Page images

promise was "to pay when he is able," the

plaintiff must prove ability to pay, at the time

that the action is brought (c).

The promise must now be in writing and signed. Promise r ; . mast be»'

By Lord Tenterden's Act (a), it is provided that writing.

"No action shall be maintained, whereby to "charge 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." (e)

Where the contract made by the infant is only Disaffirmvoidable, and the infant on coming of age, instead IciadTin of confirming, rescinds it, the whole must be taken to be rescinded; therefore, where the plaintiff, when a minor, had given a sum of money in order to be admitted into a trading partnership with the defendant, which contract he subsequently rescinded, it was held that he might recover back the money in an action for money had and received (/). This decision went on the

ment of the plaintiff's right of action, as will preclude the defence of infancy to the residue; because the money paid into Court might be for necessaries. Hitchcock v. Tyson, 2 Esp. 481, n.

(c) Cole v. Saxby, 3 Esp. 159.

(d) 9 Geo. IV. c. 14.

(e) Td. s. 5. (/) Corpe v. Overton, 10 Bingh. 252; S. C. 3 M. & Sc. 738;

see Adlington v. Gervas, Hob. 77. There have been dicta to the

[ocr errors]

ground that no consideration whatever had been received by the infant; for it had been decided, that if a partial consideration for the money had been received, it could not have been recovered back (g); and this doctrine was recognised by the Court. (A) where the Where the contract made by the infant is not

contract 15'

absolutely merely voidable but absolutely void, no subsequent ratification can revive it; as a contract by an infant, for the purchase of an annuity (i). So an infant-obligor cannot ratify, after coming of age, a bond conditioned for the payment of principal and interest (A), nor a bond with a penalty (/). But by a subsequent promise to pay a promissory note made during infancy (in), or by accepting, when of full age, a bill of exchange drawn during infancy («), the party will become liable.

contrary; Wilmot's Notes, 226, n; 2 Eden, 72, per Lord Mansfield, C. J.; 8 Taunt. 510, per Gibbs, C. J.

(g) Holmes v. Blogg, 8 Taunt. 508; S. C. 1 B. Moore 466; 2 B. Moore, 552; see Drury v. Drury, 2 Eden, 39; Buckinghamshire v. Drury; 2 Eden, 60; S. C. Brown, P. C, 492.

(h) See the judgment of Tindal, C. J., Corpe v. Overton, 10 Bingh. 255—6.

(i) Under the stat. 17 Geo. III. c. 26, s. 6., and 53 Geo. Ill, c. 141,s. 8.

(&) Fisher v. Mowbray, 8 East, 330.

(I) Baylis v. Dinely, 3 M. & S. 477 ; S. C. 2 Chit. Rep. 153.

(m) Hunt v. Massey, 3 Nev. & M. 109.

(») Stevens v. Jackson,4 Campb. 164.

[ocr errors]

Section II.—Coverture, (a) A married woman is under as great a disability Mar,,"i in law, as an infant, to enter into contracts (b); not con

7' \ y 7 tr»

therefore, the general rule is, that the coverture of the vendee at the time of the contract is a bar to an action brought by the vendor, whether against the husband and wife singly, or both jointly (c). And the defendant is not estopped from pleading coverture, though she may have represented herself as a feme sole (d). But as the husband is bound in law to provide his wife and family with necessaries, he will be liable for the debts which his wife may contract in the purchase of necessaries (e), unless he has given particular notice to the contrary (/).

(a) The following section relates to the subject of coverture, only as a plea in bar to the action, whatever parties may be made plaintiffs or defendants, and not as a plea in abatement for misjoinder.

(6) See Smith v. Plomer, 15 East, 607.

