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to stand by his contract; and his confirmation of the act or deed of his infancy, may be justly inferred against him after he has been of age for a reasonable time, either from his positive acts in favour of the contract, or from his tacit assent under circumstances not to excuse his silence. In Curtin v. Patton,* the court required some distinct *act by which the infant either received a *239 benefit from the contract after he arrived at full age, or did some act of express and direct assent and ratification: but that was the case of a contract considered to be absolutely void. In the case of voidable contracts, it will depend upon circumstances, such as the nature of the contract, and the situation of the infant, whether any overt act of assent or dissent on his part be requisite to determine the fact of his future responsibility.1"

(4.) Acts binding on the infant.

Infants are capable, for their own benefit and for the

• 11 Serg. $ Rawle, 305. In Kline v. Beebe, 6 Conn. Rep. 494, this •ubject was very fully discussed and considered, and it was held, that there were three modes of affirming the voidable contracts of infants, when they arrived at full age. 1. By an express ratification. 2. By acts which reasonably imply an affirmance. 3. By the omission to disaffirm within a reasonable time. This is the rule also declared in Richardson v. Boright, 9 Vermont Rep. 365, and essentially in Holt v. Underbill, 9 N. H. Rep. 439, and it may here be observed generally, that to give validity to a voidable contract by the ratification of the party, the party must be folly apprized of his rights, and do the act deliberately and upon examination. By the English statute of May 9th, 1828, entitled "an act for rendering a written memorandum necessary to the validity of certain promises and engagements," an infant is not chargeable upon any promise or ratification after full age, of any promise or simple contract made during infancy, unless such promise or ratification be made by writing signed by the party to be charged. See Hartley v. Wharton, 11 Adolp. $ Ellie, p. 934, on the construction of this statute of May, 1828, (9 Geo. IV. c. 14.) in which the energy of the statute is very much weakened.

b In Hoyle v. Stowle, 2 Dev. $ Battle, 320, it was decided, upon a full consideration of the subject, that to ratify an infant's bargain and sale, after full age, some act must be done denoting that the estate created by the deed was subsisting, as the receipt of the purchase money, &c. Declarations must be very clear, and with a view to ratification, to be sufficient.

safety of the public, of doing many binding acts. Contracts for necessaries are binding upon an infant, and he may be sued and charged in execution on such a contract, pro»ided the articles were necessary for him under the circumstances and condition in which he was placed.' The question of necessaries is governed by the real circumstances of the infant, and not by his ostensible situation; and, therefore, the tradesman who trusts him is bound to make due inquiry, and if the infant has been properly supplied by his friends, the tradesman cannot recover.1" Lord Coke considers the necessaries of the infant to include clothing, victuals, medical aid, and "good teaching or instruction, whereby he may profit himself afterwards."0 If the infant lives with his father or guardian, and their care and protection are duly exercised, he cannot bind himself even for necessaries.d It is

» Ive v. Chester, Cro. J. 560. Clarke v. Leslie, 5 Esp. N. P. 28. Coatea v. Wilson, ibid. 152. Barolles v. Ramsey, 1 Holt's Rep. N. P. 77. Though the negotiable note which an infant gires for necessaries be void, yet he is liable for the reasonable value of the necessaries. M'Minn v. Richmouds, 6 Yerger's Tenn. Rep. 1. What are necessaries for an infant depends on his relative situation, and are not always to be taken in the strictest sense, but with a reasonable qualification under the circumstances. The Queen's Bench in Wharton v. Mackenzie, and Cripps S. Hills, 5 Adol. <$- Ellis, 606, where the cases were much discussed, adopted the rule laid down by Baron Parke in Peters v. Fleming, 6 3f. <f W. 46.

o Ford v. Fothergill, Peake's N. P. 239. Story v. Perry, 4 Can. $ Payne, 526. Steedman v. Rose, I Carr. <$- Marshman, 422. It is a tradesman's duty to acquaint himself with the infant's circumstances and necessities, and to take notice of supplies by other tradesmen. Johnson v. Lines, 6 Watts 4/ Serg. 80. But though an infant has a sufficient income allowed him to supply him with necessaries suitable to his condition, yet his contract for necessaries is nevertheless binding. Burghart v. Hull, 4 Meeson <f Welsby, 727.

« Co. Litt. 172. a.

d Bainbridge v. Pickering, 2 Black. Rep. 1325. Wailing v. Toll, 9 Johns. Rep. 141. Hull v. Connolly, 3 WCord's L. R. 6. Kline S. L'Amourenx,2 Paige's Rep. 419. But ifthe infant lives apart from his father, with his assent, and labours for his own use, he is liable for necessaries furnished him. Madox v. Miller, 1 Maule. <f Sel. 738. Smith v. Young, 2 Der. 4> Bait. 26.

also understood, *that necessaries for the infant's *240 wife and children, are necessaries for him ;a and all cases of contracts for necessaries, the real consideration may be inquired into.b The infant is not bound to pay for the articles furnished, more than they were really worth to him as articles of necessity, and, consequently, he may not be bound to the extent of his contract; nor can he be precluded, by the form of the contract, from inquiring into the real value of the necessaries furnished.0 Infancy is not permitted to protect fraudulent acts; and, therefore, if an infant takes an estate, and agree* to pay rent, he cannot protect himself from the rent, by pretence of infancy, after enjoying the estate, when of age. If he receives rents, he cannot demand them again when of age, according to the doctrine as now understood. If an infant pays money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid."1 On the other hand, if he avoids an executed contract when he comes of age on the ground of infancy, he must restore

• Turner v. Trisby, Sir. Rep. 168. Though the husband be an infant, there are cases in which he has been held liable to pay the debts of his wife of full age, contracted by her before marriage ; such liability being an incident to the marriage contract, which an infant is competent to enter into. Paris V. Stroud, Barnes' Notes, 95. Roach v. Quick, 9 Wendell's Rep. 238. Butler v. Breck, 7 Metcalf, 164.

