§ I. Political or Professional Status,

An alien has all power of contracting which a natural-bom An alien.

British subject has, except that he cannot acquire property

in a British ship.

An alien enemy, or British subject adhering to the king's An alien

enemies \ cannot, without license from the Crown, make any ^^^^y^

fresh contract or enforce any existing contract during the cMeaiy v.

continuance of hostilities ; but his rights as to outstanding ' ^"^p- ^*

contracts made before the commencement of war are sus-

pended, not annulled, and can be enforced upon the con-

clusion of peace.

Foreign States and soyereigns and their representatives. Foreign

and the officials and household of their representatives, are ^d^^«r^

not subject to the jurisdiction of the Courts of this country representa-

unless they submit themselves to it. A contract entered Tayiorr. Best,

into with such persons cannot therefore be enforced against

them nnless they so choose, although they are capable of

enforcing it«

A person convicted of treason or felony cannot, during the Felon un-

continuance of his conviction, make a valid contract ; nor senfencf.

can he enforce contitkcts made previous to conviction; but 33^34 vict.

*■ ' c. 33.88.8,9. la

these may be enforced by an administrator appointed for the

purpose by the Crown*

^ It does not seem to be clearly settled that anything short of resi-

dence in a hostile coantiy for trading purposes constitutes adherence to

the king's enemies. The case of ItSberU v. Hardyt 5 M. & S. 533,

exhibits the reluctance of the Courts to draw condnsions from the mere

fact that a man was resident in a hostile country when it was possible

&r him to have romoved.

98

POBMATTON OP CONTEACT.

Part II.

Barrister. A barrister cannot sue for fees due to him for services

rendered in the ordinary course of his professional duties,

Kennedy ▼. whether the action be framed as arising upon an implied

N.s.d77. contract to pay for services rendered on request, or upon

an express contract to pay a certain sum for the conduct of

a particular business.

Physician. A physician, until the year 1858, was so far in the position

of a barrister that the rendering of service on request raised

no impUed promise to pay for them, though the patient

might bind himself by express contract: but now, by 21 &

22 Yict. c. 90, every physician may sue on ench an implied

contract, subject to the right of the College of Physicians to

regulate this right by law.

31 & aa Vict,

c. ga s. 31.

§ 2. Infants,

The rules of law relating to the rights and liabilities of

infants upon contracts entered into by them during infancy

have been considerably modified by recent legislation. It

will therefore be well to state the rules of Common Law

upon the subject, and then to consider the modifications in

historical ord^.

General The general rule of Common Law is, that an infant's con-

mon^Law? ^^ ^ voidable at his option, either before or after he has

Infant's attained his maiority. And this rule is thus affected :—

contract •» v

voidable. (i) The contract ceases to be voidable if it be ratified

upon the attainment of 21 years of age.

(2) The contract cannot be avoided if it be for neces-

saries.

We will deal with these two exceptions in order.

(i) Ratification.

(i) Ratifica- Mr. Pollock, in an exhaustive and convincing argument,

has shown clearly that the better opinion has ever been that

the contract of an infant is not void but voidable at his

option. Being so voidable, the infant may (apart from

tion.

Pollock on

Contracts,

pp. 36, 41.

Chap. III. § 2. INFANTS. 99

statntory restrictions) ratify his contract when he attains his

majority, and assume the rights and liabilities arising from

it. *The general doctrine is,' said the Court in TTttttaww "M.&W.256.

V. Moor, ' that a party may, after he attains the age of 2 1

years, ratify and so make himself liable on contracts entered

into during infancy/ It may be well to remind the reader

tbat such a ratification is, or was, an illustration of the

limited class of cases in which a past consideration has been

Allowed to sni^ort a subsequent promise.

