if an infant contract for necessaries at the age of twelve, the remedy against him will be barred before he has attained the age of twenty one. or ratification (h), and this promise will be binding without any fresh consideration for it (i). "The principle on which the law allows a party who has attained his age of twenty-one years, to give validity to contracts entered into during his infancy [is] that he is supposed to have acquired the power of deciding for himself, whether the transaction in question is one of a meritorious character by which in good conscience he ought to be bound" (j). The promise or ratification must be in writing, and must, under 9 Geo. IV. c. 14, s. 5, be signed by the party himself (k). It has been held that "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" (l); and further, that the ratification may be made upon a condition, or to a limited extent. Thus if X. promise in a letter, signed by himself, to pay a debt incurred during infancy when he is able, such new promise is binding upon him conditionally on his becoming able to pay (m). The confirmation or ratification of a contract made during infancy, must in all cases be before action brought (n). INFANTS. Exception 3.-Contracts connected with the possession of per- Contracts manent property and not repudiated after full age. connected with per manent property and not repudiated. (h) Provided the contract be not originally absolutely void, (Baylis v. Dineley, 3 M. & S. 477), in which case it is, strictly speaking, not a contract. (i) As to consideration, see pp. 81 and following, ante. (j) Williams v. Moor, 11 M. & W. 256, 264, per Curiam. (k) 9 Geo. IV., c. 14, s. 5. "The Mercantile Law Amendment Act, 1856" (19 & 20 Vict. c. 97), has not taken away the necessity of the ratification being signed by the party himself. Leake, Contracts, 229. (1) Harris v. Wall, 1 Exch. 122, 130, per Curiam; Rowe v. Hopwood, L. R. 4 Q. B. 1. (m) See Cole v. Saxby, 3 Esp. 160; and see generally, Leake, Contracts, 229-231. (n) Thornton v. Illingworth, 2 B. & C. 824. INFANTS. RULE 65. Infant cocontractor not to be sued. Where an infant not only contracts, but also acquires an interest not in a mere chattel but in a subject of a permanent nature (o), he is liable to the obligation attached to the contract unless he repudiates the contract within a reasonable time after he comes of age. Thus if a lease be made to an infant during his minority, he ratifies it by remaining in possession after he comes of age, and, on what is really the same principle, if a lease is made by an infant he ratifies it by accepting rent after he attains his majority (p); and an infant member of a firm who does nothing to disaffirm the partnership upon coming of age, has been held to continue a partner, and to be liable on contracts subsequently made by the firm (q), though not for debts incurred by the firm during his minority (r). Perhaps, however, he may be liable on contracts entered into before he reached the age of twenty-one, but persisted in by the firm after that date (s). An infant shareholder, again, who after he comes of age permits his name to continue registered, thereby ratifies the agreement by which he originally became a shareholder (t), and therefore is liable for calls made as well before as after he came of age (u). RULE 65.-If one of several co-contractors is an infant, and the others are adults, the adults alone must be sued. (0) London and North-Western Rail. Co. v. McMichael, 20 L. J. 99, Ex. ; 5 Exch. 123, judgment of Parke, B. (p) Baylis v. Dineley, 3 M. & S. 477, 481; 2 Steph. Com., 6th ed., 329. (r) Lindley, Partnership, 2nd ed., 86-88. (t) Ibid. (u) London and North-Western Rail. Co. v. McMichael, 5 Exch. 114; 20 L. J. 97, Ex.; Cork and Bandon Rail. Co. v. Cazenove, 10 Q. B. 935; Dublin and Wicklow Rail. Co. v. Black, 22 L. J. 94, Ex. ; 8 Exch. 181. (Ex. Ch.); and contrast Newry and Inniskilling Rail. Co. v. Combe, 3 Exch. 565; 18 L. J. 325, Ex. If a joint contract is made by X. an infant and Y. an adult, an action for the breach of it may and should be brought against Y. only. If an action be brought against them jointly it must fail, for on X. pleading infancy, the plaintiff cannot enter a nolle prosequi as to him, and continue the action against Y. (x), but must discontinue the action and sue Y. separately (y). But if Y. alone be sued, and he plead X.'s non-joinder in abatement, the plaintiff may meet the plea by replying X.'s infancy (2). (x) Boyle v. Webster, 21 L. J. 202, Q. B; 17 Q. B. 950. (y) Burgess v. Merrill, 4 Taunt. 468; Chit., Contracts, 7th ed., 143. (z) Chit., Contracts, 7th ed., 143; Gibbs v. Merrill, 3 Taunt. 307. See p. 233, ante. INFANTS. Exceptions. Exception 1.-Where the husband is civilly dead (b). Husband civilly dead. Husband presumed to be dead. Wife judicially separated. Husband alien enemy. Exception 2.-Where the husband is legally presumed to be dead (c). Exception 3.-Where a wife has a judicial separation or protection order under 20 & 21 Vict. c. 85, ss. 26 and 21 (d). Exception 4.-Where the husband is an alien enemy. A wife cannot, as before pointed out (e), sue alone on the ground that her husband is an alien enemy; but she may, at any rate under some circumstances, be sued alone on the ground that her husband is an alien enemy. Thus, where the husband is an alien who has deserted this kingdom, leaving his wife to act here as a feme sole, she may, it would seem, be charged in an action against her alone, on contracts made by her after such desertion (f); though it is doubtful whether the doctrine that (a) See Rule 29 for explanation. (b) See Rule 29, Exception 1. (c) See Rule 29, Exception 2. (e) See p. 172, ante. (ƒ) 1 Selwyn, N. P., 13th ed., 240; Walford v. Duchesse de Pienne, 2 Esp. 554; Francks v. Duchesse de Pienne, 2 Esp. N. P. C. 587. |