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CH. VII, s. 3. The price of spirits contracted for at one time to the value of Drunkards. 20 shillings, and (without restriction) of ale, porter, beer, cider, Irrecover- or perry consumed on the premises where sold, is irrecoverable at ability of price of in
law (2). There is no similar enactment as to wine. toxicating liquor (except wine) drunk where sold.
Commencement, at 21 years of age, of absolute capacity to contract.
Contract by infant void.
SECT. 4.—Contracts with Infants (a).
(a) Generally. The age of twenty-one years (b) has been fixed, as the period when an absolute and unlimited legal capacity to contract shall commence. This limit was probably adopted by analogy to the feudal law, by which the tenant was presumed to have at twentyone, sufficient strength to attend his lord in the wars; and therefore ceased to be the ward of his guardian in chivalry (c).
Infancy is a personal incapacity regulated by the law of the domicile of the party contracting (d).
The general rule is, that the contract of an infant, however fair and conducive to his interest it may be, is not binding on him, unless it be for necessaries (e); but up to 1874 the contracts of an infant, except for necessaries, were voidable only, and not void. But the Infants' Relief Act, 1874, 37 & 38 Vict. c. 62, materially altered the law, by providing in sect. 1 that:
All contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants shall be absolutely void; provided always, that this enactment shall not invalidate any contract into which an infant may by any existing or future statute, or by the rules of common law or equity, enter except such as now by law are voidable.
And in sect. 2 that:
No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age.
It is indeed difficult, as was said by Kekewich, J., in Duncan v. Dixon (f), to connect these two sections together, so as to make
(z) Sale of Spirits Act, 1750, 24 Geo. 2, (6) Co. Litt. 78 b. c. 40 (Tippling Act), as amended by the (c) Co. Litt. 78 b. Sale of Spirits Act, 1862, 25 & 26 Vict. (d) Cooper v. Cooper (1888), 13 App. c. 38, Chitty's Statutes, tit. “ Intoxicat- Cas. 88. ing Liquors ”; County Courts Act, 1888, (e) Co. Litt. 172 a; Bac. Abr. In51 & 52 Vict. c. 43, s. 182, Chitty's fancy (I.), 3. Statutes, tit. “County Courts."
(f) Duncan v. Dixon (1890), 44 Ch. D. (a) See Simpson on Infancy, 2nd ed. at p. 215. (1890), by E. J. Elgood.
No action on ratification.
Infants Relief Act, 1874.
a coherent whole. But as to sect. 1, it appears, from the same CH. VII. 8, 4.
Contracts case, not to apply to all contracts universally, but only to the
with Infants. very numerous contracts specified, being either :
Infants (1) Contracts to repay loans, or
Relief Act, (2) Contracts for goods supplied, or
1874. (3) Accounts stated. The section therefore does not apply to a settlement of pro- Marriage
settlements, perty made by an infant on her marriage; such a settlement was voidable and not void before the Act, and is merely voidable, but not void after it (9). But the section applies to the trading Trading contracts of an infant, to whom persons give credit at their own risk, and whom they cannot make bankrupt in respect of the supply of goods on such credit, unless indeed it can be proved that the credit was given on the faith of an express misrepresentation by the infant that he was of The words “absolutely void ” must be read as meaning “ Absolutely
void." “incapable of ratification so as to charge the infant” (i), otherwise an infant could not sue on a contract partly executed by him, as he might before the Act (k). Neither must the words be construed so unreasonably as to allow an infant to recover back Irrecover
ability of money which he has paid for something which he has consumed
money paid or used, as was held where an infant had agreed to become for things
used. tenant of a house, and to pay for the furniture therein. After
Valentini v. occupying the house, and using the furniture for some months, Canali. he was held entitled to a declaration that the contract was void, but not to recovery of a sum paid on account (I).
By way of amplification of the 2nd section of the Act of 1874, the 5th section of the Betting and Loans (Infants) Act, 1892, 55 & 56 Vict. c. 4, enacts that :
“If any infant who has contracted a loan which is void in law agrees after Contract after he comes of age to pay any money which in whole or in part represents or is full age to agreed to be paid in respect of any such loan and is not a new advance, such pay loan agreement, and any instrument, negotiable or other, given in pursuance of, in infancy, or for carrying into effect such agreement, or otherwise in relation to the void. payment of money representing or in respect of such loan, shall, so far as it relates to money which represents or is payable in respect of such loan, and is not a new advance, be void absolutely as against all persons whomsoever.
“For the purpose of this section any interest, commission or other payment in respect of such loan shall be deemed to be a part of such loan.” It was no answer, at law, to a plea of infancy, that the defendant, Fraudulent
representaat the time of entering into the contract fraudulently represented tions of full
age. (y) Duncan v. Diron, supra. R. R. 634.
Bartlett v. (h) Jones, Ex parte (1881), 18 Ch. D. (k) See Waverick v. Bruce (1833), 2 Wells. 109, C. A., overruling Ex parte Lyn M. & S. 674. 2 no (1876), 2 Ch. D. 227.
