bill of exchange for them. At Common law a contract by an infant was voidable and might have been repudiated or ratified on the infant coming of age, and 9 Geo. IV, c. 14, enacted that ratification must be in writing. But the whole law was altered by the Infants' Relief Act 1874, since which any contract entered into by an infant (other than for necessaries), shall be absolutely void, and no action lies against him upon ratification made after full age. A contract for payment of a loan made during infancy is also avoided by the Betting and Loans (Infants) Act 1892. For torts the infant is liable. Ginnett v. Whittingham, above, is good authority for this. There was no doubt as to his liability, the only point was whether conusance lay. But the tort must be independent of contract, and a contractual liability cannot be got rid of by framing the action in tort.2 The infant may be liable for an independent tortious act which he was expressly forbidden to do by the other party to the contract. In the leading case on the subject an undergraduate of Trinity, Cambridge, hired a horse, the owner expressly stipulating that it should not be used for jumping, and the Trinity man only paid the amount charged for a horse not expected to jump. The defendant lent it to a friend who jumped the horse and staked it. It was held that the defendant was liable. "There has been an actionable wrong," said Erle, C.J., "for which the defendant is liable, independently of the finding of the jury that the hiring of the horse was a necessary suitable to the degree and station in life of this young man.”3 Representation by an infant that he is of age apparently does not allow him afterwards to insist on his absence of capacity to contract. But it seems doubtful whether if he represent

4

1 Re Soltykoff, L. R. [1891], 1 Q. B., 413.

2 Jennings v. Rundall [1799], 8 T. R., 335.

8 Burnard v. Haggis [1863], 14 C. B., N. S., 45.

4 This seems to be the effect of such cases as Mills v. Fox [1887], 37 Ch. D., 153. At Common law, before the Judicature Acts, there was no liability on such

himself as agent when he is not, he would be liable to an action for breach of warranty of authority, an action of tort. The case might be illustrated by a man under twentyone opening an account at an Oxford bank and falsely declaring to the manager that he had his father's authority to do so. The father would not be liable on an overdraft. Would the son be, unless indeed the cheques were for necessaries? An undergraduate, besides making himself liable for education, might enter into a valid contract for tuition to others or for the post of assistant-master in a school, if the terms be fair and reasonable and not manifestly to his disadvantage.1 Protection from betting circulars and similar temptations is afforded to minors by the Betting and Loans (Infants) Act 1892. Under the provisions of this Act the sending of any such circular to any person at any university, college, school, or other place of education, where such person is an infant, is guilty of a misdemeanour, and the sender shall be deemed to have known that such person was an infant, unless he proves that he had reasonable ground for believing such person to be of full age. There is probably an implied contract that a university. or college supplies efficient tuition. An action would lie by an undergraduate-by his next friend should he be an infant-for breach of the contract to educate. A member of a college is bound to conform to reasonable rules of discipline, and if he do not do so, the contract to educate is not broken. In a recent case a Cambridge undergraduate was expelled for refusal to go to chapel. He brought an action for breach of contract to educate. The college set representation, Stikeman v. Dawson [1847], 16 L. J., Ch., 205. Roman law allowed liability of the minor where he became locupletior, Dig. iv, 3, 1, 13. In Woolf v. Woolf, L. R. [1899], I Ch., 343, an injunction was granted, and the infant had to pay costs.

1 See cases in Anson, Law of Contract, pt. ii, c. iii, s. 2.

2 This was one of the grounds of action in the well-known Haileybury case, Hutt v. Governors of Haileybury College [1888], 4 Times L. R., 623, as well as in the following case.

up the Statute of Frauds as a defence to the alleged contract, also that by 56 & 57 Vict., c. 61, s. 1,1 more than six months had elapsed since the act complained of. On the trial at Herts Assizes, Wills, J., directed judgment for the college on the ground that the relation of an undergraduate to his college was in matters of discipline not a contractual one.2 Even if over twenty-one years of age the undergraduate has no borough vote for Oxford or Cambridge, whether he reside in college or in lodgings. The only exception is to be found in scholars of Trinity College, Dublin. The undergraduate is liable to the Criminal law like any other subject, the only difference being that in some cases he is amenable to a special tribunal. At the same time he cannot create a crime by persuading a companion of the other sex to walk with him.3

JAMES WILLIAMS.

