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, or perry consumed on the premises where sold, is irrecoverable at law (2). There is no similar enactment as to wine. Irrecover ability of price of intoxicating liquor (except wine) drunk where sold. Commence ment, at 21 years of age, of absolute capacity to contract. Domicile. Contract by infant, except for necessaries, voidable at SECT. 4.-Contracts with Infants (a). 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 common law. 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 : Infants' Contract by infant void. No action on ratification. Infants' Relief Act, 1874. 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 (2) Sale of Spirits Act, 1750, 24 Geo. 2, c. 40 (Tippling Act), as amended by the Sale of Spirits Act, 1862, 25 & 26 Vict. c. 38, Chitty's Statutes, tit. "Intoxicating Liquors"; County Courts Act, 1888, 51 & 52 Vict. c. 43, s. 182, Chitty's Statutes, tit. "County Courts." (a) See Simpson on Infancy, 2nd ed. (1890), by E. J. Elgood. a coherent whole. But as to sect. 1, it appears, from the same CH. VII. s, 4. case, not to apply to all contracts universally, but only to the very numerous contracts specified, being either: (1) Contracts to repay loans, or (2) Contracts for goods supplied, or (3) Accounts stated. Contracts with Infants. Infants 1874. settlements. contracts. The section therefore does not apply to a settlement of pro- Marriage 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 (g). 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 age (h). The words "absolutely void" must be read as meaning "Absolutely "incapable of ratification so as to charge the infant" (i), other contract partly executed by void." Irrecoverability of money paid for things wise an infant could not sue on a him, as he might before the Act (k). construed so unreasonably as to allow an infant to recover back money which he has paid for something which he has consumed or used, as was held where an infant had agreed to become 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 (l). 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 he comes of age to pay any money which in whole or in part represents or is agreed to be paid in respect of any such loan and is not a new advance, such agreement, and any instrument, negotiable or other, given in pursuance of, or for carrying into effect such agreement, or otherwise in relation to the 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." 66 used. It was no answer, at law, to a plea of infancy, that the defendant, Fraudulent at the time of entering into the contract fraudulently represented tions of full representa age. Bartlett v. CH. VII. 8. 4. himself to be of full age; and that the other party, believing this Infants. Fraudulent representa tion of full age. Bartlett v. Wells. How far the Ryder v. What are necessaries. Reference to age, state, and degree. Wharton v. representation, and on the faith thereof, contracted with him (m); nor did these facts, before the Judicature Acts, form the subject of a good replication, on equitable grounds, to a plea of infancy (n). But a Court of Equity would grant relief against the infant, not on the ground of contract, or debt, but of an equitable liability resulting from the fraud (o); 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, how ever, 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. At the outset of the question of liability for necessaries, it is important to observe, that although the question whether, in any given case, certain things are or are not "necessaries" is one of fact; still the affirmative of that question lies on the plaintiff; 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). Such things as relate immediately to the person of an infant, as his necessary meat, drink, apparel, lodging, and medicine, are clearly necessaries for which he is liable (s). But the term "necessaries is not confined to such matters only as are positively essential to the infant's personal subsistence or support; it is also employed to denote articles purchased for 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), 1 Sid. 258. (n) Bartlett v. Wells (1862), 1 B. & S. 836; followed in De Roo v. Foster (1862), 12 C. B. N. S. 272. (0) See Ex parte Unity Joint Stock Bank (1858), 27 L. J., B. 33; Nelson v. Stocker (1859), 28 L. J., Ch. 760; Ex parte Jones (1881), 18 Ch. D. 109, C. A.; Lemprière v. Lange (1879), 12 Ch. D. 675 and p. 