But it would seem that ratification is of two kinds. And Ratification

it may perhaps be said that, before the Infant's Belief Act, kinds?

the ratification required to make the infant liable upon con- |f J^^svict.

tracts entered into by him during infancy differed, in corre- "

Bpondence with a certain difference in kind in the contracts

to which he became a party. Some of these are valid unless Contracts

rescinded, others invalid until ratified. It would seem that J^f^d^l

where an infant acquires an interest in permanent property

to which obligations attach, or enters into a contract which

inYolves continuous rights and duties, benefits and liabili-

ties, and has taken benefits under the contract, he would

he bound unless he expressly disclaimed the contract. On

the other hand, a promise to perform some isolated act, or

a contract wholly executory, would not be binding upon the

iQ&nt unless he expressly ratified it upon coming of age.

Illustrations of contracts which required a special dis-

claimer to avoid them — ^which were valid unless rescinded —

may be found in the following cases. Interests in

An infant lessee who occupies until majority is liable for Roue,Abr.73z.

arrears of rent which accrued during his minority. Share*

holders who became possessed of their shares during infancy

are liable for calls which accrued while they were infants.

'They have been treated therefore as persons in a different incorporate

situation from mere contractors, for then they would have P^^P^^^'

been exempt: but in truth, they are purchasers who have

acquired an interest, not in a mere chattel, hut in a eubjeet

H a

lOO FORMATION OF CONTRACT. Part 11.

of a permanent natv/re, either by contract with the company,

or purchase or devolution from those who have contracted,

and with certain obligations attached to it which they were

bound to discharge, and have thereby been placed in a situ*

ation analogous to an infant purchaser of real estate who has

taken possession, and thereby becomes liable to all the obli-

gations attached to the estate ; for instance, to pay rent in

the case of a lease rendering rent, and to pay a fine due on

3 Burr. 1717. thc admissiou in the case of a copyhold to which an infant has

been admitted, unless they have elected to waive or disagree

to the purcTiase altogether, either during infancy or at full

N. w. R. Co. ▼. ag^e, at either of which times it is competent for an infant

McMichaeU "

5 Ex. 114. to do so.'

in partner- Similarly an infant may become a partner, and at Com-

^ ^^* mon Law may be entitled to benefits, though not liable

for debts, arising from the partnership during his infancy.

Equity however would not allow an infant, in taking the

partnership accounts, to claim to be credited with profits

Lindiey. i. 81. aud uot debited with losses. But what is important for

our present purpose to note is, that unless there be an ex-

press rescission and disclaimer of the partnership which was

entered into after infancy, the partner will be liable for

losses accruing after he came of age.

Where an infant held himself out as in partnership with

X, and continued to act as a partner till shortly before he

came of age, and then, though ceasing to act as a partner,

did nothing to disafiirm the partnership, he was held liable

Goodev.iur- QU dcbts which accrued, after he came of age, to persons

Aid. 159. ^}jQ supplied X with goods.

' Here,* said Best, J., * the infant, by holding himself out

as a partner, contracted a cofUtrmal obligation, and that

obligation remains till he thinks proper to put an end to it.

... If he wished to be understood as no longer continuing

a partner, he otight to have notified it to the world.*

Although the liabilities incurred by the infant are some-

A^yx

Chap. III. § 2. INFANTS. lOI

what different in these different cases, yet there is this feature

common to all of them, that nothing short of express dis-

claimer will entitle a man, on attaining his majority, to be

free of obligations such as we have described. It is otherwise Contracts

in contracts which are not thus continuous in their operation, ratified.

The infant i» not bound unless he expressly ratify them.

Such being the rules* of Common Law upon the subject, let

us consider how they have been affected by legislation.

Lord Tenterden's Act requires that ratification, upon the Lord Ten-

attainment of majority, of contracts entered into during in- ©^ Ratifica-

&ncy should be in the form prescribed by the Act, enacting, t^o"-

* That no action shall be nmintained whereby to charge 9 Geo. iv. c.

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/

The Infant's Relief Act of 1874 went mlich further in the infant's

attempt to protect infants from the consequences of their ^^^'^^ '^^^•

attempts to bind themselves by contract. It appears to

have been designed to guard not merely against the results

of youthful inexperience, but against the consequences of

honourable scruples as to the disclaimer of contracts upon

the attainment of majority.

