Infant Contract during Infancy Goods Sold and Delivered Subsequent Recognition of Debt-9 Geo. 4. c. 12. s. 5.

To a declaration for goods sold and delivered, the defendant pleaded infancy, and the plaintiff replied a ratification of the debt after majority; in support of the replication a copy of the items of the account was put in evidence, at the foot of which the defendant, after he came of age, had written, "Particulars of account to end of year 1867, amounting to 1627. 11s. 6d. I certify to be correct and satisfactory," with the addition of his signature:-Held, not a sufficient recognition of the debt to satisfy the 9 Geo. 4. c. 12. s. 5; and that the construction of the document was for the Court, and not for the jury.

Declaration for money payable for goods sold and delivered, goods bargained and sold, and money due upon an account stated (1).

(1) The writ was issued out of the Court of Pleas of the borough of Cambridge, but the action was subsequently moved into the Court of Queen's Bench by certiorari.

NEW SERIES, 38.-Q.B.

Pleas-Payment into court of 153l. 48., and to the residue infancy.

Replication, that the defendant after he attained the full age of twenty-one years, and before action, by a writing made and signed by him, ratified and confirmed the said debts and promises in the declaration mentioned. Issue.

At the trial, which took place at the Cambridgeshire Summer Assizes, 1868, before Cockburn, C.J., it appeared that the action was brought to recover from the defendant, an undergraduate of Trinity College, the sum of 2041. 5s. 4d., balance of the price of wines, &c. supplied by the plaintiff, a wine-merchant, carrying on business in Cambridge. In support of the replication, the plaintiff offered in evidence a copy of the items of the account, at the foot of which the defendant had written as follows:

"Particulars of account to end of year 1867, amounting to 1627. 11s. 6d. I certify to be correct and satisfactory.

"Jan. 31, 1868."

"J. B. Hopwood.

The defendant had a verdict on the plea of infancy, and the learned Chief Justice being of opinion that the document written and signed by the defendant did not amount to a ratification of the debt under Lord Ten

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terden's Act, 9 Geo. 4. c. 14. s. 5, directed a nonsuit, with leave to the plaintiff to move to set aside the same and for a new trial.

O'Malley now moved accordingly.-The document written and signed by the defendant after coming of full age is a sufficient recognition of the debt to satisfy the requirements of the 9 Geo. 4. c. 14. s. 5, which enacts 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." The contract of an infant, although it be not for necessaries, is voidable only, and no new consideration for a subsequent promise is necessary; and it is clear from the language of the enactment in question that either a promise to pay or a recognition without a promise will constitute a sufficient ratification of a debt contracted during infancy. In delivering judgment in Harris v. Wall (2), Rolfe, B. says that "Apart from Lord Tenterden's Act, any act or declaration which recognizes the existence of the promise as binding, is a ratification of it"; and further, "Any written instrument signed by the party which, in the case of adults, would have amounted to the adoption of the act of a party acting as agent will, in the case of an infant who has attained his majority, amount to a ratification." Hartley v. Wharton (3) and Cory v. Gertchen (4) are also favourable to the plaintiff's construction of the document in question.

[COCKBURN, C.J.-In Thrupp v. Fielder (5) Lord Kenyon, Č.J. held a mere acknowledgment of a debt to be insufficient, and required proof of an express promise to pay.]

At all events, the construction of the document was for the jury, and not for the Court.

COCKBURN, C.J.-We are of opinion that there should be no rule. To entitle a

(2) 1 Exch. Rep. 122; s. c. 16 Law J. Rep. (N.s.) Exch. 270.

(3) 11 Ad. & E. 934; s. c. 9 Law J. Rep. (N.s.) Q. B. 209.

(4) 2 Madd. 40. (5) 2 Esp. 627.

plaintiff to recover a debt incurred by the defendant during infancy, the statute requires that there should be a ratification thereof in writing after the debtor has attained his majority, and the construction of such a document is for the Court and not for the jury. I concur with the view taken by the Court of Exchequer in the case cited; but the document with which we have now to deal eontains no such recognition of the debt as was there relied on. It seems that an account was handed to the defendant containing the items of the goods supplied, for the purpose of obtaining from him a recognition of the debt, and accordingly he writes thereupon what amounts simply to an admission that the items are correct, and adds his signature. That is not sufficient to enable the plaintiff to maintain this action, and we ought not in such a case to strain the language of the legislature, the object of which was that infancy should be a protection, unless, after the party has attained his majority, he should make a distinct and binding acknowledgment of the debt; and such I do not take to be the effect of the writing relied upon.

