Sec 54

Even the Infants' Relief Act, which in England makes absolutely void an infant's contracts, does not preclude a party from recovering in equity from an infant property that he has obtained by a false representation of his age ;5 nor, in equity, can an infant who has had money paid him on the faith of his statement that he is of full age, recover, on his majority, such money a second time from the party from whom it was obtained.6 And it has been further held, that a minor who holds himself out as of full age, and as such becomes a bankrupt trader, cannot subsequently contest the bankrupt decree on the ground of his infancy.7

Sec 55

In case of the death of an infant before reachi no; ma-jority, his representatives may disaffirm contracts made by him, subject to the conditions above stated. Thus his executors may refuse to fulfil an executory contract which he may have made ;8 and his heirs may by conveyance, or other method of repudiation, disaffirm prior conveyances made by him.1 The disaffirmance, however, must be made by heirs, if the contract relate to real estate, or by executors, if to personalty. His guardian is not his representative for this purpose.2 The privilege is personal.3 sec 56. No matter how numerous may be the ratifications of a contract by an infant, and how closely these may press upon his majority, they are without effect. The party to whom the ratification is imputed must be of full age, or otherwise it will be inoperative.4 On the other hand, we must remember that an infant can avoid a contract during infancy, though it is doubtful, as we have seen, whether such avoidance is otherwise than provisional until he is of full age.5 As to real estate, full age is necessary, it is said, to disaffirmance.6 It must also be remembered that, as is said by high authority, "voidable means not invalid until ratified, but valid until rescinded."7 Non-avoidance of a contract at full age, therefore, when the contract is brought to the party's notice, is, if intelligent and deliberate, a ratification.8 Undoubtedly much confusion has arisen from the use, in this relation, of the word "ratification," as if it involved the assumption, that prior to such " ratification" the supposed "contract" was not existent. But this is a wrong meaning of the term. A contract made by an infant, supposing him to have the mental power to do business, and supposing that he and the other contracting party agree as to one and the same thing to be done, binds him unless it is disaffirmed by him when he reaches full age. "When he reaches full age, and, being conscious of the existence of the contract, deliberately declines to repudiate, it may be enforced against him, dating not from his majority, but from the period of its original inception.1 The same distinction applies to the contracts of lunatics, mutatis mutandis.2 According to Mr. Chitty :3 "In the case of a continuing contract, which is voidable only by an infant on his coming of age, he is presumed to ratify such contract; if he do not, within a reasonable time after he has attained his full age, give notice of his disaffirmance of, or otherwise reject, such contract; unless, that is, the other party dispense with such disaffirmance."4 The distinction is this: A continuing contract, unless repudiated, continues in force. On the other hand, while the same principle applies to executory contracts, a refusal to perform is a disaffirmance, and has to be overcome by proof of actual prior ratification.5

Compella-ble in equity to restore things fraudulently obtained.

Privies may disaffirm contract.

1 Johnson v. Pie, 1 Lev. 169 ; Price v. Hewett, 8 Exch. 146; Brown v. Mc-Cune, 5 Sandf. 224; 1 Am. Lead. Cas. 117, 118; 1 Parsons on Cont. 317.

2 Lewis v. Littleneld, 15 Me. 233; Prescott v. Norris, 32 N. H. 101; Eaton v. Hill, 50 N. H. 235 ; Loop v. Loop, 1 Vt. 177; Humphrey v. Douglass, 10 Vt. 71; Green v. Sperry, 16 Vt. 390; Baxter v. Bush, 29 Vt. 465 ; Walker v. Davis, 1 Gray, 506 ; Sikes v. Johnson, 16 Mass. 389 ; Brown v. Maxwell, 6 Hill (N. Y.), 592 ; Wilt v. Welsh, 6 Watts, 9 ; Hughes v. Gallans, 31 Leg. Int. 349; Barham v. Turheville, 1 Swan, 437.

3 See Wh. Cr. L. 8th ed. sec 67 et seq.

4 McGee v. Willing, 31 Leg. Int. 37. That an infant is liable in cases of noncontractual tort, see further Prescott v. Norris, 32 N. H. 101.

5 Pollock on Contracts, 3d Eng. ed. 75, citing Bartlett v. Wells, 1 B. & S. 836; Clarke p. Cobley, 2 Cox, 173; Stiteman v. Dawson, 2 DeG. & S. 901.

6 Cory v. Gertoken, 2 Madd. 40.

7 Watson ex parte, 16 Ves. 265 ; Lynch ex parte, L. R. 2 Ch. sec 227.

8 Supra, sec 33; Stone v. Wythipol, Cro. Eliz. 126 ; see Ruchisky v. De Haven, cited supra, sec 48.

For ratification full age is necessary.

1 Whittingham's Case, 8 Co. 42 b.

2 Oliver v. Houdlet, 13 Mass. 240. In Taylor v. Johnson, 46 L. T. N. S. 219, it was ruled that a gift made by an infant and perfected by delivery cannot, after his death, be set aside, in absence of proof of fraud or undue influence, by his personal representatives.

3 Towle v. Dresser, 73 Me.

4 Metc, on Cont. 55, and cases cited, infra, sec 57 et seq.

5 Supra, sec 34.

6 Shipman v. Horton, 17 Conn. 481; Stafford v. Roof, 9 Cow. 626.

7 Pollock on Cont. (Wald's ed.) 42, citing Lord Colonsay, in re Overend, Gurney & Co., L. R. 2 H. L. 375.

8 Supra, sec 28; Forsyth v. Hastings, 25 Vt. 646. That affirmance must take place before action brought, see Thornton v. Illingworth, 2 B. & C. 824 ; Thing v.Libbey, 16 Me. 55 ; Conn v. Coburn, 7 N. H. 372; Hale v. Gerrish, 8 N. H. 374 ; Aldrich v. Grimes, 10 N. H. 198 ; Goodridge v. Ross, 6 Mete. 487.