An infant may bind himself for necessaries; but it may be doubted on some authorities whether this exception would go so far as to make good and enforceable his promissory note for the price.(g) The authorities are not in agreement on this subject; but on principle we should say that a distinction should be taker between a negotiable bill or note and one not negotiable. For merly a simple bond given by an infant for necessaries, that is, a bond for the payment of a sum of money, without penalty and without interest, might be valid, but not one which provided either for a penalty or for interest.(h) Now, no bond would probably be held obligatory.(i) If a note were given, even for necessaries, it has been repeatedly held, that while the infant was responsible on a quantum valebant for the value of the necessaries, his note for the amount was not binding, because this determined that amount positively, and it was necessary for the infant's effectual protection that this should be open to inquiry.(j)

that it is capable of ratification. Until ratified, however, it has no validity. The rule is very accurately stated by Gilchrist, C. J, in Edgerly v. Shaw, 5 Fost. 514. "The executory contracts of an infant are said to be voidable, but this word is used in a sense entirely different from that in which it is applied to the executed contracts of an infant. In the latter case, the contract is binding until it is avoided by some act indicating that the party refuses longer to be bound by it. In the former case, it is meant merely that the contract is capable of being confirmed or avoided, though it is invalid until it has been ratified." See also the excellent criticism upon the words "void" and "voidable,” by Bell, J., in State v. Richmond, 6 Fost. 232.

(7) The only case in England directly upon this point is Williamson v. Watts, 1 Camp. 552, at Nisi Prius. That was assumpsit on a bill of exchange against the acceptor. The defendant pleaded infancy. The plaintiff replied that the bill was accepted for necessaries, and issue thereon. Upon the case being opened, Sir James Mansfield said: "This action certainly cannot be maintained. The defendant is allowed to be an infant; and did any one ever hear of an infant being liable as acceptor of a bill of exchange? The replication is nonsense, and ought to have been demurred to." So also it is settled in England, that an action will not lie against an infant upon account stated, though the particulars of the account were for necessaries. Trueman v. Hurst, 1 T. R. 40; Bartlett v. Emery, 1 T. R. 42, n. (a); Williams v. Moor, 11 M. & W. 256. And the reasons would seem to hold equally in the case of a promissory note or bill of exchange. In New York, too, it has been decided that a negotiable note given by an infant for necessaries is not binding. Swasey v. Vanderheyden, 10 Johns. 33. And in New Hampshire, McCrillis v. How, 3 N. H. 348; Conn v. Coburn, 7 N. H. 368. And in Tennessee, McMinn v. Richmonds, 6 Yerg. 9. And, it seems, in New Jersey, Fenton v. White, 1 South. 100. And in Indiana, Henderson v. Fox, 5 Ind. 489. As to Kentucky, see Beeler v. Young, 1 Bibb, 519.

(h) The old cases upon this point are collected by Sergeant Manning, in a note to Harrison v. Fane, 1 Man. & G. 550.

(i) See Beeler v. Young, 1 Bibb, 519; McMinn v. Richmonds, 6 Yerg..

(j) See cases supra, note g. The reasoning upon which these cases proceed is

If, however, the action were on a simple promissory note, not ne gotiable, or even on a negotiable note which had not been negotiated, an inquiry into the consideration might be made, which would seem to open the whole question; and the reason for denying the validity of such a note, while admitting a liability for the value of the necessaries, might seem technical rather than substantial. Not so, however, if the note were negotiable and negotiated; for now it might pass for value into the hands of innocent third parties, and either its character would protect it from all inquiry into consideration, which might injure the infant, or for his protection this inquiry might be made, and then the document would lose the chief peculiarity and characteristic of negotiable paper.()

well stated in Mitchell v. Reynolds, 10 Mod. 85. It was there said, arguendo, "that an infant could not, either by a parol contract or a deed, bind himself even for necessaries in a sum certain; for should an infant promise to give an unreasonable price for necessaries, that would not bind him; and therefore it may be said that the contract of an infant for necessaries, quatenus a contract, does not bind him any more than his bond would, but only, since an infant must live as well as a man, the law gives a reasonable price to those who furnish him with necessaries."

