It is of importance to know how the ordinary principles governing the contracts of infants are applied to the case where an interest in property, of a fixed and permanent nature, is vested in an infant by means of his contract. Are the duties attendant upon the occupation of fixed property separated therefrom when the occupier is within the privilege of minority? Where the interest devolves by direct operation of law (as upon marriage or by descent), it is clear that the duty is received along with it - transit terra cum onere.(m) This fundamental maxim thus undergoes no general relaxation in favor of infants; its operation is only affected, if at all, when that other maxim, that an infant's contract shall never be his burden, comes in conflict with it. The question arising here is undoubtedly one of no little difficulty; but it has been so determined as to reconcile * the two principles without impairing either of them. It is held that if one under age take a lease, and enter, and continue in possession after claim of the rent, he, like any other person (and by the same process as any other person), (n) may be compelled to pay the rent he has contracted to pay. (o) Yet he may, if he choose, disclaim at any time, and thereby exonerate himself; (p) or at least he may disclaim at any time before the rent day comes, and have relief from liability for the past occupation. (q) No necessity obliges him to put off his disclaimer until his majority; for it is common learning that an infant may void matters in fait, either within age or at full age, (r) but matters of record (for the reason that when such come in question, his nonage is to be ascertained by inspection of the court, and not by the country) must be avoided during his minority, and not afterwards. Yet when it is said he may avoid during minority, what is to be understood is rather a suspension than an avoidance, -an avoidance, as it were, only de bene esse. Upon arriving at full age he may disaffirm that disaffirmance, and revive the original contract. (s) In this case the debt incurred by his former occupation under the lease, and the recovery of which he had prevented by disavowing, also revives. Where an interest vests in the infant (as it appears it does in all cases where he accepts a lease or other conveyance of land, or an assignment of a share in permanent stock), no express ratification on coining of age is requisite. The interest, being vested, continues until divested by repudiation, * which may be by parol; and his acquiescence after majority will be taken, after a reasonable time, as a waiver of his right to disclaim, and an adoption at mature age of the act of his infancy.(t) It seems (though the point is still unsettled), that the fact that the rent reserved upon a lease made to an infant is greater than the land is worth, in no respect alters the case; although the contract is now manifestly an injurious one. (u)

(m) Leeds & Thirsk Railway Co. v. Fearnley, 4 Exch. 26.

(n) Per Parke, B., Newry & Ennis-killen Railway Co. v. Coombe, 3 Exch. 569.

(o) Newton, C. J., Bottiller v. Newport, 21 H. 6, 31 B., cited and approved by Parke, B., in Northwestern Railway Co. v. McMichael, 5 Exch. 126; Ketsey's case, Brownl. 120; s. c, under various names, Cro. J. 320, 2 Bulst. 69, Roll. Abr.

Enfants, K.; Blake v. Concannon, 4 Ir. Rep. C. L. 323; Kelly v. Coote, 5 Ir. C. L. 469. But see Flexner v. Dickerson, 72 Ala. 318.

(p) Northwestern Railway Co. v. McMichael, 5 Exch. 125.

(q) Ketsey's case, Cro. J. 320; 1 Platt on Leases, 528, 529; Lempriere v. Lange, 12 Ch. D. 675.

(r) Co. Lit. 380 b; Bac. Abr. Infancy and Age (I.), 7.

Even if shares in a railway corporation, or other public company holding land, are personal property, (v) the holders of such shares, since they acquire a vested interest of a permanent nature, till a position analogous in this respect to that of occupiers of real estate; and the infant purchaser of a share in such a corporation incurs a liability similar to that of an infant lessee. (w) Thus the simple plea of infancy is no defence to an action for calls. (x)

(s) Northwestern Railway Co. v. Mc-Michael, 5 Exch. 114, 127; with which compare Newry & Enniskillen Railway Co. v. Coombe, 3 Exch. 572, 575, 578. In the former case the law is thus summarily stated in the judgment of the court: "It seems to us to be the sounder principle, that as the estate vests as it certainly does, the burden upon it must continue to be obligatory until a waiver or disagreement by the infant takes place, which, if made after full age, avoids the estate altogether, and revests it in the party from whom the infant purchased; if made within age, suspends it only, because such disagreement may be again recalled when the infant attains his majority.'.'- See Bool v. Mix, 17 Wend. 119, 132, per Brownson, J.

(t) Bac. Abr. Infancy and Aqe (I.), 8; Com. Dig. Enfants (C), 6; Evelyn v. Chichester, 3 Burr. 1717; Lawson v. Love-joy, 8 Greenl. 405; Robbins v. Eaton, 10

N. If. 562; Holmes v. Blogg, 8 Taunt. 39, 40, per Dallas, J.

(n) Northwestern Railway Co. v. Mc-Michael, 5 Exch. 114.

(v) Bligh v. Brent, 2 V. & Col. 268; Bradley v. Holdsworth, 3 M. & W. 422, 424.

