1 the price of a livery to his servant, as it was necessary that a person in his station should have a servant, although he was found not liable for the price of cockades furnished to some of the soldiers in his company. It seems to have been held in England, that a minor cannot be bound by a bond stipulating interest, even though it is alleged to be granted for necessaries;1 and it has also been doubted, whether a negotiable bill or note granted by a minor for necessaries will bind him even with reference to the original party; the objection to this being, that such a document might get into the hands of an onerous indorsee, who would not be bound to discuss the original consideration. 2 On the other hand, it is said that a promissory-note for necessaries would be valid, if made payable only to the person who supplied them. But such a distinction would not be admitted in Scotland. The general rule of our law is, that any obligation granted by a minor is reducible, either as being granted without consent of his curators, or on the ground of lesion; and, as this rule arises from the supposed incapacity of the obligant, it invalidates the obligation, whether in the hands of the original creditor, or of an indorsee. The plea, that the obligation was granted for necessaries, forms only an exception to this rule; and, therefore, it must be stated by an indorsee as well as by the original creditor, otherwise the obligation, even while in his hands, will be challengeable. Farther, if such a defence does exist, it seems to be equally effectual, whether the obligation has been granted with or without a clause of inte rest. 3. If a minor induces any party to take his obligation, by representing himself as major, his fraud will exclude him Fisher v. Mowbray, 8 East. 330. Williamson v. Watts, 1 Campb. 552; vide note, 553, referring to Trueman v. Hurst, 1 T. R. 40; and Bartlett v. Emery, ibid. 42, note a. 1 Campb. 553, note. from the privilege of setting aside the obligation; but the result will be different if the creditor knew of his minority, and caused a statement that he was major to be inserted in the deed merely to render it valid. 1 It does not appear to make any difference in the application of the foregoing doctrines to the case of a minor female, whether she is married or unmarried. The effect of marriage on obligations contracted by the wife during its subsistence, which is the same whether she be minor or major, shall be afterwards considered. 3 A bill, though drawn on a party while he is minor, will be a good obligation against him, if it is not accepted till majority. 2 But it will be necessary, in that case, that the acceptance should be dated, otherwise it will be presumed to be of the date when the bill was drawn. A promise made after majority to pay a bill or note subscribed during minority, will exclude the power of challenge. But such a promise, according to the law of Scotland, must be in writing, although it would not probably require a separate stamp, as it does not form a distinct obligation, but refers to a previous obligation. A promise to pay part, or even a partial payment, will not validate the whole bill or note, though that would validate an informal contract on the ground of homologation; for the only thing necessary, in the case of an informal contract, is to prove the contract, whereas, here, though it were proved, it is voidable entirely, on the ground of minority and lesion, and the power of rescinding it cannot be considered as renounced without a new and express promise. 4 1 Erskine, 1, 7, 36; Kennedy, 23d Feb. 1665. • This was ruled by Gibbs, C. J., in Stevenson v. Jackson, 4 Camp. 164. * Per Lord Ellenborough, in Taylor v. Croker, 4 Esp. 187. Vide Thrup v. Fielder, 2 Esp. 628, the principles of which, though it is an English decision, appear to be applicable to the law of Scotland. The acceptor of a bill drawn by a minor cannot plead the drawer's incapacity as a ground of defence against an onerous indorsee, although his author, to whom the minor indorsed it to be discounted, should have misapplied the money, minority being a plea exclusive to the minor himself. 1 But in a case, where an action was brought by the payee of a bill said to be drawn by a minor against the acceptor, a proof of the minority was allowed to the defendant, though it failed. As there was a privity in this case between the drawer and the plaintiff, the minority of the former was probably a good defence, even to the acceptor; since, if he had paid the bill, the drawer might, on account of his minority, have refused him credit for the payment. But this would have been no defence against an indorsee. Nor can the drawer or indorser of a bill accepted, or the indorser of a note granted by a minor, found any plea on his minority, since such drawer or indorser would be still liable by virtue of his draft or indorsation, although there had been no accep tance. 