(k) It was expressly decided in Swasey v. Vanderheyden, 10 Johns. 33, that an action would not lie on a negotiable promissory note given by an infant for necessaries, after it had been negotiated. And the court said: “A negotiable note given by an infant, even for necessaries, is void. This we consider to be the law, and it is the opinion of respectable writers. (Chitty on Bills, 20, 1 Camp. 553, note.) The reason given is, that, if the note be valid in the first instance as a negotiable note, the consideration cannot be inquired into when it is in the hands of a bona fide holder, and the infant would thereby be precluded from questioning the consideration. For the same reasons it has been held (1 T. R. 40), that an infant cannot state an account, as that would preclude him from investigating the items. It has also been held (1 Camp. 552), that he cannot accept a bill of exchange for necessaries." It has been decided, however, in several cases, that an action will lie on a note given by an infant for necessaries, while it remains in the hands of the original payee, though it be negotiable in form. Thus, in Earle v. Reed, 10 Met. 387, it was held, that a negotiable note given by an infant was not void in the hands of the promisee; and in a suit thereon by the promisee, he may show that it was given, in whole or in part, for necessaries, and may recover thereon as much as the necessaries for which it was given were reasonably worth, and no more. That was an action of assumpsit on a promissory note, signed by the defendant in the presence of an attesting witness, and payable to the plaintiff or order. It appeared that the defendant was an infant when he gave the note, and that it was given for necessaries. The action was not brought till after the lapse of more than six years from the time when the cause of action accrued; and the question was, whether the note was sufficient to take the demand out of the operation of the statute of limitations, under the provision (R. S c. 120, s. 4) that the statute of limitations shall not apply "to any action brought upon a promissory note, which is signed in the presence of an attesting witness, provided the action be brought by the original payee, or by his executor or administrator." And the court, after much consideration,

An Infant is liable for his torts in the same manner as an adult; but it seems that he is not bound by a bill or note given in satisfaction for a tort.(1)

It is now quite certain that an infant payee or indorsee can, by his indorsement, transfer a property in the note to a third party as against all parties prior to the infant. For though the note is voidable as against the infant, it is binding upon the other parties; and the indorsement of the infant is good until he avoids it. (m) And it seems that such indorsement may be made by the

held, that it was. Shaw, C. J. said: "The distinction between the contract which subsists between promisor and promisee, on a note payable to order, but not indorsed, and that which would subsist between the promisor and an indorsee after an indorsement to a third person, is recognized and illustrated in the case of Thurston v. Blanchard, 22 Pick. 18. The difference is most important, as it applies to the present case. In the former, suppose it a note given on the sale of goods, it is a mere simple express contract to pay the price of the goods, and is itself rescinded by anything that rescinds the sale. In the latter, it is an absolute contract to pay the sum stipulated, in which in general there can be no inquiry respecting the consideration. Under these views we consider this note, in the hands of the promisee, as the simple contract of the defendant for the payment of money; and there being no consideration expressed, the infancy of the promisor being shown is prima facie a bar to the action. But as the consideration is open to inquiry, we think it is competent for the plaintiff to show that it was given for the price of necessaries, in which he will recover only so much of the note as shall appear to have been given for necessaries at their fair value, without regard to the price stipulated to be paid by the minor. This being a note valid as between the parties, we think it is saved from the operation of the statute of limitations, by the proviso that it shall not apply to any action brought upon a promissory note which is signed in the presence of an attesting witness, if brought by the original payee." In Bradley v. Pratt, 23 Vt. 378, an action was brought against the defendant as the maker of a promissory note, payable to the plaintiff or order. It appeared that, the defendant being indebted to one L. B. for necessaries, and L. B. being indebted to the plaintiff, the defendant, at the request of L. B., gave the note in question to the plaintiff. It was held, that the plaintiff was entitled to recover. Redfield, J. said: “If it were not for maintaining the unimpeachable character of negotiable paper in regard to consideration, so that all might safely take it, I do not see why the rights of infants, in regard to acceptances and notes negotiated, might not be saved by allowing them, as an exception to the general rule, to show their infancy, and then for the plaintiff to meet it by proving the contract to have been given for necessaries. But this has not been done, and probably could not be done, without too great an infringement of the rules of law in regard to negotiable paper while current." It seems that the same rule prevails in South Carolina. See Dubose v. Wheddon, 4 McCord, 221; Haine v. Tarrant, 2 Hill, S. C. 400. But see contra, Bouchell v. Clary, 3 Brev. 194.

(1) Hanks v. Deal, 3 McCord, 257.

(m) Taylor v. Croker, 4 Esp. 187; Grey v. Cooper, 3 Doug. 65; Jones v. Darch, 4 Price, 300. And see Drayton v. Dale, 2 B. & C. 293; Jeune v. Ward, 2 Stark. 326, 1 B. & Ald. 653. This question was well considered in Nightingale v. Withington, 15 Mass. 272, where Parker, C. J., delivering the opinion of the court, said: "That an infant may indorse a negotiable promissory note, or a bill of exchange, made payable

agent or attorney of the infant, or at least, that such an indorse ment is susceptible of ratification by the infant after he becomes of age.(n)

