which an infant is not liable, a party shall not be allowed, by treating the breach of that contract as a tort, and suing in form ex delicto, to charge the infant. "If one deliver goods to an infant on a contract, knowing him to be an infant, he shall not be charged for them in trover and conversion; for the law will not permit a plaintiff, by changing the form of action, to vary the liability of the infant (n)." So where a minor having hired a horse injured it in the course of the journey, it was held that he was not liable in an action on the case for the wrong (9). And he is not liable for a false and deceitful warranty of goods, or of his title thereto, upon a sale by him (p).

In an action for goods sold to an infant, the issue being necessaries, if any article proved to have been furnished to the defendant may fall within the description of necessaries, the evidence ought to be left to the jury (q).

3rdly. Of an Infant's Confirmation of his Contract on coming of Age. The general rule appears to be, that an infant's contract, if for his benefit, though not for necessaries, is voidable only, not void, and may consequently be confirmed without any new consideration (r). And if a person, on attaining the age of twenty one years, ratify a voidable contract made by him during nonage, it will bind him, although there may be no other consideration than the moral obligation to pay (s). To render an adult's confirmation of the contracts of his infancy binding, it must, however, be in writing, and signed by him (t), (and the signature of his agent will not suffice (u),) and be made before action brought (v); so it must be voluntary on his part; not obtained by circumvention (x); extorted by the terror of an arrest; or made under a manifest ignorance on his part, that he was entitled to claim the privilege and protection

afforded him by law (y). A bare acknowledgment or recognition of the existence of a prior debt, is also insufficient to render the party liable. He must, by an express promise, confirm the demand, and waive his right to be discharged; and a part payment, even into court, will not amount to a confirmation of the remainder of the demand (≈).

Where an infant fraudulently concealed his age, and obtained from his trustees part of certain stock, which he was entitled to when of age, and upon his attaining his full age a few months afterwards, he applied for and obtained the residue, it was held in equity that the infant was guilty of a fraud; and that neither he, nor his assignees, could recover back the amount paid during nonage; and that his application for "the residue" was a binding recognition of the former payment (a).

And in the case of a continuing contract, voidable only by an infant on his coming of age, the infant is bound by and is presumed to ratify the contract, if he do not, within a reasonable time after he has attained his full age, give notice of disaffirmance of, or otherwise reject, such contract; unless the other party dispense with such disaffirmance (b). As if an infant during his nonage, and until a short period before he arrives at twenty-one, hold himself out as being the partner of J. S., he is liable on contracts entered into by the firm after he attained twenty-one years of age, unless at that time he denied or disaffirmed the partnership, although he did no act as a partner after that age (c). So if an infant make a lease rendering rent, it is, at all events, only voidable; and if he accept rent at full age, without dissent, he cannot afterwards avoid the demise (d).

And if a person continue in possession, without objection, after his full age, of premises leased to him during his infancy, he affirms the lease; and is liable, it has been laid down, even for arrears of rent which accrued pending the infancy (e). On a

(y) Harmer v. Killing, 5 Esp. 102. But, in general, ignorance of the law is no defence or excuse. See Stevens v. Lynch, 12 East, 68.

(z) Dilk v. Keighley, 2 Esp. 481; Thrupp v. Fielder, 2 Esp. 628.

(a) Cory v. Gerteken, 2 Madd. 40. (b) Holmes v. Blogg, 8 Taunt. 35; 1 Moore, 466, S. C.

(c) Goode v. Harrison, 5 B. & Ald. 147; Holmes v. Blogg, 8 Taunt. 35; 1 Moore, 466, S. C.

(d) Ashfield v. Ashfield, Sir W. Jones, R. 157; 4 Leon. 4, per Mead, J.; Baylis v. Dineley, 3 M. & Selw. 481, per Lord Ellenborough, C. J.

(e) 1 Rol. Ab. Enfants, (K) 731, (E), 45; Ketsey's case, Cro. Jac. 320; Kirton v. Elliott, 2 Bul. 69; 1 Rol. Ab. 721, pl. 45, S. C.; Evelyn v. Chichester, 3 Burr. 1719; Baylis v. Dineley, 3 M. & Selw. 481; Holmes v. Blogg, 8 Taunt. 35, 37; 1 Moore, 466, S. C.

motion in equity to review the taxation of a bill of costs, commenced during minority, the Master having disallowed all the charges incurred during that period; the Chancellor granted the motion, on the ground that a continued employment when of age, might, under circumstances, amount to an implied undertaking to pay the prior part of the bill (ƒ). And it seems that the partial accession to a feme infant's marriage settlement, on her attaining full age, confirms it and binds in toto (g). But where it is clear upon the face of the instrument, that it is to the prejudice of the infant, as in the case of a bond with a penalty, securing the payment of money with interest, he cannot by parol confirm the bond so as to be liable thereon (h).

