*effect on the other contracting party. And,

[*216] as to him, the rule is, that he is bound, though the infant is not; for, to use the words in which the rule is stated in Bacon's Ab., Infancy, I. 4,-" Infancy is a personal privilege of which no one can take advantage but the infant himself; and, therefore, though the contract of the infant be voidable, yet it shall bind the person of full age; for, being an indulgence which the law allows infants to secure them from the fraud and imposition of others, it can only be intended for their

Shepherdson, 11 Ad. & Ell. 415, 39 E. C. L. R., which decided that a good consideration once forfeited could not be revived by a parol promise founded upon a moral obligation. There is nothing in the terms of the statute to supply the want of consideration; or at all to help the action; it simply requires that evidence of the ratification shall be in writing. The case of an acknowledgment to take a debt out of the Statute of Limitations appears in this respect analogous; in that case the plaintiff declares not on the acknowledgment, but on the original contract; see Leaper v. Tatton, 16 East, 420. If this be a correct view of the case where the defendant pleads infancy, the plaintiff, instead of a new assignment, replies the ratification, as in Hartley v. Wharton, 11 A. & E. 934, and Cohen v. Armstrong. [Since this note was written, the view thus suggested was expressly taken in Harris v. Wall, 1 Excheq. 129.] It has been held that where the infant has given a bond, it cannot be ratified by the usual memorandum, so as to give a right of action upon it; for an instrument under seal can only be confirmed by one of as high a nature. Baylis v. Dyneley, 3 M. & Sel. 477. See as to the evidence of the ratification, p. 79, ante.

But see the comments on this case, in 1 Amer. Lead. Cases, 259, where it is shown, that inasmuch as it is well settled in this country that an infant's bond is not void, but only voidable, the ratification does not operate to impart to it anything which did not exist in it before, but merely to take from it its quality of voidableness, and hence that a specialty may be confirmed by a parol promise after full age. In the note referred to, the student will also find a classification of the cases as to what acts will amount to a confirmation of a sale of real estate made during infancy.

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, would, in many cases, turn greatly to his detriment." Thus, for instance, in Holt v. Ward, 2 Strange, 937, a gentleman of full age had promised to marry a minor. It was decided that she might maintain an action against him for breach of promise, though he could not have done so had she refused to perform her side of the contract.' Again, in Warwick v. Bruce, 2 M. & S. 205, an infant was allowed to maintain an action on a contract to purchase a crop, on which no action could have been maintained against him.2

I now come to the second class of persons on whose

1 The case was four times argued; see the report in Fitzgibbon, 175, 275; and the decision was recognised by Lord Hardwicke, in Harvey v. Ashley, 3 Atkins, 610, and on this side of the Atlantic, the decisions in Hunt v. Peake, 5 Cowen, 475; Willard v. Stone, 7 Id. 22, and Carman v. Ashbury, 1 Marshall, 78, were based on its authority.

But liberal as is the law towards infants, it does not allow them to retain the possession of property, and still repudiate the contract by which that possession has been obtained; and as by the avoidance of the contract the property revests in the vendor, the latter may bring trover, replevin, or detinue; Mills v. Graham, 4 Bos. & Pul. 140; Badger v. Phinney, 15 Mass. 359; Boyden v. Boyden, 9 Met. 519; Jefford v. Ringgold, 6 Alab. 544. And so with respect to real estate; he cannot disaffirm securities given for the purchase money, and still claim the land under his deed; Weed v. Beebe, 21 Vermont, 495. If, however, the goods have been wasted, sold, or otherwise disposed of by the infant, after the coming of age, these acts, as we have seen, amount to an affirmation of the contract, and he will then, the bar of infancy being thus removed, be liable upon the contract; but if the goods have been wasted or sold during infancy, neither trover nor detinue will lie, for a refusal after age to deliver, when he has not the goods, is no conversion; Fitts v. Hall, 9 New Hamp. 441; Boody v. M'Kenney, 23 Maine, 517; and

capacity to contract I think it necessary to observe : I mean that of married women.

Now, a contract by, or with a married woman, *is one of two sorts. It is either a contract [*217] which she entered into before her marriage, and which continued in existence afterwards; or, it is a contract which she entered into subsequently to her marriage.

Now, with regard to the former description of contracts, I will dispose of them in a few words. Upon the marriage, the benefit of, and the liability to the wife's contracts, made before marriage, vest in the husband, and continue vested in him during the continuance of the marriage. If she die before they are enforced, and he survive her, he is entitled to the benefit of such contracts, not in his own right, but as her administrator; and liable to be sued on them, not

detinue does not lie where the goods have been parted with in a manner authorized by law; Pool v. Adkisson, 1 Dana, 110.

Upon the subject of an infant's liability for torts, the manner in which he is made a party to an action, and many other important branches of this subject, the student is again referred to the note to Tucker v. Moreland, 1 Amer. Lead. Cas.