3 A minor may be the payee or indorsee of a bill or note that is for his benefit. But if a debtor pays the amount to a minor having curators without a discharge from them, he will be liable in second payment, unless in so far as he can shew that the money has been employed for the minor's advantage. 4 In one case, where a father was in embarrassed cir 'In Taylor v. Croker, 4 Esp. 187, Lord Ellenborough held, that, although the plea might have been good to the minor, if the action had been brought against him, it could not void the right of an indorsee who brought the action, though he derived his title through the minor. 3 Jeune v. Ward, 2 Stark. 330. * In Haly v. Lane, 2 Atk. 182, this doctrine is laid down as applicable, whether the bill or note has been accepted or granted by an infant or by a married woman. With regard to the latter case, vide p. 241-2. • Vide Erskine, 1, 7, 37, as to the inefficacy of payments made to minors. 4 cumstances, and not resident in Scotland, the Court held, that a person indebted to his children in a bond for £.500 was not bound to pay it even to him as their administrator, until he found security for its proper application. On the other hand, a minor without curators has, by law, the full administration of his own affairs, and no Court can force him to name curators. It was, therefore, decided, in one case,2 that he was entitled, without curators, to receive and discharge one-half of a moveable succession which had been left to him. But his right so to discharge had been the subject of great doubt in a previous case; and, in the last reported case, * where a minor without curators brought an action for payment of an heritable bond, the Court held, that the debtor was not obliged to pay it, although, on his agreeing to do so upon receiving security for his indemnification, they remitted to the Lord Ordinary to adjust the terms of the security. They appear to have distinguished in this case between principal sums and rents or interest, holding that minors might discharge the latter, as they might be presumed to be needed for their ordinary sustenance. But where debts, whether vested in bills or otherwise, are not clearly of this description, the general rule appears to be, that the debtor is not liable to make payment to a minor, unless there is a curator who can give him a discharge. Nothing but this can secure him against a challenge of the whole transaction afterwards on the ground of lesion, if the minor should squander the money, and he is not bound to make payment at such a risk. Even security for the due application of the money does not appear to be sufficient, since any debtor may insist, before payment, that he shall have a full and effectual discharge. 'Graham v. Duff, 22d Feb. 1794, Morr. 16383. *Kirkman v. Pym, 1st Aug. 1782, Morr. 8977. II. A wife cannot in general bind herself by subscribing a bill or note, or by contracting any personal obligation during the subsistence of the marriage, even with concurrence of her husband. On this ground it was held, in one case, 2 that a bill drawn by a husband upon and accepted by his wife was null as to her; and that having been accepted, (though the acceptance was void,) it could not be the foundation of summary diligence against him as drawer, under the acts 1681 and 1696, but must be recovered from him by an ordinary action. If the wife has a separate property, exclusive of her husband's jus mariti, she may grant a security over it; but a personal obligation by her, though included in the same deed with the security, for instance, such an obligation in an heritable bond, will be ineffectual. 3 There is some reason to think, from the opinion expressed in one case, and the decision given in another, 4 that the creditor might have a claim against her estate upon such an obligation, in so far as he could shew that the money advanced on the faith of it was expended for her benefit. But there can be no diligence against her person during the subsistence of the marriage on such a claim, 5 or even on claims contracted by her previously to the marriage, although there may upon obligations ad factum præstandum. 6 Personal diligence is likewise competent against her, after the dissolution of the mar 1 Vide cases reported in Morr. 5957-80. A. v. B. 17th Jan. 1736, Elchies, v. Bill, No. 12. * Both these points were decided in Menzies v. Gillespie's Creditors, 8th Dec. 1761, Morr. 5974, and Watson v. Robertson, 10th Dec. 1772, ibid. 5976. Harvey and Fawel v. Chissel's Trustees, 21st Feb. 1791, Morr. 5980. This was an action on a cautionary obligation granted by a wife with her husband's consent for behoof of her son, but which the Court found to be null. Vide also Nairne v. Mercer, 17th Nov. 1785, Morr, 5860, where the principle mentioned in the text was distinctly acted upon. 5 Gordon v. Pain, 5th Dec. 1738, Morr. 6079. Anderson v. Buchanan, 27th July 1775, Morr. 6081. |