IV. FORM OF WILL OF AN ALIEN IN

FRANCE.

S the rule Locus regit actum as applied to the form of the will of an alien made in France optional or obligatory? A recent decision of the Court of Cassation has made a strenuous attempt to allay the controversy which has been raging around this question for more than half-a-century, aroused, or more accurately speaking, revived and whetted as it was by a previous decision of a section of the same Court of 1853. There is room for hope that

1 The Public Officers' Protection Act 1893.

2 Green v. Peterhouse, The Times, 10 Feb., 1896. The contract to educate might also be broken should an undergraduate be expelled or sent down for a definite time without being heard in his defence. Unless indeed it be one of the rules of discipline, as it is in many colleges, that failure to pass university examinations in a given time means withdrawal from the college.

8 As was held in the famous case of R. v. Hopkins, already noticed.

4 Case of Gesling v. Viditz.

this attempt has been successful. For although there is no theoretical finality about the decisions of this the Supreme Court, in view of the privilege accorded to the lower Courts of France-where case-law is unknown-of disregarding its decisions, nevertheless the circumstances under which the decision in the recent case of Gesling v. Viditz was rendered entitle it to extreme respect, and it likewise harmonizes, not only with legal and historical precedent, but also with every possible consideration of practical convenience.

The matter is of sufficient importance to warrant brief historical review and comment.

On the 9th March, 1853, then, the Chambre des Requêtes of the Court of Cassation laid down that the principle Locus regit actum is universally applicable to wills in common with all other public (i.e., notarial) or private deeds. Thus an alien desiring to make his will in France must, of necessity, adopt one of the forms known to French law, that is to say, must either have recourse to a notary and make a "public" or "mystic" will; or in the alternative adopt the holographic form, that is, write the will throughout, date and Isign it with his own hand. In other words, the Court laid down the unmistakable proposition that the local form was obligatory, not optional. The facts upon which the decision was based seem to have been somewhat peculiar, for, as far as can be gathered from the report in Dalloz, the testator's original intention was not to make a will in English form, but to make a French holographic will; this, however, he failed to do, the will not being entirely written by him, and two codicils thereto, although written by him, being dated by someone else.

The practical inconvenience of this decision is quite obvious. Suppose an Englishman or an American in France ill, crippled or infirm to the point of being incapable or unequal to the effort of writing out a lengthy document

in his own hand, while just able to sign his name or make his mark, so that it is impossible for him to execute a valid holographic will, but easy to execute a valid will in the ordinary English or American form. His only alternative is to call in a French notary and execute a French notarial will. This will would be valid as to English personalty under the Wills Act 1861, but might not in the case of a public will (the witnesses to which are hardly subscribing witnesses in the English sense), and in the case of a "mystic" will (where witnesses to the will itself are not necessary), would not pass English freeholds; nor leaseholds (Pepin v. Bruyère, L. R. [1902], I Ch. 24); similarly as to American realty, at all events in the case of an American testator domiciled in one of the States which have derived their legislation from the English Common law.

Query, indeed, whether in such States as have not a statutory provision similar to the English Wills Act of 1861, it would even pass personalty unless the testator were domiIciled in France. At best, therefore, the exigency would involve cumbrous and unfamiliar formalities. At worst, the testator would find himself subject to the hardship of being unable to validly dispose of perhaps a considerable portion of his property. Not only is this ruling out of harmony with English and other legislations, but it is also inconsistent with the privilege which a Frenchman has of making his will abroad either in the French or local form at his option.1

The same Court has now, in the case of Gesling v. Viditz, in accordance with the almost unanimous expectation of the judicial world, reversed its former ruling and declared the rule to be optional, not compulsory, in respect of private (i. e., non-notarial) wills at any rate. This decision carries all the more weight in that it was rendered by the Chambre Civile after leave to appeal had been granted by that very 1 Civil Code, Art. 999.