(1) Valentini v. Canali (1890), 24 (i) See note to Warwick v. Bruce, 14 Q. B. D. 166. C.C.
tion of full
CH. VII. s. 4. himself to be of full age; and that the other party, believing this Infants.
representation, and on the faith thereof, contracted with him (m); Fraudulent nor did these facts, before the Judicature Acts, form the subject of representa
a good replication, on equitable grounds, to a plea of infancy (n). age.
But a Court of Equity would grant relief against the infant, not Bartlett v.
on the ground of contract, or debt, but of an equitable liability Wells.
resulting from the fraud (0); and it is conceived that such relief would, by virtue of the Judicature Acts, be obtainable in the King's Bench Division of the High Court (p). The representation, however, by the infant would have to be express for such relief to be grantable, and no representation that a trading infant is of full age arises out of the mere fact of his carrying on the trade (q).
(b) Liability for Necessaries. How far the
At the outset of the question of liability for necessaries, it is question of
important to observe, that although the question whether, in any necessaries is one of fact.
given case, certain things are or are not "necessaries" is one of Ryder v. fact; still the affirmative of that question lies on the plaintiff; Wombuell.
and that, therefore, where the trial is with a jury, the judge ought not to leave the question to the jury, unless he is satisfied that there is evidence, on which they could properly find in favour
of that party on whom the onus of proof lies (r). What are
Such things as relate immediately to the person of an infant, necessaries.
as his necessary meat, drink, apparel, lodging, and medicine, are
clearly necessaries for which he is liable (s). Reference to But the term necessaries" is not confined to such matters age, state, and only as are positively essential to the infant's personal subsistence Wharton v.
or support; it is also employed to denote articles purchased for M.Kenzie.
real use, as contradistinguished from such as are merely ornamental, or which are used as comforts or conveniences only; and it is a relative expression, to be construed with reference to the infant's age, state, and degree (t). Therefore, a livery for the
(m) See Johnson v. Pye (1665), i Sid. Statute of Limitations so decided in 258.
Gibbs v. Guild (1881), 8 Q. B. D. 296 ; (1) Bartlett v. Wells (1862), 1 B. & S. and Ch. XX., sect. 8, post. 836 ; followed in De Roo v. Foster (1862), (9) Ex parte Jones (1881), 18 Ch. D. 12 C. B. N. S. 272.
109, C. A., overruling Ex parte Lynch (0) See Ex parte Unity Joint Stock Bank (1876), 2 Ch. D. 227. (1858), 27 L.J., B. 33, Nelson v. Stocker (7) Ryder v. Wombucil (1868), L. R., (1859), 28 L. J., Ch. 760 ; Ex partc Joncs 4 Ex. 32, Ex. Ch. ; and see Brooker (1881), 18 Ch. D. 109, C. A. ; Lemprière v. Scott (1843), 11 M. & W. 67 ; Harri. v. Lange (1879), 12 (h. D. 675 and son v. Fane (1840), 1 Scott, N. R. 287 ; p. 149, infra (lease cancelled); Pollock Maddox v. Miller (1813), 1 M. & S. 738. on Contracts, 7th ed., at p. 76.
(s) Co. Litt. 172 a; Bac. Abr. Inpossible criminal liability for obtaining fancy (I.) 9 ; Com. Dig. Enfant (B.), 5. money on false pretence, see s. 88 of (t) Wharton v. M*Kenzie (1844), 5 Q. B. Larceny Act, 1801, Chit. Stat. tit. 606; Peters v. Fleming (1840), 6 M. & W. “ Criminal Law."
42 ; per Lord Kenyon, C.J., Hands v. (v) See the analogous point on the Slaney (1800), 8 T. R. 578.
servant of an infant, who was a captain in the army, was held to CH. VII. s. +. be necessaries for which he was liable ; but he was considered not
with Infants to be liable for cockades ordered for some of the soldiers of his (Necessaries). company (u). So Lord Ellenborough ruled, that an infant might be charged for regimentals sold to him as a member of a volunteer Regimentals. corps; on the ground that in perilous times, when young men had enrolled themselves in different corps for the defence of the country, clothes so furnished were necessaries (x). But a lieutenant in the Royal Navy, under the age of twenty-one, was held not to be responsible for the price of a chronometer, supplied to him at a Chronometer. time when he was not in commission, there being no proof that it was essential that he should have such an article (y).
It is expressly provided by sect. 2 of the Sale of Goods Act, Sale of Goods 1893, 56 & 57 Vict. c. 71, that where necessaries are sold and delivered to an infant he must pay a reasonable price therefor, and that “necessaries" in that section mean goods suitable to the condition of life of the infant and to his actual requirements at the time of the sale and delivery.
So, an infant is liable for the price or hire of horses, if it be Hiring horse. suitable to his fortune and rank in life that he should keep or use horses; or if this be rendered necessary by circumstances, as by his being ordered by his medical adviser to ride for exercise (2). And where he is so liable, he is also liable for any necessary work, such as shoeing, done to such horses (a).