As it rests entirely with the debtor whether he will ratify voidable contracts made during his infancy, so he may confirm them conditionally; and in such case the creditor must show that the condition is performed. As where an adult promises to pay “when he is able," some proof of his ability, to be inferred from his ostensible appearance and circumstances, must be given (i). And in such case it might be proper to declare, not only on the original demand, which is revived by the subsequent promise, but also to insert a count on the conditional promise to pay (k), subject, however, to an application to strike out one of the counts. However, in all cases, the confirmation must be before action brought (1).

An infant's right to elect whether he will avoid or confirm a contract entered into by him during his infancy, does not necessarily entitle him to recover back money which he has paid thereon. It is indeed a general rule, that an infant cannot recover back money paid by him even upon a contract, which, by reason of his infancy, he is not bound to complete; there being no imposition as a premium paid by him on a lease to him of premises which he actually occupied, although he avoided the lease on attaining twenty-one years of age (m). But it seems he

(f) Guy v. Burgess, 1 Smith, R. 117; but see post, 155.

(g) Milner v. Lord Harewood, 18 Ves. 277.

(h) Baylis v. Dineley, 3 M.& S.447. (i) Cole v. Saxby, 3 Esp. 160; Besford v. Saunders, 2 H. Bl. 116; Davies v. Smith, 4 Esp. 36; Leaper v. Tatton, 16 East, 423. So in the case of such a promise to pay a debt

barred by the statute of limitations;
Tanner v. Smart, 6 B. & C. 603;
Haydon v. Williams, 7 Bing. 163;
Gould v. Shirley, 2 M. & P. 581.

(k) Id.; Hunt v. Massey, 5 B. & Ad.902.

(1) Thornton v. Illingworth, 2 B. & C. 824; 4 D. & R. 545, S. C.

(m) Holmes v. Blogg, 8 Taunt. 508; 2 Moore, 552, S. C.; ante, 150.

may recover back a deposit paid by him on an agreement, which he refused to perform, and which is wholly unexecuted (n).

When the plaintiff relies on a subsequent promise, which the defendant denies, it is sufficient for the plaintiff to prove a promise before action brought (o); and it is incumbent on the defendant to show that he, at the time of making it, was under age (p).

The 9 Geo. 4, c. 14, s. 5, enacts, that no action shall be maintained whereby to charge any person upon any promise (q) 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. And the signature of an agent will not suffice (r). But we have seen that such new promise need not be stamped (s).

Where a letter is dated on a day after the infant attained his majority, it is presumed to have been written on that day (t).

4thly. Of the Liability of Persons contracting with Infants. -It is laid down as a general rule, that infancy is a personal privilege, of which no one can take advantage but the infant himself; and therefore, although the contract of the infant be voidable, that it shall bind the other party: for being an indulgence which the law allows infants, to protect and secure them from the fraud and imposition of others, it can only be intended for their benefit, and is not to be extended to persons of the years of discretion, who are presumed to act with sufficient caution and security. And were it otherwise, this privilege, instead of being an advantage to the infant, might in many cases turn greatly to his detriment (u).

Therefore an infant may sue an adult for a breach of promise of marriage, although the latter could not sue the former on such a promise (v). And although an infant is not liable on any mercantile contract, as he is not allowed to trade, still he may maintain an action thereon (w). And where a minor by himself

and his guardian agreed to let the defendant a farm, which he refused to hold when the minor came of age, upon the ground that the latter was under age at the time of the contract, it was decreed in equity that the defendant should take a lease, and should pay all costs (x).

So it is no defence to an action on a bill against an adult, that a prior party thereto is an infant (y).

And where the defendant and an infant jointly and severally granted an annuity, and jointly and severally covenanted for the payment of the same, it was held that the defendant could not. avail himself of the infancy of his co-grantor, and the 53 G. 3, c. 141, s. 8, in order to exonerate himself from his covenant (z.)

Where one of two joint contracting parties is an infant, the action may and should be against the adult only. If both be sued, and the infant plead his nonage, the plaintiff cannot enter a nolle prosequi as to him, and continue the action against the other defendant; but must discontinue the action, and sue the other party separately (a). If in assumpsit the defendant plead in abatement, "that he made the promise jointly with another person," and that person be an infant, the plaintiff may reply the infancy. The form of the replication should be the infancy; not "that the defendant alone promised" (b).

(x) Clayton v. Ashdown, 9 Vin. Ab. 393, pl. 4.

(y) Taylor v. Croker, 4 Esp. R. 187; Drayton v. Dale, 2 B. & C. 299, per Bayley, J.; ante, 122.

(z) Gillow v. Lillie, 1 Bing. N. C. 695; 1 Scott, 597; 1 Hodges, 160,

S. C.

(a) Chandler v. Parkes, 3 Esp. 76; Jaffray v. Frebain, 5 Esp. 47; Burgess v. Merrill, 4 Taunt. 468. See some sensible observations upon this, 2 Pothier, by Evans, 63, 4, note.

(b) Gibbs v. Merrill, 3 Taunt, 307.