1 Collins v. Hoxie, 9 Paige, 81; Hunter v. Hallett, 1 Edward's Ch. 388; Coleman v. Waples, 1 Harrington, 196. So that if the husband die without having taken out letters of administration, his administrator cannot recover her choses in action, but administration must be taken out to the wife; Betts v. Kimpton, 2 Barn. & Adolph. 273, 22 E. C. L. R.; and Lord Tenterden well observes in that case that the question is not who is actually entitled to the property, but who has the right to sue for it; for although the latter right is vested in the representative of the wife alone, yet he is considered in equity as a trustee for the representative of the husband; Squib v. Wyn, 1 P. Wms. 368; Stewart v. Stewart, 7 Johns. Ch. R. 229. If, however, the husband has taken out letters of administration to his wife's estate, and die before its full administration, his representative is, in the absence of any statutory enactment, entitled to administration de bonis non; Donnington v. Mitchell, 1 Green's Ch. R. 346.

in his individual capacity, but as his wife's administrator. If she survive him, her right to the benefit of, or liability upon such contracts revives, assuming always that nothing has been done to put an end to the contract during the continuance of the marriage.'1 (See for these points, Ramsey v. George, 1 M. & S. 180; Betts v. Kimpton, 2 B. & A. 273, 22 E. C. L. R.;

'Blount v. Besland, 5 Vesey, 315; Schuyler v. Hoyle, 5 Johns, Ch. 196; Hayward v. Hayward, 20 Pick. 517; Strong v. Smith, 1 Met. 476; Weeks v Weeks, 5 Iredell's Eq. R. 111, where the previous cases in North Carolina are noticed. The result of these principles, then, briefly is, that for all the debts of the wife, contracted before marriage, no matter how improvident they may be, the husband is personally liable during the coverture, and no longer, and this, though he may not have received a cent by her; and, on the other hand, upon her death, his personal liability for her debts contracted before marriage is wholly wiped out, though he may have received a fortune by her. The apparent injustice of this latter rule, than which nothing is better settled (Tabb. v. Boyd, 4 Call, 453; Buckner v. Smyth, 4 Desaussure, 371; Witherspoon v. Dubose, 1 Bailey's Ch. R. 166), has often been strongly urged, and equity been invoked to modify it, and Lord Nottingham is reported to have said with some earnestness that "he would alter the law on that point," (Freeman v. Goodham, Ch. R. 295;) but in Heard v. Stamford, Cas. temp. Talbot, S. C. 3 P. Wms. 411, the Chancellor said, "It is extremely clear that by law the husband is liable for the wife's debts only during the coverture, unless the creditor recovers judgment against him in the wife's lifetime, and I do not see how anything less than an act of Parliament can alter the law. If I relieve against the husband because he had sufficient assets with his wife wherewith to satisfy the demand in question, by the same reason where a feme, indebted dum sola, marries, bringing no fortune to her husband, and judgment is recovered against the husband, after which the wife dies, I ought to grant relief to the husband against such judgment, which yet is not in my power, consequently there can be no ground for a court of equity to interpose in the present case; and if the law, as it now stands, be thought inconvenient, it will be a good reason for the legislature to alter it, but till that is done, what is law at present must take place." See to the same effect the remarks of Lord Redesdale, while Chancellor of Ireland, in Adair v. Shaw, 2 Schoales & Lefroy, 263.

Mitchison v. Hewson, 7 T. R. 350, Com. Dig., Tit. Baron and Feme, N.) (a)

*During the marriage the husband may, as

[*218] I have said, sue or be sued upon his wife's con

tracts, made while she was a single woman; but if he

(a) A new feature arose in the later case of Sherrington v. Yates, 12 M. & W. 855, where the assignees of a bankrupt brought an action in their own names on a promissory note made to the wife of the bankrupt dum sola [and in the Court of Exchequer were held entitled to recover]. The case was carried to the Exchequer Chamber, and it was there adjudged [reversing the judgment below] (after declaring the exact doctrine expressed above by Mr. Smith, to the effect that choses in action, of which a promissory note is one, not reduced into possession, survive to the wife) that "the assignees of the husband, by bringing the action in their names alone, have deprived the wife of this possible benefit; for, as she is not a party to this record, she cannot make any suggestion upon it, or entitle herself to any advantage upon her husband's death. And as the assignment in bankruptcy has not the effect of reducing into possession a chose in action belonging to the wife, so as to destroy her rights of survivorship (Mitford v. Mitford, 9 Ves. 87), and again, as the Bankrupt Laws do not profess to vest any property in the assignees other than that which was the property of the bankrupt himself, the case of reputed ownership excepted, it would follow that the assignees cannot deprive the wife of any interest which she has in a chose in action, nor of any contingent benefit or advantage which might accrue to her in the endeavour to reduce such chose in action into actual possession. Upon principle, therefore, we think that no more passes to the assignees than the husband himself had; and if he had no right by law to sue alone, without joining the wife, so neither would the assignees. We are not called upon to express our opinion whether the action should be brought in the joint names of the assignees and the wife. The Vice Chancellor of England, in the case of Pierce v. Thorneley, 2 Sim. 167, has, however, expressly stated such to be his opinion, and as such allegations must appear upon the record, in the case of an action upon a promissory note given before intermarriage, as are necessary to show the grounds upon which such a joinder takes place, it is sufficient to say, that at present we can perceive no objection to such a form of action."

1

Shay v. Sessamen, 10 Barr, 432; Eshelman v. Sherman, 1 Harris, 563.