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If an infant accepts a bill of exchange, or makes a promissory note during his infancy, and signs, after he has attained his majority, a written order or anthority to his banker or agent, directing him to pay the amount of such bill or note, this is such a ratification of the contract as will render him liable to be sued upon the bill or note.(ƒ)

Signature of the ratification or promise.-The statute, it will be seen, requires the writing to be signed by the party himself, and does not, like the statute of frauds, provide for a signature by an agent (ante, 70). A letter, therefore, written by a wife in her husband's name, acknowledging the existence of a debt contracted by him during his infancy, and promising to pay the amount, will not bind the husband, although he may have expressly authorized her to write the letter and sign his name to it (g)

Effect of the RATIFICATION.-The ratification, when made in writing according to the statute, relates back and gives effect to the original claim, and fixes the defendant with an obligation springing out of the old contract. (h) If a promise in writing to pay the debt be made and signed by the party after he comes of age, this may, it seems, be treated either as a ratification and confirmation of the old contract, or as a new contract based upon and supported by the original consideration. (i) If an infant has borrowed money during his infancy, and after he has attained his majority, signs with his own hand a written promise to pay the amount, he will be liable upon such promise. (k) It has been said, that if the infant has given a bond to secure the repayment of the money, he cannot be sued upon any subsequent promise to pay the amount, as the specialty operates as an extinguishment of the simple contract debt (1) But we have already seen that such a bond would be void, and that any action brought thereon may be defeated by pleading the infancy of the obligee; it can hardly, therefore, (being in itself an invalid and nugatory instrument,) do away with the effect of a written promise made by the infant after he comes of age to pay the sum borrowed. (m) If the promise to pay the debt be a conditional promise, such as a promise by the party to pay as soon as he is able," the condition must be accomplished, and the

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(f) Hunt v. Massey, 5 B. & Ad. 902; 3 N. & M. 109, s. c.

(g) Hyde v. Johnson, 3 Sc. 296; 2 Bing. N. C. 776.

(h) Gibbs v. Merrill, 3 Taunt. 307. Hunt v. Massey, 5 B. & Ad. 902; 3 N. & M. 109, s. c. Hartley v. Wharton, 11 Ad. & E. 934; 3 P. & D. 529, s. c. Williams v. Moor, 11 M. & W. 263, 264

(i) Cohen v. Armstrong, 1 M. & S. 724.

Southerton v. Whitlock, 2 Str. 690. Hawkes v.
Saunders, 1 Cowp. 289. Borthwick v. Carru-
thers, 1 T. R. 648. Heyling v. Hastings, 1
Lord Raym. 389. Bayley, J., Thornton v.
Illingworth, 4 D. & R. 547.

(k) Ball v. Hesketh, Comb. 381.

(1) Tapper v. Davenant, 3 Keb. 798; Bull. N. P. 153, s. c.

(m) Edmond's ease, 3 Leon. 164; 4 Leon. 5.

ability of the party to pay must be established before any action can be maintained upon the promise. (n) If the declaration in an action upon such a promise sets forth an absolute promise to pay the debt, and a conditional promise only is proved, the action must necessarily fail. (o)

The promise to pay the debt must, in all cases, be made before action brought; for a replication to a plea of infancy that the promise to pay was made by the defendant after he came of age is not sustained by proof of a promise to pay after action commenced. (p) The promise must also, in all cases, be obtained without misrepresentation or fraudulent concealment. If a plaintiff has furnished a defendant during his infancy with things which were not necessaries, and has obtained a promise from the latter, after he came of age, to pay for them, and has at the same time purposely kept back his account and not given the defendant any opportunity of knowing the amount of the claim until after the promise to pay has been obtained, this will be strong evidence of fraud on the part of the plaintiff, disentitling him to rely on the promise; (q) and if the promise has been obtained by threats or by duress it is of course void. (r)

Ratification of an ACCOUNT STATED.-If an infant having had dealings with an adult, meets and settles accounts with him during his infancy, in the ordinary way, and a balance is struck, and on attaining his age of twenty-one years he confirms the settlement, and signs a written promise or agreement to pay such baiance, he will be liable for the amount thereof. "The principle on which the law allows a party who has attained his age of twenty-one years to give validity to contracts entered into during his infancy is, that he is supposed to have acquired the power of deciding for himself, whether the transaction in question is one of a meritorious character, by which in good conscience he ought to be bound; and there seems nothing in the liability on an account stated to take that out of this general principle. It was indeed argued for the defendant, that on an account stated an infant derives no benefit, that he does not, as on a purchase of goods, get any thing valuable, and he has no quid pro quo. But this is a fallacy; an infant stating an account gets precisely the same benefits as an adult gets on similar transactions. He makes certain the previously uncertain state of the transactions between himself and the person with whom he is stating accounts, and he

(n) Gould v. Shirley, 2 M. & P. 581. Scales v. Jacob, 4 M. & P. n.; 3 Bing. 644; 11 Moore, 570, s. c. Tanner v. Smart, 6 B. & C. 609.

(o) Haydon v. Williams, 4 M. & P. 818; 7 Bing. 163, s. c.

(p) Thornton v. Illingworth, 4 D. & R. 545;

2 B. & C. 824, s. c.

(q) Brooke v. Galley, 2 Atk. 34.

(r) Harmer v. Killing, 5 Esp. 101.

gets rid of the necessity of preserving vouchers. This, in the case of an adult, is a sufficient consideration to create a debt, and we can discover no reason why it should not have the same effect in the case of an infant, supposing him to adopt and ratify it after he comes of age."(s)

Of the LIABILITY of ADULTS contracting with INFANTS.

