bind himself by contracts made in trade, although looking at it with regard to the present state of education and society, it may appear somewhat unreasonable in its operation, yet, looking at it upon general principles, it is capable of being defended by some strong arguments. The consequences of failure in trade are so fatal, not merely to the property, but often to the reputation of the unsuccessful trader. A failing trader is so often, in his struggles to save himself from utter shipwreck, and to keep up a good *appearance in the sight of the world, induced

to have recourse to disingenuous and reprehen- [*211] sible expedients, that, possibly upon reflection, it may be thought not unwise to guard young persons up to a certain point against the accidents and temptations of mercantile speculation, and to insure to them as far as possible, the advantages of starting fair in life with fortunes unimpaired and characters unblemished. How grievous would be the situation of a young person beginning life at one-and-twenty an uncertificated bankrupt. Now, against such a chance, the law as it now stands effectually guards him; for, as an infant cannot trade, he cannot become bankrupt; and it has been decided that a fiat against him is void; Belton v. Hodges, 9 Bing. 365, 23 E. C. L. R. Again, the general principle being that an infant shall be bound by no contract which is not beneficial to him, it is held that he can engage in none in which the performance of the contract is secured by a penalty; for that it cannot be for his advantage to become subject to a penalty; and, therefore, though the old books lay it down that he may bind himself by a deed to pay for necessaries, (a) yet it is clearly settled that he cannot

(a) See Cockshott v. Bennett, 2 T. R. 766, per Ashurst, J.; S. P. Tapper v. Davenant, Bull. N. P. 155.

do so by a bond containing a penalty; Ayliff v. Archdale, Cro. Eliz. 920; Corpe v. Overton, 10 Bing. 252, 25 E. C. L. R. A variety of other examples might be given; but I think what I have said "sufficient

[*212] to explain the general nature of an infant's lia

bility and exemption from liability.

Now, therefore, the general rule being that an infant cannot bind himself except for necessaries, next comes the question-Suppose he do, in fact, enter into a contract for something not falling under that denomination, what will be the consequence? In the first place, no action can be maintained against him during his infancy upon any such contract, nor afterwards, unless he elect to confirm it. But, in the second place, the contract is not absolutely void but voidable; (a) and, therefore, when he arrives at the age of twentyone, he may confirm it, and, if he do so, he will become liable to an action upon it.

I will exemplify this by the case of Goode v. Harrison, which I have already cited from 5 B. & A. 147, 27 E. C. L. R. A person of the name of Goode entered into a trading partnership with an infant under the age of twenty-one, called Bennion; a third person, named Harrison, supplied them with goods, and after Bennion

(a) In Thornton v. Illingworth, 2 B. & Cr. 824, 9 E. C. L. R.; Bayley, J. says that, "in the case of an infant, a contract made for goods for the purposes of trade is absolutely void, not voidable only;" and Littledale, J., says the same. Parke, B., however, in Williams v. Moor (supra), holds that the promise is not void in any case, unless the infant chooses to plead his infancy. See the next note, p. 214. [Reed v. Batchelder, 1 Met. 559; Aldrich v. Grimes, 10 N. Hampshire, 194; and the contract is voidable only by the infant himself, or in case of his death, his personal representatives, and not by sureties or strangers; Roberts v. Wiggin, 1 New Hamp. 73; Oliver v. Hondlet, 13 Mass. 237; Parker v. Baker, 1 Clarke's Ch. 136.]

1 See note to page 209, supra.

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came of age, he took no step to signify to the world that he disclaimed the connexion with Goode, but, on the contrary, allowed it to be supposed that he was *still in partnership with him. After this, Harrison supplied Goode with more articles, and brought an action against him for the price, jointly with Bennion, as a co-defendant. Bennion set up his infancy, and urged that, as an infant cannot bind himself by a contract made in the course of trade, his agreement, while under age, to become Goode's partner was not binding upon him, and consequently, that, not being Goode's partner, he was not liable for the articles supplied to him. On the other hand, it was urged that admitting the partnership contracted while he was an infant to be voidable, it was nevertheless in his option, when he arrived at his full age of one-and-twenty, to adopt and confirm it: that by his conduct he had done so; and that consequently he was liable for the goods supplied afterwards. The question was argued, as you may suppose, with great ability, the counsel being Baron Parke and the late Mr. Justice Littledale. The court decided in favour of the plaintiff. The principle is clearly and strictly laid down in the judgment of Mr. Justice Bayley

"It is clear," said his lordship, "that an infant may be in partnership. It is true that he is not liable for contracts entered into during his infancy; but still he may be a partner. If he is in point of fact a partner during his infancy, he may, when he comes of age, elect, whether he will continue that partnership or not. If he continues the partnership, he will then be liable as partner. If he dis

A question may here arise as to the extent of the liability for the previous debts of the firm, and in Miller v. Sims, 2 Hill (S. C.), 479, it was held, that inasmuch as in general one partner could bind the firm by contracts made without the knowledge of the other, to say that one may enter into or affirm a partnership without incurring these liabilities, would be to say that one may affirm a contract of

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solve the partnership, and, if when of age, he take the proper means *to let the world know that the partnership is dissolved, [*214] then he will cease to be a partner."

