Liability on obliga first section may be read as giving a popular exposition of the chief practical effects of the following one. It is conceived that a bond, bill of exchange, or note given by a man of full age, for which the consideration. was in fact a loan of money or the supply of goods not necessaries during his infancy, would not be void under s. 1(b). But s. 2 would no doubt effectually prevent it from being enforced, though perhaps the words are not the most apt for that purpose. 2. Of the liability of infants on obligations incident to tions inci- interests in permanent property. dent to In an old case reported under various names in various property, and espe- books (c), of which a sufficient account is given in the cially as to railway judgment of the Court of Exchequer in L. & N. W. Ry. shares. Co. v. M Michael (d), it was decided that an infant lessee who continues to occupy till he comes of full age is after his full age liable for arrears of rent incurred during his infancy. In like manner a copyholder who was admitted during his minority and has not disclaimed is bound to pay the fine (e). In recent times an important application of this principle has been made in the case of infant shareholders in railway companies. An infant is not incapable of being a shareholder, and as such he is prima facie liable when he comes of age to be sued for calls on his shares, and he can avoid the liability only by showing that he repudiated the shares either before attaining his full age (f), or in a reasonable time afterwards (g). In the first of the series of cases on this head some of the judges seem to have thought that even an infant shareholder was made absolutely liable by the general form of (b) Cp. Flight v. Reed, 1 H. & C. 703, 32 L. J. Ex. 265. (c) Kettle v. Eliot, &c. Rolle Ab. (d) 5 Ex. 114; 20 L. J. Ex. 97. (f) Newry & Enniskillen Ry. Co. v. Coombe, 3 Ex. 565, 18 L. J. Ex. 325. (g) A plea which merely alleged repudiation after full age was therefore held bad in Dublin & Wicklow Ry. Co. v. Black, 8 Ex. 181. the enactment in the Companies Clauses Consolidation Act defining the liability of shareholders (). This view, however, has since been declared erroneous and inconsistent with the established rule that general words in statutes are not to be construed so as to deprive infants, lunatics, &c., of the protection given to them by the common law. In this case the liability, though statutory, is still in the nature of contract, and is subject to the ordinary rules as to the competency of contracting parties. The true principle is that a railway shareholder is not a mere contractor, but a purchaser of an interest in a subject of a permanent nature with certain obligations attached to it; and those obligations he is bound to discharge, though they arose while he was a minor, unless he has renounced the interest. A mere absence of ratification is no sufficient defence, even if coupled with the allegation that the defendant has derived no profit from the shares. For if the property is unprofitable or burdensome, it is the holder's business to disclaim it on attaining his full age, if not before; and it is by no means clear that he could exonerate himself even during his minority by showing that the interest was not at the time beneficial, unless he actually disclaimed it (i). Comparing the analogous case of a lease, the Court said— "We think the more reasonable view of the case is that the infant, even in the case of a lease which is disadvantageous to him, cannot protect himself if he has taken possession, and if he has not disclaimed, at all events unless he still be a minor" (k). In all the decided cases the party appears to have been of full age at the time of the action being brought, but there is nothing to show that (except possibly in the case of a disadvantageous contract) he might not as well be sued during his minority. (h) Lord Denman, C.J., and Patteson, J., in Cork & Bandon Ry. Co. v. Cazenore, 10 Q. B. 935. (i) It is submitted that in such a case the disclaimer if made would P. conclusively determine his interest and not merely suspend it. (k) Lond. & N. W. Ry. Co. v. M Michael, 5 Ex. 114, 20 L. J. Ex. 97, 101. F Liability on beneficial contract. Qu. extent of the rule? The same results, except perhaps as to suing the shareholder while still a minor, would follow from the general principles of the law of partnership even if the company in which the shares were held had not any permanent property. 3. Of the liability of an infant when the contract is for his benefit, and especially for necessaries. It has been laid down in general terms that if an agreement be for the benefit of an infant at the time, it shall bind him (7). We are not aware, however, that this rule has been applied in practice, except in the case of obligations coupled with interests in property (where it is not clear, as above said, that the question of benefit is material), and except so far as an infant's liability for necessaries is founded on this reason. The rule has also been expressed more widely in the converse form, that the contract is binding unless manifestly to the infant's prejudice (m). But this, it is submitted, goes too far. The contract before the Court was that of an apprentice with a master; and this and other cases (n) certainly show that such a contract, or an ordinary contract to work for wages, will, if it be reasonable, be considered binding on the infant to this extent, that he may no less than an adult incur the statutory penalties for unlawfully absenting himself from his master's employment (o). But it is distinctly laid down that an apprentice under age cannot be sued on the covenants made by him in the indenture of apprenticeship except by the custom of London (p). Again there are many conceivable cases in which it might be for an (1) Bacon Ab. Infancy, I. 3, 4, 360; Maddon v. White, 2 T. R. 159. (m) Cooper v. Simmons, 7 H. & N. 707, 721; per Wilde, B. Not so strongly put in the L. J. report, 31 L. J. M. C. 138, 144. (n) Wood v. Fenwick, 10 M. & W. 195. (0) In Leslie v. Fitzpatrick, 3 Q. B. D. 229, a case of summary proceedings under the Employers and Workmen Act, 1875, it may be collected that the facts were of the same kind, though the employer's plaint was in terms for a breach of contract. (p) Bacon Ab. Infancy A. 4. 340. infant's benefit, or at least not manifestly to his prejudice, to enter into trading contracts, or to buy goods other than necessaries: one can hardly say for example that it would be manifestly to the disadvantage of a minor of years of discretion to buy goods on credit for re-sale in a rising market; yet there is no doubt whatever that such a contract would at common law be voidable at his option. Nor has it ever been suggested that an infant partner or shareholder is at liberty to disclaim at full age only in case the adventure has been unprofitable or is obviously likely to become so. However, inasmuch as since the Infants' Relief Act, 1874, an infant's contract, if not binding on him from the first, can never be enforced against him at all, it seems quite possible that the Courts may in future be disposed to extend rather than to narrow the description of contracts which are considered binding because for the infant's benefit. Liability saries. 3a. Contracts for necessaries. The leading authority on this subject is now the for necesjudgment of the Exchequer Chamber in Ryder v. Wombwell (q), from which the following introductory statement is taken : "The general rule of law is clearly established, and is that an infant is generally incapable of binding himself by a contract. To this rule there is an exception introduced, not for the benefit of the tradesman who may trust the infant, but for that of the infant himself. This exception is that he may make a contract for necessaries, and is accurately stated by Parke, B. in Peters v. Fleming (r). From the earliest time down to the present the word necessaries is not confined in its strict sense to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular person in the state, degree and station in life in which he is; and therefore we must not take the word necessaries in its unqualified sense, but with the qualification above pointed out."" What in any particular case may fairly be called What are necessary in this extended sense, is what is called a saries: a (9) L. R. 4 Ex. 32, 38; in the Court below L. R. 3 Ex. 90. (r) 6 M. & W. at p. 46. neces mixed fact and law. question of question of mixed fact and law. The provinces of the Court and the jury respectively seem to be as we now proceed to state. The Court says if necessary. The station and circumstances of the defendant and the things are particulars of the claim being first ascertained, it is then prima facie for the Court to say whether the things supplied are prima facie such as a jury may reasonably find to be necessaries for a person in the defendant's circumstances, or "whether the case is such as to cast on the plaintiff the onus of proving that the articles are within the exception [i.e., are necessaries], and then whether there is any sufficient evidence to satisfy that onus." In the latter case the plaintiff must show that although the articles would generally not be necessary for a person in the defendant's position, yet there exist in the case before the Court special circumstances that make them necessary. Thus articles of diet which are prima facie mere luxuries may become necessaries if prescribed by medical advice (s). It is said that in general the test of necessity is usefulness, and that nothing can be a necessary which cannot possibly be useful. It is obvious, however, that it is in truth a question of common sense and experience what is or is not reasonably required by a person in a given station and circumstances, and one on which not much light can be thrown by the statement in a general form of rules founded on extreme cases. It is to be borne in mind that the question is not whether the things are such that a person of the defendant's means may reasonably buy and pay for them, but whether they can be reasonably said to be so necessary for him that, though an infant, he must obtain them on credit rather than go without. For the purpose of deciding this question the Court will take judicial notice of the ordinary customs and usages of society (t). The jury says if they are If on these preliminary considerations the Court decides that there is evidence on which the supplies in question (s) See Wharton v. Mackenzie, 5 (t) L. R. 4 Ex. at p. 40. Q. B. 606, 13 L. J. Q. B. 130. |