LUSH, J., HANNEN, J. and HAYES, J. concurred. Rule refused.

Debtor and Creditor-Composition Deed -Equality-Suretyship of Creditor-Discounting Compositions.

By a composition deed under the Bankruptcy Act, 1861, (24 & 25 Vict. c. 134.) 8. 192, the debtor assigned his property for realization and distribution to a creditor, who covenanted, as surety, with the general body of creditors, to pay to them by instal ments 58. in the pound on their debts, which sum he was also himself to receive; provided that he should not be liable under such covenant for a greater amount in the whole than

3,000l. The deed also provided that the surety should apply any surplus, which might remain after the payment of the composition, towards the payment of the remaining 158. in the pound on his own debt, it being thereby stipulated that he "should have the advantage of this security for the remainder of his debt, in consideration of his undertaking the liability of suretyship": -Held, that this stipulation created no such inequality as to avoid the deed.

The deed further provided, that if the surety should arrange with any creditor to make an immediate payment of the composi tion payable to him, with a deduction therefrom by way of discount in consideration of such immediate payment, the surety should be at liberty to repay himself out of the trust fund the full amount of the composition payable to such creditor, without deducting the sum allowed to the surety for discount:· -Held also, that this created no such inequality as to avoid the deed.

The declaration contained the usual money counts.

The defendants pleaded a composition deed, of which the material part was as follows:

"This indenture made the 1st of July, 1867, between William Jones the elder, William Jones the younger and Daniel Cripps Jones, of the city of Gloucester, trading in co-partnership under the style or firm of William Jones & Sons,' as builders and contractors for public and other works, and hereinafter called 'the said debtors,' of the first part; William Philip Price, Richard Potter and Charles Walker, of the city of Gloucester, timbermerchants, carrying on business under the style or firm of 'Price & Company,' of the second part; and all the creditors of the said debtors jointly, or of each or either of them separately, other than the said William Philip Price, Richard Potter and Charles Walker, of the third part: Whereas the said debtors are jointly indebted to the said Messrs. Price & Co. in the sum of 644l. 11s. 6d., and they are jointly or separately indebted to divers other creditors; and whereas the said debtors, being unable to pay their debts in full, it has been agreed that such arrangement shall be made between the debtors and

their creditors as is hereinafter expressed: Now this indenture witnesseth, that in pursuance of the said agreement in this behalf, and in consideration of the premises, the said debtors do hereby for themselves and every of them doth hereby for himself, bis heirs, executors and administrators, covenant with the said William Philip Price, Richard Potter and Charles Walker, their executors and administrators, that they, the said debtors, their heirs, executors or administrators, or some or one of them, will pay to the said William Philip Price, Richard Potter and Charles Walker, their executors or administrators, a composition of 58. in the pound on the said sum of 644l. 11s. 6d. owing to them as aforesaid, by the following instalments, that is to say, 2s. 6d. in the pound at the expiration of four calendar months from the 2nd day of May now last past, and 2s. 6d. in the pound at the expiration of twelve calendar months from the said 2nd day of May. And the said debtors do hereby for themselves, and every of them doth hereby for himself, his heirs, executors and administrators, and the said William Philip Price, Richard Potter and Charles Walker (as sureties for the said debtors, and by way of separate covenant) do hereby for themselves, and every of them doth hereby for himself, his heirs, executors and administrators, covenant with the several persons parties hereto of the third part, and their respective executors and administrators, that the said covenanting persons or their respective heirs, executors or administrators, or some or one of them, will pay to the said persons parties hereto of the third part respectively, or their respective executors and administrators, a composition of 5s. in the pound, on the amount of their respective debts, by the following instalments, (that is to say) 2s. 6d. in the pound at the expiration of four calendar months from the 2nd day of May now last past, and 2s. 6d. in the pound at the expiration of twelve calendar months from the said 2nd day of May: Provided always, that the said William Philip Price, Richard Potter and Charles Walker, or any or either of them, their or any or either of their heirs, executors or administrators, shall not be liable under the aforesaid covenant to a greater amount in the whole than the sum of 3,000. And