*i. All contracts whether by specialty or by simple con- 37*38 vict

tract henceforth entered into by infants for the repayment

of money lent or to be lent, or for goods supplied or to be sup-

plied (other than contracts for necessaries), and all accounts

stated with infants, shall be absolutely void : provided al-

ways 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.

* 2. 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

102 FORMATION OF CONTRACT. Part II.

infancy, whether there shall or shall not be any new con-

sideration for such promise or ratification after full age.'

Effect of The effect of this enactment is —

ReUef Act. W "^^ make certain sorts of contract absolutely void if

entered into with infiants.

(j3) To prevent any contract with an infant from becoming

actionable as against him, by subsequent ratification.

And the second section must be taken to override the effect

of 9 Geo. IV. c. 14. s. 5.

Of sect. I. It has been pointed out before now that the first section

of this somewhat off-hand piece of legislation is not very

clear. If a contract for goods supplied or to be supplied

is voidi the consequence would be that no property in the

goods would pass, at any rate under the contract.

If an infant pays for goods which have not been delivered,

he can probably^ recover his money back, and so he could

have done previous to the Act by avoiding the contract.

But if the infant receives the goods and pays the price,

can the tradesman recover the goods, and the infant his

money, on the ground that the contract was void? We

must take it that delivery of the goods with intention

to pass the property would pass it ; and that money paid

for the goods (although, the contract being void, the pay-

ment is necessarily made without consideration) could not

be recovered back because paid with full knowledge of facts.

Hence it may be said that the transaction would stand, though

it must be regarded as a gratuitous delivery of goods on the

one side, and a voluntary payment of money on the other.

^ It is difficult to suppose that no remedy would be available to the

infant under such circumstances, but it is hard to see how any remedy

is available ex contract. If a contract had ever been in existence

the infant could avoid it while still executory, and recover back money

which he had paid under it ; or he might recover the money as paia

on a consideration which had wholly &iled. But, since the Act, the

contract is void; it never bad an existence; and it would seem as

though money paid under it was paid voluntarily, and could only be

recovered if paid upon fraudulent representation, or possibly by an

application of the equitable machinery of trusts.

Chap. III. $ a. INPANTS. IO3

The second section requires also to be considered with Of sect. 2.

reference to the class of contracts which have been described

as ' valid unless rescinded.' It can hardly be supposed that

such an implied ratification as continuance in a partnership,

or retention of shares, would be affected by the provisions

of the section ; but the question must be regarded as open

until it receives a judicial interpretation.

That the section is strong against ratification, such as makes

the infant liable, appears from the decision in Kibble's case. l. r. 10.

Cn. 373*

There an infant drew a bill of exchange in fftvour of one

of his creditors, and was sued upon it after he had attained

his majority. He allowed judgment to go by default, and

thus created a debt in the form which we have described

as a Contract of Record, as solemn a form of ratification as

well could be. The biU had been drawn before the Infimt's

Relief Act came into operation, the judgment was obtained

after. The case came before the Court of Appeal in Bank-

mptcy, the question being whether the judgment debt so

created was one upon which a man could be made a bank-

rupt. The Court held, ist, that sitting in Bankruptcy it

could look behind the judgment And enquire into the con-

sideration for the debt; and, 2ndly, that the consideration

being a contract entered into during infancy, and the judg-

ment being in effect a ratification of the contract, the Infant's f £.^^'^^

Belief Act prevented such ratification, although it had been

entered into before the Act was passed. * The effect of the

2nd section,' said Hellish. L. J„ ' was to prevent any action

being brought on the bill, although it might have been rati-

fied after the in&nt came of age. For I am of opinion that

that section applies to all contracts made by any infants,

provided the ratification is made after the passing of the

Act, and that it is to be understood as saying that a debt

contracted in infancy shall not in future in any case form a

valid consideration upon which an action can be brought.'

It must be borne in mind that the section does not

;i04 FORMATION OP CONTRACT. Part II.

The infant prevent an infant from enforcing a contract (other than those

Ihe^con^'^^ i'^^^^^®^ under sec. i); the contract is not void but void-

^^^^ able at his option. His ratification does not give anj right

to the party who has contracted with him, but his power of

benefiting by the contract, if he choose, is not taken away.

