Infants Relief Act, 1874.

(r) Stat. 37 & 38 Vict. c. 62.

(s) By the Betting and Loans (Infants) Act, 1892, stat. 55 Vict. c. 4, s. 5, if any infant, who has contracted a loan which is void in law, agrees after he comes of age to pay any money which in whole or in part represents or is agreed to be paid in respect of any such loan, and is not a new advance, such agreement, and any instrument, negotiable or other, given in pursuance of or for carrying into effect such agreement, or otherwise in relation to the payment of money representing or in respect of such loan, sha 1, so far as it relates to money which represents or is payable in respect of such loan, and is not a new advance, be void absolutely as against all persons whomsoever; and for the purposes of this section any interest, commission, or other payment in respect of such loan shall be deemed to be a part of such loan.

(() Duncan v. Dixon, 44 Ch. D. 211.

(u) This enactment does not prevent the parties to a contract made in the infancy of one of them from making a new contract to the same effect after the infant is come of age; see North-cote v. Doughty, 4 C. P. D. 385; Ditcham v. Worrall, 5 C. P. D. 410.

(x) By Lord Tenterden's Act, stat. 9 Geo. IV. c. 14, s. 5, no action should be maintained 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 were made by some writing signed by the party to be charged therewith. This enactment was superseded by s. 2 of the Infants Relief Act, 1874, and repealed by stat. 38 & 39 Vict. c. 66.

(y) Expte. Kibble, L. R. 10 Ch. 373; Coxhead v. Mullis, 3 C. P. D. 439.

(z) The burthen of proving infancy lay upon the party who pleaded it, but if this were established, the onus of proving ratification was upon the party who set up that plea; see Borthwick v. Carruthers, 1 T. R. 648; Cohen v. Armstrong, 1 M. & S. 724; Hunt v. Massey, 5 B. & Ad. 902; Hartley v. Wharton, 11 A. & E. 934; Williams v. Moor, 11 M. & W. 258; Harris v. Wall, 1 Ex. 122; North Western Ry. Co. v. Mc Michael, 5 Ex. 114, 125, 126; Chitty on Pleading, i. 607, iii. 33, 170, 177, 426, 7th ed.

(a) See Goode v. Harrison, 5 B. & A. 147.

As a rule, when an infant makes a contract which is voidable at his option, the other party is firmly bound, and the infant can enforce the contract either during infancy or afterwards (g). But an infant cannot enforce during infancy the specific performance of any contract made by him, on account of the want of mutuality of remedy between the other party and himself (h). It appears, however, that formerly an infant might successfully sue on attaining full age for specific performance of a contract made in infancy and originally voidable by him; for to maintain such an action he must have submitted to perform his part of the contract, and that would have been an affirmance of his liability thereunder and would have rendered the remedy mutual (i). But it seems that, since the Infants Relief Act, 1874 (k), an infant can no longer enforce the specific performance of such a contract after attaining full age, unless the contract be one of the continuing kind, which remain binding on him unless he avoid them (l). For in all other cases he cannot now bind himself by ratification of the contract; and so there can be no mutuality of remedy.

The other party to an infant's contract is bound.

Infant cannot enforce specific performance.

(a) See Goode v. Harrison, 5 B. & A. 147.

(b) Ketsey's case, Cro. Jac. 320; and see Holmes v. Blogg, 8 Taunt. 35.

(c) Cork and Bandon By. Co. v. Cazenore, 10 Q. B. 935; North Western By. Co. v. McMichael, 5 Ex. 114; Lumsden's case, L. R. 4 Ch. 31; Ebbett's case, L. R. 5 Ch. 302.

(d) Duncan v. Dixon, 44 Ch. D.

211, 214; Carter v. Sitter, 1892, 2 Ch. 278; affirmed, nom. Edwards v. Carter, 1893, A. C. 360.

(e) See above, p. 745.

(f) Carter v. Silber, 1892, 2 Ch. 278, 284; affirmed, 1893, A. C. 360; and see Viditz v. O'Hagan, 1900, 2 Ch. 87, S6 - 100.

(g) Warwick v. Bruce, 2 M. & S. 205, 6 Taunt. 205.

To apply these principles to sales of land: - A completed sale of land by an infant is, as a rule, voidable at his option (m); he may recover the land, and it appears that, in the absence of fraud, he cannot be obliged to repay the purchase money (n). But if he fraudulently represented himself to be of full age, he would in equity-be restrained from recovering the land without refunding the price (o). A completed purchase of land by an infant is voidable at his option in the sense that he may disclaim the estate (p), and so escape any liability incident thereto; as the liability for the rent and covenants, if the land bought were leasehold (q). But it is doubtful whether he can in any case recover the price paid. He certainly cannot do so unless he be in a position to make entire restitution; for it is established that, if this condition cannot be complied with, an infant cannot recover money paid for the purchase of things which are not necessaries (r). Thus if he purchase leasehold land, which is a wasting property, he cannot recover the price paid for it (s). It is not certain, however, that if an infant buy land held in fee, he cannot avoid the purchase and also recover the price. For the reason why an infant has been held to be debarred from recovering money paid by him on a purchase, seems to be that he could not put the other party in the same position as before (t); and we have seen that in the case of a purchase of land induced by fraud, mere occupation of the land sold is not considered to be a bar to restitutio in integrum, so long as the land has not been wasted (u). There seems therefore to be ground for contending that an infant may in like case recover his purchase money (x). It appears too that, if there were a total failure of consideration on the purchase of land by an infant - as if the vendor had no title, and the infant were instantly ejected - the infant might recover the price paid (y). If an infant buy land without paying the whole or part of the purchase money, he holds the land subject to the vendor's lien thereon for the amount unpaid (z); and if land bought by an infant be paid for with money advanced to him by another person for the purpose, the lender is entitled by subrogation to the same lien as the vendor would have had, if he had remained unpaid (a). If an infant contract to sell or buy land, the contract appears to be voidable at his option (b). The other party is completely bound at law, but the infant cannot enforce the specific performance of the contract, either during infancy, or (it seems) after attaining twenty-one (c). And the other party cannot effectually sue the infant on any ratification of the contract made by him after coming of age (d). It does not appear that an infant's contract to pay after attaining full age, either wholly or partly and either at one time or by instalments, for land bought by and conveyed to him in infancy would be such a contract as would be binding on him after coming of age unless he repudiated it within a reasonable time thereafter (e). Thus if in such case the vendor waived his lien and accepted the infant's personal liability or his promissory note or notes for such payment, it is thought that, apart from the Infants Relief Act, the onus of proving a ratification of the contract would fall on the vendor, and so that Act would deprive him of any remedy for the recovery of the money (/'). It has been held that, if an infant contract to buy land and pay a deposit, and afterwards refuse to complete the purchase, he cannot recover the deposit, unless he can show that the contract was induced by the vendor's fraud (g). But it is submitted that this decision is open to be reviewed in the light of the principle established as above mentioned, that where an infant pays money for the purchase of other things than necessaries, he cannot recover it if he be not in a position to make entire restitution to the seller (/?.); and that, according to later cases, if an infant pay away money without getting the possession or substantial enjoyment of anything in return, the payment is voidable and the money recoverable (i).