(e) Ex parte Jones, In re Jones, 18 Ch. Div. 109; 50 L. J. (Ch.) 673; R. v. Wilson, 5 Q. B. D. 28; 49 L. J. (M. C.) 13; Belton v. Hodges, 9 Bing. (23 E. C. L. R.) 365. Where, however, there has been an express representation by an infant carrying on a trade, that he was of full age, the person to whom such representation has been made and who has been deceived by it into giving the infant credit, may prove for the loss which he has sustained under an adjudication of bankruptcy made against the trader after he has attained full age. Ex parte Unity Banking Association, 3 De G. & J. 63; 27 L. J. (Bkptcy.) 33; Ex parte Jones, In re Jones, supra.
Now, therefore, the general rule being that an infant cannot bind himself except for necessaries, next comes the question-Suppose he do, in fact, enter into a contract for something not falling under that denomination, what will be the consequence ? The answer to this is, now, that no action can be maintained against him during his infancy upon any such contract, nor afterwards, not even although by fraudulently representing himself to be of age he induced the plaintiff to contract with him (f). But formerly there was this to be added, that the contract was not absolutely void, but voidable; and therefore, when he arrived at the age of twenty-one, he might confirm it, and, if he did so, he would become liable to an action upon it (g)1
[I will exemplify this by the case of Goode v. Har(f) Bartlett v. Wells, 31 L. J. (Q. B.) 57; De Roo v. Foster, 12 C. B. N. S. (104 E. C. L. R.) 272.
(g) Goode v. Harrison, 5 B. & Ald. (7 E. C. L. E.) 147; Ex parte Unity Banking Ass., supra.
1 A defendant is not estopped from setting up infancy as a defence to an ac tion on a contract, by his fraudulent representation that he was of full age Merriam v. Cunningham, 11 Cush. 40. But see Prouty v. Edgar, 6 Iowa, 353 Kemp v. Cook, 18 Md. 130.
As to contracts of infants being only voidable and not void, see Strain v Wright, 7 Ga. 568; Slocum v. Hooker, 13 Barb. 536; Levering v. Heighe, 2 Md. Ch.81; West v. Penny, 16 Ala. 186; Ridgeley v. Crandall, 4 Md. 435 Cummings v. Powell, 8 Tex. 80; Ferguson v. Bell, 17 Mo. 347. The deed of an infant is voidable-not void. It is good, therefore, until disaffirmance Van Nostrand v. Wright, Hill & Den. 260; Voorhies v. Voorhies, 24 Barb. 150; Pitcher v. Laycock,7 Ind. 398; Peterson v. Laik, 24 Mo. 541; Babcock v. Doe, 8 Ind. 110; Palmer v. Miller, 25 Barb. 399; Wellborn v. Rogers, 24 Ga. 558; Stuart v. Baker, 17 Tex. 417; Griffith v. Schwenderman, 27 Mo. 412; Mustard v. Wohlford, 15 Gratt. 329; Johnson v. Rockwell, 12 Ind. 76; Magee v. Welsh, 18 Cal. 155; Blankenship v. Stout, 25 111. 132; Jenkins v. Jenkins, 12 Iowa, 195; State v. Plaisted, 43 N. H. 413. An infant's voidable deed may be ratified not only by express affirmance, but by omission to disaffirm within a reasonable time: Hastings v. Dollarhide, 24 Cal. 195. Also by any deliberate act by which he takes benefit under it, or recognizes its validity after he comes of age: McCormic v. Leggett, 8 Jones, 425.-s.