(c) Com. Dig. Baron Sf Feme, Q; Bac. Abr. Baron fy Feme, H.; Gilb. Ev. 83. [But the queen consort may sue and be sued as a feme sole; Co. Litt. 133, a. In equity, if a woman having a separate estate promises to pay a debt out of it, the estate will be liable; Bell v. Hyde, Prec. Chan. 328; or even if the promise be to pay generally; Murray v. Barlee, 4 Sim. 82.]

(d) Davenport v. Nelson, 4 Campb. 26; Cowley v. Robertson, 3 Campb. 438; M'Namara v. Fisher, 3 Esp. 18; Smith v. Wilkins, 6C. & P. 180.

(e) 1 BI. Comm. 442. (/) Bull. N. P. 135.

The liability of the husband in respect of the contracts of his wife varies, according to whether the parties are living together or separate, and in the latter case, whether the separation is the act of one party only, or is mutual. The four following heads seem to comprise all the different classes of cases :—

1. Where husband and wife cohabit.

2. Where they do not cohabit, and the act of separation is on the part of the husband.

3. Where they do not cohabit, and the act of separation is on the part of the wife.

4. Where they do not cohabit, and the act of separation is mutual, or by operation of law.

1. Where husband and wife cohabit. where par- Where the parties live together, the husband

ties live together, will be liable for necessaries purchased by the wife,

wife has ,..*.«

implied au- because his assent, authorizing the wne to act as contract for his agent, may prima facie be implied from the very circumstance of cohabitation^). And on the principle that the wife is the presumed agent of her husband, her admission will be considered his act, and is evidence to bind him (h); therefor) Etherington v. Parrott, 1 Salk. 118; Lang fort v. Tiler, 1 Salk. 113; see 1 Sid. 128; Skinn. 349; 1 Brownl. 47. [Even where the husband is an infant; Turner v. Trisby, 1 Str. 168.]

(A) Anderson v. Saunderson, 2 Stark. N. P. C. 204; Clifford v. Burton, 1 Bingh. 199; Emmerson v. Blonden, 1 Esp. 142; Palethorp v. Furnish, 2 Esp. 511, n; Gregory v. Parker, 1 Campb. 394; Williams v. Johnson, 1 Str. 504; Anon. 1 Str. 527.

fore the husband would be liable for necessary physic for the wife(«), for lodging (A), clothing, &c. (/); for dresses, which, though costly are not above the station of the defendant (m): for food (n), education and other necessaries for his children (0); but not for a debt which his wife has contracted under illegal circumstances (p). The question, what are and what are not necessaries, must depend on the rank, situation, and circumstances of the husband {q), and is a question for the consideration of the jury (r). It ought rather to depend on his estate than his degree; for one of high degree may be of low estate (*); yet, however low a man's circumstances may be,

(i) Harris v. Lee, 1 P. Wms. 482.

(k) Beaumont v, Weldon, I Ventr. 255.

(I) Dyer v. East, 1 Ventr. 42; 1 Mod. 9.

(m) Morton v. Withens, Skinn. 348.

(n) Ross v. Noel, Bull. N. P. 136.

(o) Garbrand v. Allen, Comb. 450; Calverley v. Plummer, 2 Lev. 16. [A father is liable for the maintenance of his illegitimate child if he adopts it as his own, though no order of affiliation have been made upon him (Heskelh v. Groning, 5 Esp. 131; see Sham v. Whiteman, Peake 42 (3rd Ed.)); but not for children of his wife by a former husband (Tubb v. Harrison, 4 T. R. 118; Cooper v. Martin, 4 East, 76); unless he adopts them as part of his family (Stone v. Carr, 3 Esp. 1.) ]

(p) Fowles v. Dinely, 2 Str. 1122 ; Anon. 2 Show, 283.

(5) Per Lord Mansfield, C. J., Ozard v. Durnford, Selw. N. P. 279.

(r) Bac. Abr. Baron and Feme, H. Per Best, C. J., Hunt v. Blaquiere, 3 M. and Payne, 122.

(s) Per Hale, C. B., Bac. Abr. supra.

« PreviousContinue »