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in a twofold view in reference to vendors and purchasers :—First, in respect of the extent to which the acts of their agents make the principals liable to each other: — Secondly, in respect of the mutual rights and liabilities of agent and principal (c).
(c) Of Vendor and Agent, see Book II. Part 3. Chap. iii. Of Vendee and Agent, see Book II. Part 4. Chap, iii.
OF THE EFFECT OF DISABILITY OF THE PARTIES UPON
Disability If either the vendor or vendee, at the time of sale,
to contract. ,
be under a disability in law to contract, the contract will be either absolutely void, or voidable by the party affected by such disability. The different causes of disability may be classed under the following heads :—I. Infancy. II. Coverture. HI. Lunacy. IV. Attainder. V. Alien enemy.
Section I.—Infancy. Generally The general rule of law is, that any contract notTiabie entered into before the party attains the full age on contract. Q£ twenty-one is not binding (a). Full age is attained on the day preceding the anniversary of the birth-day ; thus, a person born on the first day of January, is of age to do any legal act on the morning of the last day of December, though he may not have lived twenty-one years by nearly forty-eight hours; the reason assigned is, that in law there is no fraction of a day(^). If goods, contracted
(a) 1 Bl. Coram. 463 ; Bull. N. P. 154; Co. Litt. 171. b. (6) 1 Bl. Comm. 463. (See note of Professor Christian.) Anon. 1 Salk. 44, per Holt, C. J.
to be sold, be delivered to a carrier a few days before the purchaser is of age, although they do not reach the purchaser until after he has attained twenty-one, there is no binding contract, for the property vests on the delivery to the carrier (c).
Although an infant is liable for torts in general(d), tbe plaintiff will not be permitted to bar the defendant of his plea of infancy, by converting into a tort the subject matter of an action which clearly arises out of a contract (e). An infant bailee is not liable for negligence (/), nor an infant vendor for a breach of warranty in the sale (g), or exchange (hj, of a chattel.
An exception to the rule of non-liability is made Exceptions. in the case of necessaries (i) supplied to an infant vendee. And in almost all cases a ratification of the contract upon attaining full age will make it valid and effectual (J); because, in general, the
(c) Griffin v. Langfield, 3 Campb. 255.—Post.
(rf) Bristow v. Eastman, 1 Esp. 172.
(e) See 8 T. R. 337; Grove v. Nevill, 1 Keb. 778.
(f) Jennings v. Rundall, 8 T. R. 335.
(g) Howlett v. Haswell, 4 Campb. 118.
(A) Green v. Greenbank, % Marsh. 485. Nor can an infant be sued in an action for deceit in falsely stating that he was of full age.—Johnson v. Pie, Siderf. 258.
(i) In Brook v. Galley, 2 Atk. 34, Lord Hardwicke, Ch. said, "The law lays infants under a disability of contracting debts except for bare necessaries, and even this exemption is merely to prevent them from perishing." But see Zouch v. Parsons, 3 Burr. 1801, Judgment of Lord Mansfield, C. J. (J) Southerton v. Whitelocke, 1 Str. 690.
The contract not void but voidable.
What are necessaries.
acts of an infant are not void but voidable only(A): for if an infant sell goods and deliver them, action of trespass will not lie against the vendee (I): so if he bail goods to his own use, trespass will not lie against the bailee (m).
Qn the principle, that the contract in general is not void but voidable by the infant himself, and by him only, since the privilege is personal (n), it follows, that the infancy of the vendee is no defence, in favour of the vendor, in an action brought against the latter for the non-performance of the contract. The infant may enforce the contract at his option, though he himself is not bound thereby(o).
The question of the liability of an infant on his contracts may be considered under the following heads:—
What are held to be necessaries.
1. What are held to be necessaries. An infant may bind himself to pay for his necessary meat,
(k) Co. Litt. 2 b.
(/) Per Hyde J. 1 Mod. 137.
(m) 1 Rol. Abr. 730,1. 20 ; Com. Dig. Enfant, C. 3.
(n) Taylor v. Croker, 4 Esp. 187; Jones v. Darch, 4 Price, 300 ; Smith v. Bowen, 1 Mod. 25 ; see 1 Show. 171.
(o) Bruce v. Warwick (in error), 6 Taunt. 118; S. C. 2 M. & S. 205; Fitzmaurice v. Waugh, 3 D. & R. 273; Keane v. Boycott, 2 H. Bl. 511 ; Holt v. Ward, 2 Str. 937; see Bac. Abr. Infancy, I. 4.
drink, apparel, physic, and likewise for his good teaching and instruction (p). The question of necessaries is a relative fact, to be governed by the fortune or circumstances of the infant, and proof of these circumstances lies on the plaintiff(y). They ought to correspond with the real circumstances, and not the mere appearance in life, of the infant (r). The question is usually one of fact for the Jury, but their verdict is subject to the control of the court in point of law (*). It has been held that unless the question is exclusively one of law, if any of the articles furnished to the defendant fall within the description of necessaries, the evidence ought to be left to the Jury (t). The defendant, being a Captain in the army, was held to be liable for livery furnished for his servant;—Lord Kenyon, C. J. observed, that he could not say it was not necessary for a gentleman in defendant's situation to have a servant, and if it were proper, it was equally necessary that the servant should have a livery (u). So an infant is liable for the cost of a suit of regimentals for a
(p) Co. Litt. 172, a. Corn. Dig. Enfant, B. 5; Bac. Abr. Infancy, I. 1.; Vin. Abr. Enfant, C.; Hvggins v. Wiseman, Carth. 110 ; Pickering v. Gunning, Palm. 528 ; Jones, 182; March, 40.
(?) Per Lord Kenyon, C. J., 1 Esp. 211 ; Rose. Ev. p. 245.
(r) Ford v. Fothergill, 1 Esp. 211 ; S. C. Peake, 229.
(s) 2 Stark. Ev. 406 ; Makarell v. Bachelor, Cro. Eliz. 583.
(0 Maddox v. Miller, 1 M. & S. 738 ; Bliss v. Palmer, Peake, 803, n. (3rd ed.).
(u) Hands v. Slaney, 8 f. R. 578.