Equity however will not grant specific performance of a

contract in which only one side is bound.

(2) Necessa- (2) We must now consider the liability of an infant for

ries — what

are they, neccssanes.

And we must first ascertain what are ' necessaries.'

It has always been held that an infant may bind himself

by contract for the supply to him not merely of the

necessaries of lifoi but of such things as are suitable to his

station in life and to his particular circumstances at the

time. The best discussion of the subject of necessaries is

i^ R. 3 Exch. to be found in the judgment of Bramwell, R, in Ryder v.

Wonibwell, — a judgment the conclusions of which were

I- R, 4 Exch. adopted by the Exchequer Chamber. The difficulty which

has arisen in respect of them consists mainly in determining

the provinces of the Court and the Jury in ascertaining them,

and the rules applicable to the matter may perhaps be stated

thus : —

(a) Evidence being given of the things supplied and the

circumstances of the infant, the Court determines whether

the things supplied can reasonably be considered necessaries

at all ; and if it comes to the conclusion that they were not,

the case may not be submitted to the jury at all.

Things may obviously be incapable of being necessaries.

A wild animal, or a steam roller, could hardly, under any

circumstances, be considered to be such.

Things may be of a useful character, but the quality or

quantity supplied may take them out of the character of

necessaries. Elementary text-books might be a necessary

to a student of law, but not a rare edition of ^Littleton's

Tenures,' or eight or ten copies of * Stephen's Commentaries.'

Chap. HI. § 2. INFANTS. I05

Things necessary to a person in one station of life would .

not be necessary to a person in a different station ; or, again,

things not usually necessary may become so from the circum-

stances of the infant.

Medical attendance and expensive articles of food may

ordinarily be dispensed with, but may become necessary in

case of ill-health.

It does not follow therefore that, because a thing is of a

useful class, a judge is bound to allow a jury to say whether

or no it is a necessary under all the circumstances of the

case.

(b) If the judge conclude that the question is an open Provinces

one, and that the things supplied are such as may reason- ^Jj,^ :

ably be considered to be necessaries, he leaves it to the jury

to say whether, under the circumstances of the case, the

things supplied were necessaries as a fact. And the jury

determines this point, taking into consideration the character

of the things supplied, the extent to which the infant was

already supplied with them, and the actual circumstances of

the infant. We say ' actual circumstances,' because a false

impression which the infant may have conveyed to the

tradesman as to his station and circumstances will not affect

his liability. If a tradesman supplies expensive goods to an Brayshaw v.

infant because he thinks that the infant's circumstances are ^ p* '^'

better than in fact they are, he does so at his peril.

(c) The ruling of the Court and the finding of the jury of Court in

are both alike subject to review by a Divisional Court sitting ^fAp^l

in banc and by successive Courts of Appeal.

An in&nt is liable for wrong, but a breach of contract Infant may

may not be treated as a wrong so as to make the infant chared

liable : the wrong must be more than a misfeasance in the ^P^^ ^^^' ^

tract framed

performance of the contract, and must be separate from and as a tort,

independent of it. Thus where an infant hired a mare to t*undaS! ^'

ft T R 90C

ride and injured her by over-riding, it was held that he could

Io6 rOBMATION OP CONTBACT. Part II.

not be made liable upon the contract by framing the action

in tort for negligence. Nor can an infant be made liable

for goods sold and delivered by charging him in trover and

conversion, a rule which it is not unimportant to bear in

mind, inasmuch as the InfEmt's Belief Act makes a sale of

goods to an infant absolutely void, and so would appear to

prevent any property from passing to him.

but may for But when an infant hired a horse expressly for riding and

though ' ^^^ ^^^ jumping, and then lent it to a friend who jumped

originating ^he horse and killed it, he was held liable : for ' what was

m contract.

done by the defendant was not an abuse of the contract, but

Burnard v. was the dolug of an act which he was expressly forbidden

x4c:b.n.s.4s. by the owner to do with the animal.'