149, infra (lease cancelled); Pollock on Contracts, 7th ed., at p. 76. As to possible criminal liability for obtaining money on false pretence, see s. 88 of Larceny Act, 1801, Chit. Stat. tit. "Criminal Law." (p) See the analogous point on the Statute of Limitations so decided in Gibbs v. Guild (1881), 8 Q. B. D. 296 ; and Ch. XX., sect. 8, post. (q) Ex parte Jones (1881), 18 Ch. D. 109, C. A., overruling Ex parte Lynch (1876), 2 Ch. D. 227. (r) Ryder v. Wombwell (1868), L. R., 4 Ex. 32, Ex. Ch. ; and see Brooker v. Scott (1843), 11 M. & W. 67; Harrison v. Fane (1840), 1 Scott, N. R. 287; Maddox v. Miller (1813), 1 M. & S. 738. (s) Co. Litt. 172 a; Bac. Abr. Infancy (I.) 9; Com. Dig. Enfant (B.), 5. (t) Wharton v. M Kenzie (1844), 5 Q. B. 606; Peters v. Fleming (1840), 6 M. & W. 42; per Lord Kenyon, C.J., Hands v. Slaney (1800), 8 T. R. 578. CH. VII. s. 4. Contracts with Infants (Necessaries). servant of an infant, who was a captain in the army, was held to be necessaries for which he was liable; but he was considered not to be liable for cockades ordered for some of the soldiers of his 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). Act. 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 (z). 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 (b). for wife or children. Necessaries for an infant's wife are necessaries for him (c); Necessaries and the costs of preparing a marriage settlement are necessaries (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 (ƒ). So, a person who purchased necessaries for an infant, at his request, was held, at common law, to be entitled to sue the infant for money paid to his use (g). (u) Hands v. Slaney (1800), 8 T. R. 578. (c) Coates v. Wilson (1804), 5 Esp. 152; 8 R. R. 841. (y) Barolles v. Ramsey (1815), Holt, N. P. R. 77. (2) Hart v. Prater (1837), 1 Jur. 623. (a) Clowes v. Brooke (1739), 2 Str. 1101. (b) Lowe v. Griffith (1835), 1 Scott, 458; but see post, p. 149. Repayment of purchaser. CH. VII. s. 4. Contracts with Infants (Apprentice ship, &c.). An infant is liable to pay for his teaching. Walter v. Contracts of hiring and service, binding on. (c) Contracts of Apprenticeship and other beneficial Contracts. "An infant may bind himself to pay for his good teaching or instruction, whereby he may profit himself afterwards" (h), although if he be placed at school by a parent or guardian it is implied that credit is given to the parent or guardian and not to him (i). So, it was said in Manby v. Scott (k), that he may contract to pay so 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 binding on him; and held by the Court of Appeal in Walter v. 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. But although an infant may, by indenture, bind himself apprentice, because that is for his benefit (n), still an action is not maintainable against him on his covenant to serve, in such indenture. This was decided in Gilbert v. Fletcher (0), 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 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). v. Barnum. Agreement not to com- Erans v. But a mere contract of service by which an infant in consideration of being employed as a milk carrier agreed not to compete in business within a radius of five miles for two years after leaving was held to have been beneficial to the infant and enforceable against him by injunction after his majority (q). 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). (h) Co. Litt. 172 a. (i) Duncomb V. Tickridge (1648), Aleyn, 94; Bac. Abr. Infancy. (k) Manby v. Scott (1659), 1 Sid. 112. (1) Pickering v. Gunning (1629), Sir W. Jones, 182; S. C., Palm. 528; and 1 Roll. Abr. Enfants, 729. (m) Walter v. Everard, [1891] 2 Q. B. 369; apparently inconsistent with the ruling of Lord Kenyon in Smith v. Gibson (1796), Peake, Add. Cas. 52. (n) Cooper v. Simmons (1862), 7 H. & N. 707; Rex v. Inhabitants of Arundel (1816), 5 M. & S. 257; 17 K. R. 317. (0) Gilbert v. Fletcher (1629), Cro. Car. 179. (p) De Francesco v. Barnum (1889), 43 Ch. D. 166, per Chitty, J. See also De Francesco v. Barnum (1890), 45 Ch. D. 430, in which the deed was held to be void on the ground of its containing stipulations of an "extraordinary and unusual character," so that no action would lie for enticing an infant balletdancer-a girl of 14 at the time of the contract-to break it. (q) Evans v. Ware, [1892] 3 Ch. 502, per North, J. (r) Stanton's case (1583), Moore, 135; Horn v. Chandler (1671), 1 Mod. 271. |