press. age (t). If the plaintiff proves a promise, and the defendant pleads infancy, the proof of such defence rests on the defendant, as it is a fact peculiarly within his knowledge (u); but it has always been held, that to charge a person on a must be ex- contract entered into during infancy, on the ground that the contract has been ratified on attaining majority, an express promise must be proved by the plaintiff; mere acknowledgement, whether implied or expressed, is insufficient (x). The subsequent promise must be made voluntarily, not under fear of an arrest and in ignorance that infancy is a discharge of liablity (y); and it must be made before action brought (z); and by the infant himself, not by his executor after his death (a). When there has been a promise to pay part of the debt, it will only bind the infant as far as the promise extends, and no further (b). If the (t) Southerton v. Whitelocke, 1 Stra. 690; Cooper v. Martin, 4 East, 83; Ball v. Hesketh, Comb. 381; Wood v. Witherick, Noy, 87. (u) Borthwick v. Carruthers, 1 T. R. 648; Rosc. Ev. 247, (x) Thrupp v. Fielder, 2 Esp. 628 ; Lara v. Bird, Peake's Ev. 297; Hyling v. Hastings, 1 Ld. Raym, 389, per Holt, C. J. (y) Harmer v. Killing, 5 Esp. 102. (z) Thornton v. Illingworth, 2 B. & C. 824; Cohen v. Armstrong, 1 M. & S. 724; though a promise is sufficient after action brought to take a case out of the Statute of Limitations, Yea v. Fouraker, 2 Burr. 1099. (a) Stone v. Wythipoll, Cro. Eliz. 126. (b) Green v. Parker, Peake's Ev. 297. Payment of money into Court, as to part of the demand, is not such an acknowledge promise was "to pay when he is able," the plaintiff must prove ability to pay, at the time that the action is brought (c). must be in The promise must now be in writing and signed. Promise By Lord Tenterden's Act (d), it is provided that writing. "No action shall be maintained, whereby to 66 '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) 66 ance re scinds Where the contract made by the infant is only Disaffirmvoidable, and the infant on coming of age, instead in of confirming, rescinds it, the whole must be toto. taken to be rescinded; therefore, where the plaintiff, when a minor, had given a sum of money in order to be admitted into a trading partnership with the defendant, which contract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 (ƒ). This decision went on the ment of the plaintiff's right of action, as will preclude the defence (d) 9 Geo. IV. c. 14. (e) Id. s. 5. (f) Corpe v. Overton, 10 Bingh. 252; S. C. 3 M. & Sc. 738; see Adlington v. Gervas, Hob. 77. There have been dicta to the Where the contract is void. 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. (h) Where the contract made by the infant is not 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 (k), nor a bond with a penalty (1). But by a subsequent promise to pay a promissory note made during infancy (m), or by accepting, when of full age, a bill of exchange drawn during infancy (n), 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. III., c. 141, s. 8. (k) Fisher v. Mowbray, 8 East, 330. (1) Baylis v. Dinely, 3 M. & S. 477; S. C. 2 Chit. Rep. 153. (m) Hunt v. Massey, 3 Nev. & M. 109. (n) Stevens v. Jackson, 4 Campb. 164. SECTION II.-COVERTURE. (a) woman cannot con tract. A married woman is under as great a disability Married in law, as an infant, to enter into contracts (b); 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 (ƒ). (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. (b) See Smith v. Plomer, 15 East, 607. (c) Com. Dig. Baron & Feme, Q; Bac. Abr. Baron & 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; Conley v. Robertson, 3 Campb. 438; M'Namara v. Fisher, 3 Esp. 18; Smith v. Wilkins, 6 C. & P. 180. (e) 1 Bl. Comm. 442. (f) Bull. N. P. 135. Where parties live to gether, wife has 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 the parties live together, the husband will be liable for necessaries purchased by the wife, implied au- because his assent, authorizing the wife to act as thority to contract for his agent, may prima facie be implied from the very circumstance of cohabitation (g). 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); there necessaries. (g) Etherington v. Parrott, 1 Salk. 118; Langfort 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.] (h) 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. |