So, an infant is liable for the rent of a necessary dwelling, Rent. according to his circumstances (6).
Necessaries for an infant's wife are necessaries for him (c); Necessaries and the costs of preparing a marriage settlement are neces- children. saries (d). So, an infant is liable for necessaries supplied to his lawful children, upon his express or implied credit (e). So, an infant husband or parent may contract for the burial of his wife or lawful children: and so may an infant widow for that of her husband (5). So, a person who purchased necessaries for an infant, at his Repayment of
purchaser, request, was held, at common law, to be entitled to sue the infant for money paid to his use (g).
for wife or
(u) Hands v. Slaney (1800), 8 T. R. 578.
(cm) Coates v. Wilson (1804), 5 Esp. 152 ; 8 R. R. 841.
(y) Barolles v. Ramsey (1815), Holt, N. P. R. 77.
(*) Hart v. Prater (1837), 1 Jur. 623.
(a) Clouces 6. Brooke (1739), 2 Str. 1101.
(6) Lowe v. Griffith (1835), 1 Scott, 458 ; but see post, p. 149.
(c) Per Pratt, C.J., Rainsford v. Fen. wick (1671), Carter, 215.
(d) Helps v. Clayton (1864), 17 C. B., N. S. 553 ; De Slacpoole v. De Sla poole (1887), 37 Ch. D. 139.
(e) Bac. Max. (edit. 1741), 86.
(f) Chapple v. Cooper (1841), 13 M. & W. 252.
(9) Ellis v. Ellis (1698), 5 Mod. 368 ; Earle v. Peale (1712), 10 Mod. 67.
Chi VII, s. 4. (c) Contracts of Apprenticeship and other beneficial Contracts.
Contracts with Infants
“ An infant may bind himself to pay for his good teaching or (Apprentice instruction, whereby he may profit himself afterwards” (1), although ship, Sc.).
if he be placed at school by a parent or guardian it is implied that An infant is liable to pay
credit is given to the parent or guardian and not to him (i). So, for his
it was said in Manby v. Scott (k), that he may contract to pay so teaching.
much for instructing him in reading and writing ; in Pickering v. Gunning (1), that a promise by a child of fourteen years of age,
to pay a reasonable sum for board, lodging, and schooling, was Walter v. binding on him ; and held by the Court of Appeal in Walter v. Ererard.
Everard (m) that the defendant was liable on a covenant in an apprenticeship deed made in infancy to pay the balance of a premium, the jury having found that the arrangement was proper
and that instruction had been given. Contracts But although an infant may, by indenture, bind himself of hiring and service,
apprentice, because that is for his benefit (11), still an action is binding on. not maintainable against him on his covenant to serre, in such
indenture. This was decided in Gilbert v. Fletcher (o), where the Court said that “if he misbehave himself, the master may correct him in his service, or complain to a justice of peace to
have him punished according to the statute ; but no remedy lieth De Francesco against an infant upon such covenant;” and it follows from this v. Barnum.
that a negative covenant in the deed, e.g., a covenant not to serve any other master, will not be enforced against the infant by
injunction (p). Agreement But a mere contract of service by which an infant in considera
tion of being employed as a milk carrier agreed not to compete in employer, business within a radius of five miles for two years after leaving enforced.
was held to have been beneficial to the infant and enforceable Erans v. Ware. against him by injunction after his majority (9).
There are early decisions to the effect that, by the custom of London, an infant might bind himself in an indenture of apprenticeship, so as to be subject to an action, even in the Courts at Westminster (1"). (1) Co. Litt. 172 a.
179. (i) Duncomo Tickridge (1648), (2) De Francesco v. Barnum (1889), 43 Aleyn, 94 ; Bac. Abr. Infancy.
Ch. D. 166, per Chitty, J. See also De (2) Mauby v. Scott (1659), 1 Sid. 112. Francesco v. Barnum (1890), 45 Ch. D. (2) Pickering v: Gunning (1629), Sir 430, in which the deed was held to be W. Jones, 182 ; S. C., Palm. 528; and void on the ground of its containing 1 Roll. Abr. Enfants, 729.
stipulations of an “ extraordinary and (m) Walter v. Everard,  2 Q. B. unusual character," so that no action 369 ; apparently inconsistent with the woull lie for enticing an infant balletruling of Lord Kenyon in Smith v. Gib- dancer-a girl of 14 at the time of the son (1796), Peake, Adil. Cas. 52.
contract-to break it. (n) Cooper v. Simmons (1862), 7 H. & N. (9) Evans v. Ware,  3 Ch. 502, 707 ; ker v. Inhabitants of Arundel
per North, J. (1816), 5 V. & S. 257 ; 17 R. R. 317. (r) Stanton's case (1583), Moore, 135 ;
(0) Gilbert v. Fletcher (1629), Cro. Car. Horn v. Chandler (1671), 1 Mod. 271.
not to com