Rison (i).1 A person of the name of Goode entered into a trading partnership with an infant under the age of twenty-one, named Bennion; a third person, named Harrison, supplied them with goods, and after Bennion came of age, he took no step to signify to the world that he disclaimed the connection with Goode, but, on the contrary, allowed it to be supposed that he was still ill partnership with him. After this, Harrison supplied Goode with more articles, and brought an action against him for the price, jointly with Bennion, as a co-defendant. Bennion set up his infancy, and urged that, as an infant cannot bind himself by a contract made in the course of trade, his agreement, while under age, to become Goode's partner, was not binding upon him, and consequently, that not being Goode's partner, he was not liable for the articles supplied to him. On the other hand, it was urged that, admitting the partnership contracted while he was an infant to be voidable, it was nevertheless in his option, when he arrived at his full age of one-and-twenty, to adopt and confirm it; that by his conduct he had done so; and that consequently he was liable for the goods supplied afterwards. The question was argued, as you may suppose, with great ability, the counsel being Mr. Baron Parke and the late Mr. Justice Littledale. The Court decided in favour of the plaintiff. The principle is clearly and strictly laid down in the judgment of Mr. Justice Bay-ley :"It is clear," says his Lordship, "that an infant may be in partnership. It is true that he is not liable for contracts entered into during his infancy; but still he may be a partner. If he is in point of fact a partner during his infancy, he may, when he comes of age, elect whether he will continue that partnership or not If he continue the partnership, he will then be liable as a partner.1 If he dissolve the partnership, and if when of age he take the proper means to let the world know that the partnership is dissolved, then he will cease to be a partner."
(i) 5 B. & Ald. (7 E. C. L. R.) 147; Unity Banking Ass. v. King, supra.
1 The portion of the text included within brackets is from the sixth English edition of the work. Though now obsolete in England (infra *325) it has been deemed proper to insert it, together with the valuable notes of Mr. Rawle and Judge Sharswood, as still applicable in this country.
It is easy to apply this mode of reasoning to any other sort of contract (ii). Thus, if he makes a lease of his land, which is binding if for his benefit, but not otherwise, and after majority accepts rent, and by other acts affirms the contract, this is strong evidence that the lease is beneficial and binding (iii); or if an infant lessee remains in possession of the house or land demised, and pays rent after majority, he cannot repudiate it afterwards, but it is confirmed from the beginning (iv). This head of law has been much and elaborately considered in several recent cases, in which the liability of an infant holder of railway shares to pay the calls upon them has been in dispute. The arguments and judgments in these cases (which are cited demand a very careful perusal, and will amply repay it in the very full view which they give of the prin-ciple now under discussion, and the application of it. Assuming, according to the opinion of the Court of Exchequer, that the question of the infant's liability does not depend conjointly upon the Act creating the com-pany, and upon the Companies Clauses Consolidation Act, 8 & 9 Vict., c. 16, but upon the Common Law, it has been repeatedly decided, that, where an infant becomes the holder of shares by his own contract and subscription, he is prima facie liable to pay the calls (v); he may repudiate that contract and subscription, and if he does so while an infant, although he may on arriving at full age affirm his repudiation, or receive the profits, it is for those who insist upon his liability to make out these facts (vi). Infants having become shareholders in railway companies, have been held liable to pay calls. "They are purchasers," said the Court of Exchequer in the London and North Western Railway Company v. M'Michael, "who have acquired an interest not in a mere chattel, but in a subject of a permanent nature, either by contract with the Company, or by devolution from those who have so contracted, and with an obligation attached to it which they are bound to discharge, and have been thereby placed in a situation analogous to an infant purchaser of real estate, who has taken possession, and thereby become liable to all the obligations attached to the estate; for instance, to pay rent in case of a lease rendering rent, or to pay a fine due on an admission in the case of copyhold, to which an infant has been admitted (vii), unless they have elected to waive or disagree to the purchase altogether, either during infancy or after full age, at either of which times it is equally competent for an infant so to do." Thus, where there has been no waiver or repudiation, the infant continues liable to pay the calls; and where the infant avoids the contract for purchase during minority, he is not liable. If, after full age, the party repudiates a contract made during his infancy, it may be gathered from what has been said, and indeed hardly requires stating, that he must do so within a reasonable time after he comes of age (viii). However, in order to prevent persons from inconsiderately confirming contracts made by them during infancy, and to obviate the danger of attempts to foist such confirmation on them by false evidence, it is enacted, as we have already seen (ix), by 9 Geo. IV., c. 14, s. 5, that 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.1]