It has already been stated to be a principle of the common law in the case of contracts founded on mutual promises, and a mutuality of obligation, that although an infant who has entered into such a contract with a person of full age, may take advantage of his minority and resist the fulfilment of his engagement, that right cannot be urged by the other party to show that as there was no mutual obligation there was no consideration for his promise, as in the case of mutual promises of marriage, contracts of hiring and service, and contracts of apprenticeship, where it is no answer to an action brought by the infant against the adult party to the contract, to say that as the infant is protected by his infancy from liability, there is no mutuality of contract or reciprocity of obligation, for "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 that therefore, though the contract of the infant be voidable, that yet it shall bind the person of full age; 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."()

Therefore, where an infant brought an action by her guardian, and set forth that she gave the defendant 107., and promised to serve him for seven years, and that the defendant promised to find her with necessaries during the term, and to teach her to sing and to dance, but would not fulfil his promise, and the defendant alleged that there was no consideration for hist undertaking, the agreement not being reciprocal, and the infant not being bound thereby; the court held that though the contract might be void as to the infant, yet it bound her mistress, who was of full age.(u) So, where a man of full age, and a female of sixteen exchanged mutual promises of marriage, and the infant brought an action against the man for a breach

(s) Williams v. Moor, 11 M. & W. 264, 265. Parke, B.

(1) Bac. Abr. Infants. (T.) 4.

(u) Farneham v. Atkins, 1 Sid. 446; 2 Keb. 623, s. c.

of contract, it was held that the minority of the plaintiff, and her exemption from liability upon the contract, was not productive of a corresponding exemption from liability on the part of the defendant. (x) So, in the case of contracts of purchase and sale, and contracts for the performance of work, and all other contracts, the adult contracting party is bound and may be sued by the infant, although the latter has incurred no corresponding legal obligation. (y) (As to the liability of joint contractors where one of them is an infant, see post. ch. 27, p. 877.)

SECTION II.

LIABILITIES ex contractu of DRUNKARDS and persons of UNSOUND

MIND.

Contracts with DRUNKARDS.- "A party who makes a contract in such a state of drunkenness as not to know what he is doing cannot be compelled to perform that contract by the other party who knew him to be in that state. A man who takes an obligation from another so circumstanced is guilty of actual fraud."(a) "It is evident," observes Pothier, (Obligations, No. 49,)" that drunkenness, when it goes so far as absolutely to destroy the reason, renders a person, so long as it continues, incapable of contracting, since it renders him incapable of consent." Therefore, where an action was brought upon a bill of exchange by the indorsee against the indorser, and the defendant pleaded that at the time he indorsed the bill he was so drunk as to be unable to comprehend the meaning or effect of the indorsement, or to contract thereby, of which the plaintiff at the time of the indorsement had notice; it was held that the

(x) Holt v. Ward, 2 Str. 937; 1 Barn. 290. (y) Warwick v. Bruce, 2 M. & S. 205; 6 Taunt. 118, s. c. Forrester's case, Sid. 41. Keb. 1, s. c. Davis v. Mannington, 2 Sid. 109.

(a) Parke, B., Gore v. Gibson, 14 Law J.,

N. S., (Exch.,) 152; 13 M. & W. 626, s. c.
Cole v. Robins, Ball, N. P. 172, a. Pitt v.
Smith, 3 Campb. 33. Fenton v. Holloway, I
Stark. 126.

plea was a good answer to the action. (b) And it should seem that if a bill of exchange or a promissory note be indorsed or accepted or made by a person in a complete state of intoxication, it cannot be enforced, as against the drunkard, by a bona fide holder who received and gave value for it on the credit of the acceptance or indorsement or signature, in ignorance of the drunkenness and of the fraudulent circumstances under which the instrument was obtained. (c) If a man, however, is able to write his name without any aid or assistance, it may well be doubted if he can be so completely intoxicated as not to have some knowledge of what he is doing, and if a bill so accepted or indorsed gets into the hands of a bonâ fide holder, he would be liable upon the instrument if a jury should be of opinion that he was only partially intoxicated at the time he accepted or indorsed it; for if a party enters into a contract in a partial state of intoxication only, he cannot escape from liability thereon, unless he can show that advantage was designedly taken of him by the other contracting party when he was not in a fit state of mind to take care of his own interests, or that some positive fraud was practised upon him by the person seeking to enforce the contract.

The law, although it throws its shield around the drunkard to protect him from fraud, will never permit him to make use of his own drunkenness, folly, or misconduct as a means of cheating and defrauding other people. If, therefore, a man has bought goods when he was so drunk as not to know what he was doing, and keeps the goods after he is sober, he will not be permitted to set up his drunkenness at the time of the purchase as an answer to an action for the purchase-money. (d)

Contracts with LUNATICS and persons of UNSOUND MIND.-If a party to a contract was at the time he entered into the engagement, a lunatic or a person of unsound mind, and any imposition appears to have been practised upon him, or any advantage taken of his infirmity by the other contracting parties, the contract will be void as having been procured by fraud; but if the contract is a fair and honest contract, and bears no symptoms of the infirmity of the mind of the party sought to be charged thereon, the courts will enforce it like any other contract. A lunatic or person of unsound mind cannot in general, however, enter into any contract under seal, and will not be bound by any deed entered into by him, (e) unless it be shown that the contract was entered into during a lucid interval; and if it be a necessary and beneficial contract for him to

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