> In Chappie v. Cooper, 13 Meeson <J• Welsby, 252, it was held on the maxim of Lord Bacon persona conjuncta equiparatur interesse proprio, that an infant widow was liable for the expenses of the funeral of a deceased husband who died poor, as being an expense for her personal benefit.

< Makarell v. Bachelor, Cro. Eliz. 583.

d Burton V. Elliott, 2 Bulst. Rep. 69. Lord Mansfield, in Earl of Buckinghamshire v. Drury, 2 Eden's Rep. 72. Holmes v. Blogg, 8 Taunt. Rep. 580. M'Coy v. Hoffman, 8 Cowen's Rep. 84. Harney v. Owen, 4 Blackf. Ind. Rep. 240. The case of McCoy v. Hoffman was overruled in Medbury v. Watrous, 7 Hill N. Y. R. 110, on the principle that when an infant avoids his contract on coming of age, he may recover for work done or money paid in part performance provided he has not received any bene. fit under the contract.

the consideration which he had received. The privilege of infancy is to be used as a shield, and not as a sword. He cannot have the benefit of the contract on one side, without returning the equivalent on the other.* But there are many hard cases in which the infant cannot be held bound by his contracts, though made in fraud; for infants would lose all protection if they were to be bound by

their contracts made by improper artifices, in the *241 heedlessness *of youth, before they had learned

the value of character, and the just obligation of moral duties. When an infant had fraudulently represented himself to be of age when he gave a bond, it was held that the bond was void at law.1" But where he obtained goods upon his false and fraudulent affirmation that he was of age, though he avoided payment of the price of the goods, on the plea of infancy, the vendor was held entitled to reclaim the goods, as having never parted with his property in them ;c and it has been suggested in another case,d that there might be an instance of such gross and palpable fraud, committed by an infant arrived at the age of discretion, as would render a release of his right to land binding upon him. Infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault; or constructive torts, or frauds.e But the fraudulent act, to charge him must

» Badger v. Phinney, 15 Mass. Rep. 339. Roberts v. Wiggin, 1 N. H. Rep. 73. Roof v. Stafford, 7 Coven's Rep. 179. Parker, J., in HsmUett v. Hamblett, 6 N. H. Rep. 339. Smith v. Evans, 5 Humphrey's Tenn. R. 70. Kitchen v. Lee, N. Y. Ch. 3. N. Y. Legal Obsereer, 160.

s Conroe v. Birdsall, 1 Johns. Cos. 127. Barley v. Russell, 10 AT. H. Rep. 184.

• Badger v. Phinney, 15 Mass. Rep. 359. Fitts v. Hall, 9 N. H. Sep. 441. Com. Dig. Action on the case for deceit, A. 10. In this last case, Lord Ch. B. Comyns, held an infant liable for deceit in obtaining a loan of money on the fraudulent affirmation that he was of age. Barley v. Rassel, sup. S. P.

Stoolfoos v. Jenkins, 12 Serg. $ Rawle. 399.

• Fitts v. Hall, 9 N. H. Rep. 441, 448. They are liable for trespasses committed by them, even though acting by command of the father. Humphrey v. Douglass, 10 Vermont Rep. 71.

be wholly tortious; and a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover, or case, by a change in the form of the action.* He is liable in trover for tortiously converting goods intrusted to him, or for fraudulently obtaining goods with an intention not to pay for them ;b and in detinue, for goods delivered upon a special contract for a specific purpose ;c and in assumpsit for money which he has fraudulently embezzled."1

*An infant has a capacity to do many other acts *242 valid in law. He may bind himself as an apprentice, or make a contract for service and wages, it being an act manifestly for his benefit; but, when bound, he

* Jennings v. Rundall, 8 Term. Sep. 335. Johnson v. Pie, 1 Lev. 169. Vasse V. Smith, 6 Crunch, 226. West v. Moore, 14 Vermont R. 447. Wilt v. Welsh, 6 Watts, 1. In this last case the decisions were elaborately considered, and it was held, that whenever the substantive ground of an action against an infant is contract, as well as where the contract is stated as inducement to a supposed tort, he is not liable: and the case of Campbell v. Stokes, 2 Wendell, 137, was considered as opposed equally to principle and authority. This last case was one of wilful and positive fraud and tort on the part of the infant, and subsequent to the contract, and a wilful and distinct wrong; and the infant was held liable in trespass, and I think, justly; and the judgment was affirmed on error, and cited and approved in Fitts v. Hall, 9 N. H. Rep. 445.

» Homer v. Thwing, 3 Pick. Rep. 492. Peigne v. Sutcliffe, 4 M'Cord, 387. Wallace v. Moras, 5 Hill N. Y. Rep. 391. His property is liable for fines and costs on conviction of a public offence. Beasley v. The State, 2 Yerger's Tenn. Rep. 481.

• Mills v. Graham, 4 Bos. Pull. 140. In New-York, the action of detinue is abolished, and an action of trespass on the case may be brought to recover damages even for a wilful injury, accompanied with force. By this innovation, all nice questions concerning direct and consequential injuries are avoided. But the want of such an action as detinue to recover a favourite or necessary specific chattel in specie, may be seriously felt. 1V. Y. Revised Statutes, vol. ii. p. 553, sec. 15, 16.

4 Bristow v. Eastman, 1 Esp. Rep. 172. By the N. Y. Revised Statutes, voL ii. p. 341, see. 12, no action relating to real property is to be delayed by reason of the infancy of any defendant, and a guardian is to be appointed to defend his rights.

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