(w) In Newry & Enniskillen Railway Co. v. Coombe, 3 Exch. 577, where the point was discussed, Rolfe, 15., indeed, said: "I must say I doubt whether the doctrine as to a lease granted to an infant who enjoys the land demised would apply here, because this liability rests entirely in contract, and there is no possession of anything; all that the party gets is a right to a portion of the profits of the undertaking." But see Leeds & Think Railway Co. v. Fearnley, 4 Exch. 26, and especially the judgment of the court as given by Baron Parke in Northwestern Railway Co. v. McMichael, 5 Exch. 123.

(x) Birkenhead. Lancashire, & Che-shire Railway Co. v. Pilcher, 5 Exch. 121.

What limits are to be set to the analogy is undetermined. It cannot be said that the cases which have as yet been adjudicated are authority for extending it to other than stock based, like railroad stock, in some measure upon the possession of land.

There is no principle of law (though such has sometimes been supposed to exist), placing infants on the same footing as other persons whenever they enter into contracts which owe their validity, and the means of their enforcement, to statutes. In all statutes containing general words, there is an implied or virtual exception in favor of persons whose disability the common law recognizes. (y) Thus where a company is incorporated by statute, and by a general clause all shareholders are subjected to certain liabilities, and enjoined certain duties; here the same abatement of the rigor of the provision is to be made with regard to infants, lunatics, and femes covert, which the common law would make in applying a common-law rule. (z)1 The case of an infant whose interest in his land or stock is acquired by marriage or descent is (as we have seen) quite different; for his liability is cast upon him by direct operation of law. (a) So where a minor is held to service in the navy by force of a statute;(J) it is not the contract of enlistment which binds him, but the statutory duty. In all cases, " the only criterion is whether the liability is derived from contract,"(c) If it be derived from contract the common-law exceptions apply to it; otherwise, not.

(y) Stowell v. Roch, Plowd. 364.

(z) In the Cork & Bandon Railway Co. v. Cazenove, 10 Q. B 935, two of the judges, Lord Denman and Paiteson, J., expressed the opinion that since, by the statute, a shareholder was liable to the company for calls in his character of shareholder, the fact of infancy made no difference. The Court of Exchequer, which had previously refused assent to this doctrine (see Newry Railway Co. v. Coombe, 3 Exch. 565, and Leeds Railway Co. v. Fearnley, 4 Exch. 26, 32), thus observed upon it in the Northwestern Railway Co. v, McMichael, 5 Exch 124: " We cannot say that we concur in the opinion of the Court of Queen's Bench, as reported in 11 Jur 802, and 10 Q. B. 935, if it goes to the full extent that all shareholders, including infants, are by the operation of the Railway Acts made absolutely liable to pay calls. No doubt the statute not only gave a more easy remedy against the holder of shares by original contract with the company, for calls, and also attached the liability to pay calls to the shares, so as to bind all subsequent holders; but we consider, as we have before said, that there are implied exceptions in favor of infants and lunatics in statutes containing general words (Stowel v. Lord Zouch, Plowd. 364), though that depends, of course, on the intent of the legislature in each case (see Wilmot's Notes of Opinions and Judgments, p. 194, the Earl of Buckinghamshire v. Drury), and that this statute did not mean, by general words, to deprive infants of the protection which the law gave them against improvident bargains. Under this statute, therefore, our opinion is, that an infant is not absolutely bound, but is in the same situation as an infant acquiring real estate or any other permanent interest, he is not deprived of the right which the law gives every infant, of waiving and disagreeing to a purchase which he has made; and if he waives it, the estate acquired by the purchase is at an end, and with it his liability to pay calls, though the avoidance may not have taken place till the call was due."

(a) Parke, B., Newry & Enniskillen Railway Co. v. Coombe, 3 Exch. 574; Leeds & Thirsk Railway Co. v. Fearnley, 4 Exch. 26.

1 Bradford U.French, 110 Mass.365, was a decision that an infant mortgagee might make the " demand" necessary under a statute, providing that a mortgagee might demand of a creditor or an officer attaching mortgaged personalty the amount due, failure to pay which would dissolve the attachment. - K.

Respecting the manner of pleading the defence of infancy in cases where a liability is charged on account of the occupation of land, or the possession of stock, and of replying to that defence, the following conclusions may be drawn from recent decisions in England. First. Where a prima facie liability appears in consequence of such holding of land or stock, the * simple plea of infancy is not sufficient; the defendant must also aver that the interest on account of which he is charged came to him by contract and that he has disaffirmed that contract, (d) and if the disaffirmance be after he arrived at age he must aver that it was within a reasonable time after becoming of age. (e) Second. If upon the simple plea of infancy being put in, the plaintiff take issue thereon, and the defendant obtain a verdict, the plaintiff is entitled to judgment non obstante veredicto. (f) Third. Where infancy, the contract, and the disaffirmance are all pleaded, it is a good bar; and if the defendant has, upon coming of age, reaffirmed the contract, it is for the plaintiff to allege this fact in his replication. (g) Fourth. Supposing the law to be (which, however it seems it is not) that an infant occupying under a lease, wherein exorbitant rent is reserved, may defend against the recovery of such rent, without giving up possession, his plea, in addition to the other requisites, must distinctly show that at the time of pleading it he is still a minor. (h)