Acceptance by an infant, or indorsement, is voidable as against himself, in the same way that the making of a note or drawing of a bill would be. But if a bill drawn upon an infant were accepted by him after he had become adult, this acceptance would be valid.(0) It has been held, that if an action be brought against an infant for goods sold for trade, and a ratification proved, made by him when adult, but after the action was commenced, this is not enough; the Court distinguishing it from a ratification or new promise made after suit, which was permitted to remove the bar of the statute of limitations, and one of them saying expressly that the contract for goods sold for trade was not voidable, but void, and therefore could not be ratified, although it might be the ground

to him, so as to transfer the property to an indorsee for a valuable consideration, seems to be well settled in the law merchant, and is noways repugnant to the principles of the common law. Such indorsement is not like one made by a feme covert; for a note payable to her becomes the property of her husband; and further, her acts are absolutely void, whereas those of an infant are voidable only. It would be absurd to allow one, who has made a promise to pay to one who is an infant or his order, to refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise; and it would impair the value of such contracts in the hands of infants, if they were unable to raise money upon them, as others may do. Whether an infant may avoid an indorsement so made, and oblige the promisor to pay to him, is a question not arising in this case; for there has been no countermand or revocation of the order to pay, which is implied in his indorsement. If an action should be brought against the infant as indorser for the default of payment by the promisor, without doubt he may avoid such action by a plea of infancy. But that is a personal privilege, which none but himself can set up in avoidance of any contract made in his favor." Hardy v. Waters, 38 Maine, 450, is to the same effect. And see Burke v. Allen, 9 Fost 106. () In Whitney v. Dutch, 14 Mass. 457, where one of two partners in trade was an infant and the other of full age, and the adult, for a debt of the copartners, made a promissory note in the name of the firm, and the infant, after coming of full age, ratified it, it was held good against him. Upon the authority of this case it was held, in Hardy v. Waters, 38 Maine, 450, that an infant promisee of a negotiable note might indorse the same by an agent or attorney, and that an indorsement so made is valid until avoided by the infant or his representatives. But Whitney v. Dutch would seem to be an authority only for holding that such an indorsement may be made good by ratification after the infant becomes of age; not that it is good until avoided. And we are not certain that it is an authority for so much as this, for the making of a note, as in Whitney v. Dutch, is an executory contract; but an indorsement, so far as it operates as a transfer, is a contract executed. See Semple v. Morrison, 7 T. B. Mon. 298.

(0) Stevens v. Jackson, 4 Camp. 164.

of a valid new promise.(p) But if the decision is to be regarded as going this length, it cannot, it seems, be law. For then a bill or note executed by an infant could never be so ratified as to support an action. But it is settled by repeated decisions, not only that this may be done, but that the bill or note when ratified may be negotiated, and possesses in all respects the same qualities as if executed by an adult.(q)

(p) Thornton v. Illingworth, 2 B. & C. 824. Bayley, J. said: "In the case of an infant, a contract made for goods, for the purposes of trade, is absolutely void, not voidable only. The law considers it against good policy that he should be allowed to bind himself by such contracts. If he makes a promise after he comes of age, that binds him on the ground of his taking upon himself a new liability, upon a moral consideration existing before; it does not make it a legal debt from the time of making the bargain." Holroyd, J.: "There was no legal right capable of being enforced in a court of law at the time when the action was commenced. Where the statute of limitations has run, a new promise revives the debt ab initio, and that is equally the case whether the promise is made before or after the commencement of the action. Here no ground of action, capable of being enforced in a court of law, existed at the time when the action was brought; there was no foundation upon which the action could rest. The new promise was the sole ground of action, and not the revival of an old one." Littledale, J.: "When the statute of limitations is relied upon, an acknowledgment admits the perpetual existence of the debt, and therefore it suffices whether it is made before or after the bringing of the action. But the contract of an infant, under such circumstances as the present, being void, and not voidable, the promise in this case did not prove that any legal cause of action existed at the time when the action was commenced." So far as regards the point decided, this case has generally been followed in this country. Merriam v. Wilkins, 6 N. H. 432 (overruling Wright v. Steele, 2 N H. 51); Hale v. Gerrish, 8 N. H 374; Ford ». Phillips, 1 Pick. 202; Goodridge v. Ross, 6 Met. 487; Thing v. Libbey, 16 Maine, 55. See contra, Best v. Givens, 3 B. Mon. 72. But the dicta of some of the judges have been qualified by the later decisions in England. See Williams v. Moor, 11 M. & W. 256; Harris v. Wall, 1 Exch. 122. And

see next note.

(9) Hunt v. Massey, 5 B. & Ad. 902. This was an action by the drawer against the acceptor of a bill of exchange. It appeared that the defendant was an infant when he accepted the bill, but there was evidence of a ratification after he became of age. It was objected (inter alia) for the defendant, that the plaintiff ought to have declared specially, and not on the acceptance; because the defendant "was liable, if at all, not by reason of his acceptance of the bill, but of a promise made after he had come of age." Taunton, J.: Where a voidable contract is made by a party under age, and ratified after he has attained his full age, is it not usual to declare on the original promise? The first promise here was voidable only. As soon as it was ratified, it became binding ab initio." Patteson, J.: "If the defendant had pleaded infancy specially, the plaintiff might have replied, that after he had attained the age of twentyone years he assented to and ratified and confirmed the several promises in the declaration." Lord Denman: "The evidence amounted to a ratification of the original promise to pay, according to the tenor and effect of the bill of exchange, and might be declared on accordingly." In Reed v. Batchelder, 1 Met 559, it was held, that a negotiable note made by an infant is voidable, and not void; and if he, after coming of age,