It is easy to apply this mode of reasoning to any other sort of contract: see also Southerton v. Whitelock, 1 Str. 690. However, in order to prevent persons from inconsiderately confirming contracts made by them during infancy, and to obviate the danger of attempts to foist such confirmation on them by false evidence, it is enacted by 9 Geo. 4, c. 14, s. 5, that no action shall be maintained whereby to charge any person upon any promise made, after full age, to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made, by some writing, signed by the party to be charged therewith. See, for a decision on this Act, Hartley v. Wharton, 11 Ad. & E. 934, 39 E. C. L. R.(a)1

(a) In the cases where, as we have seen, it has been questioned, whether contracts by infants were not void ab initio, it has also been held that they were consequently incapable of ratification. In Williams v. Moor, 11 M. & W. 256, the point was raised, whether a contract on the account stated was not void, and the subsequent ratificapartnership, and disaffirm that which is inseparably incident to it, and the defendant, who had, by his acts of receiving partnership funds, &c., affirmed a partnership, begun while he was yet an infant, was therefore held liable on a note given by the other partner, before such affirmation, of which he had no knowledge, and which he refused to pay when informed of it. A decision, apparently to the contrary, in Crabtree v. May, 1 B. Monroe, 289, will, on examination, be found to have turned on the insufficiency of the replication.

'It has been seen in a former part of these lectures, that any acknowledgment, not inconsistent with a promise to pay, such as a partial payment, will be sufficient to remove the bar of the Statute of Limitations. It is not so, however, with respect to the ratification of con

Now, then, such being the effect of an infant's *contract with regard to the infant himself, it remains only to say a word or two as to their

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tion therefore was of no avail; but the Court of Exchequer held, as before stated, that there was just the same reason why an infant coming of age should be allowed to confirm an account stated, as to make himself liable on any other contract which he might have entered into during his infancy. Mr. Baron Parke, moreover, held, as we have seen, that the promise is not void in any case; and this is certainly now the prevailing opinion.

The ratification sets up and gives validity to an otherwise invalid contract; it "removes the bar of infancy;" it is not therefore of the nature of a new contract; for the only consideration is the moral duty arising from the previous transaction; and that is no consideration at all (Jennings v. Brown, 9 M. & W. 501, per Parke, B.); but it gives legal effect to the original obligation, and to all its concomitants. The question of consideration therefore does not arise on the ratification, but relates to that of the old contract, upon which the plaintiff should declare, and not upon its revival, according at least to the form of pleading in Cohen v. Armstrong, 1 M. & Sel. 724; Thornton v. Illingworth, 2 B. & Cr. 824, 9 E. C. L. R.; and Hartley v. Wharton. It is not easy to see how the want of consideration for the new promise could be otherwise got over in the face of Monckman v.

tracts made during infancy. There must either be a direct affirmation (as in the case cited, supra, by continuing the business, or, in the case of a chattel, by retention of the possession, selling it again, or the like; sec Lawson v. Lovejoy, 8 Greenleaf, 405; Aldrich v. Grimes, 10 New Hampshire, 194; Kline v. Beebe, 6 Connect. 494; Boyden v. Boyden, 9 Metcalf, 519; Thomasson v. Boyd, 13 Alabama, 419; Merreweather v. Herran, 7 B. Monroe, 162); or an express promise to pay, made voluntarily, with full knowledge of the liability thus incurred, made to the party himself or his agent, and not to a mere stranger having no interest; Hinely v. Margaritz, 3 Barn. 428; Ford v. Phillips, 1 Pick. 202; Pierce v. Tobey, 5 Met. 168; Hale v. Gerrish, 5 N. Hampshire, 374; Millard v. Hewlett, 19 Wendell, 301; Wilcox v. Roath, 12 Conn. 551; a mere acknowledgment, or partial payment will not suffice; Goodsell v. Myers, 3 Wendell, 481; Robbins v. Eaton, 10 N. Hamp. 561; Hinely v. Margaritz, supra, for the law will imply no promise in the case of an infant, as has been seen, except for necessaries.