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the cases of Jackson v. Carpenter, and Jackson v. Burchin, the infant had disaffirmed the voidable deed of his infancy, which was by deed of bargain and sale, by an act equally solemn, after he became of age. This is the usual and suitable course when the infant does not mean

is now (1827) lord chancellor, and the other chief justice of the C. B, treat this as an open and debateable point. Sergeant Copely insisted, that the infant's contract was binding on him when he became adult, because there had been no disaffirmance of it; and Sergeant Best contended, that disaffirmance was not necessary, and that infants were not bound by any contract, unless the same was affirmed by them after arriving at full age; and this is the decision in 4 Pick. Rep. 48. It has been held that an infant's conveyance may be disaffirmed at any time, so long as an action of ejectment is not barred by the statute of limitations. Lessee of Drake v. Ramsey, 5 Hammond's O. Rep. 251. Jackson v. Carpenter, 11 Johns. Rep. 539 to S. P. And in South Carolina it is held, that a simple declaration of the infant, on his coming of age, is not a sufficient confirmation of his voidable contract, unless it be accompanied by some act which recognizes the validity of the obligation. Ordinary v. Wherry, 1 Bayley's Rep. 28. In Wheaton v. East, 5 Yerger's Tenn. Rep. 41, the decision was, that a deed of confirmation of the minor's deed was not requisite, but that any act of the minor from which his assent to the deed executed during his minority, might be inferred, would operate as a confirmation, and conclude him.

■ 11 Johns. Rep. 539. 14 Ibid. 124. In Tucker v. Moreland, 10 Peter's U. S. Rep. 73, it was observed by Mr. Justice Story, that those two cases in Johnson proceeded upon principles, which were in perfect coincidence with the common law. In the case in Peters, the questions arising on the void and voidable acts of infants, and when they were to be deemed confirmed or disaffirmed, are fully and learnedly discussed in the opinion pronounced by the court.

b A conveyance by an infant of the same land to another person after he comes of age, effectually avoids a deed of bargain and sale made in infancy. Hoyle v. Stowe, 2 Dev. & Battle, 320. The New-York case of Bool v. Mix, 17 Wendell, 119, seems to require from the infant some positive act of disaffirmance after he comes of age of a sale of lands. If it be a feoffment with livery, it may be avoided by entry, or by writ dum fuit infra ætatem. If by deed of bargain and sale, it might be avoided by another deed of bargain and sale made to a third person without entry, if the land be vacant. And in all other cases if there be no conveyance to a third person, there must be an actual entry for the express purpose of disaffirming the deed, or he must do some other act of equal notoriety and efficiency.

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.b

(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 subject 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. Underhill, 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 fully 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. & Ellis, 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, sowie 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.

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safety of the public, of doing many binding acts. tracts for necessaries are binding upon an infant, and he may be sued and charged in execution on such a contract, provided 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. 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." 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. Coates v. Wilson, ibid. 152. Barolles v. Ramsey, 1 Holt's Rep. N. P. 77. Though the negotiable note which an infant gives for necessaries be void, yet he is liable for the reasonable value of the necessaries. M'Minn v. Richmonds, 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 v. Hills, 5 Adol. & Ellis, 606, where the cases were much discussed, adopted the rule laid down by Baron Parke in Peters v. Fleming, 6 M. & W. 46.

Ford v. Fothergill, Peake's N. P. 239. Story v. Perry, 4 Carr. & Payne, 526. Steedman v. Rose, 1 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 & 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 & Welsby, 727.

c Co. Litt. 172. a.

Wailing v. Toll, 9

d Bainbridge v. Pickering, 2 Black. Rep. 1325. Johns. Rep. 141. Hull v. Connolly, 3 M'Cord's L. R. 6. Kline v. L'Amoureux, 2 Paige's Rep. 419. But if the 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. & Sel. 738. Smith v. Young, 2 Dev. & Batt. 26.

also understood, "that necessaries for the infant's wife and children, are necessaries for him; and

all cases of contracts for necessaries, the real consideration may be inquired into. 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.c

Infancy is not permitted to protect fraudulent acts; and, therefore, if an infant takes an estate, and agrees 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. 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, Str. 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 Chapple v. Cooper, 13 Meeson & 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.

a Kirton 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 benefit under the contract.

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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 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. 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. But the fraudulent act, to charge him must

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Badger v. Phinney, 15 Mass. Rep. 359. Roberts v. Wiggin, 1 N. H. Rep. 73. Roof v. Stafford, 7 Cowen's Rep. 179. Parker, J., in Hamblett 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 Observer, 160. ▸ Conroe v. Birdsall, 1 Johns. Cas. 127. Rep. 184.

Burley v. Russell, 10 N. H.

Fitts v. Hall, 9 N. H. Rep.

• Badger v. Phinney, 15 Mass. Rep. 359. 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. Burley v. Russel, sup. S. P.

a 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.

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