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volunteer corps of which he is a member (v). An infant is liable for necessaries supplied for his wife (w), or for his child (a), or if he be a housekeeper, for victuals supplied for his household (y). what are 2. What are held not to be necessaries. An infant

not neces

saries. captain in the army was held not to be liable tor cockades ordered for the soldiers of his company(z); and a lieutenant in the navy, not in commission at the time, was decided not to be liable for the price of a chronometer sold to him by the plaintiff (a). So articles clearly above the rank and station of the infant will not be deemed necessaries ; as silk dresses and other expensive articles, for a servant maid (6). It must appear that the necessaries were for the infant himself (c); therefore a replication to the plea of infancy, that the articles were necessary for the defendant's horses, was adjudged bad, because it was said, non constat that the horses were necessary for the infant (d).

(v) Coates v. Wilson, 5 Esp. 152.
(w) Turner v. Trisby, 1 Str. 168.
(x) Bull. N. P. 155.

(y) Hilly. Blackton, cited 1 Sid. 112 ; Tubervillev. Whitehouse,
1 C. & P. 94.
(z) Hands v. Slaney, 8 T. R. 578.

(a) Berollesv. Ramsay, Holt, N. P. C. 77.

(b) Hedgley v. Holt, 4 C. & P. 104. And see Makarell v. Bachelor, Cro. Eliz. 583; S. C. Gouldsb. 168; Burghart v. Angerstein, 6 C. & P. 690.

(c) Ive v. Chester, Cro. Jac. 560.

(d) Clowes v. Brooke, Cro. Eliz. 1101; S. C. Andr. 277. But

V

The vendor will not be entitled to recover even for such articles furnished to an infant as usually fall within the description of necessaries, if they have been supplied in unreasonable quantity, or at extravagant cost (e); nor can he recover if he knew, or might have ascertained, that the infant was living at the time with his parent or other relation, and was suitably maintained (/). And it seems to be incumbent on the plaintiff in such case to prove, that he had inquired of the parent if the articles ordered by the infant were really wanted (g), whether the action be brought against the infant himself, or against his parent or other legal guardian (h) ; but there may be circumstances, from which a jury may infer the assent and authority of the parent (tj.

An infant is not bound for goods supplied to infant can. him in the way of his trade. Where defendant, "ot trade" being under age, kept a mercer's shop, and bought

in the report in Andrews it is said, that the replication might have been, "physick, &c., for defendant's horses kept for his necessary use."

(e) Simpson v. Robertson, 1 Esp. 17.

(/) Bainbridge v. Pickering, 2 Bl. Rep. 1325 ; Story v. Pery, 4 C. & V. 526; Borinsale v. Greville, Selw. N. P. 128; Beak v. Leave, Ibid. ; Burghart v. Angerstein, 6 C. & P. 690.

(g) Ford v. Fothergill, Peake 229 ; Cook v. Beaton, 3 C. & P. 114.

(n) Blackburn v. Mackey, 1 C. & P. 1 ; Fluck v. Tollemache, 1 C. &. P. 5; Crantz v. Gill, 2 Esp. 471; Rolfe v. Abbott, 6 C. & P. 286.

(i) Baker v. Keen, 2 Stark. N. P. C. 501.

wares of the plaintiff in order to sell them again, it was held that the latter could not recover; even though the infant gain his living thereby ; because the policy of the law does not allow an infant to trade (J). Therefore an infant cannot become bankrupt, and a commission issued against him would be not voidable merely, but absolutely void (k).

The vendor cannot recover against an infant on an account stated (/); nor on a bill of exchange or promissory note, though given in payment for necessaries (m), unless accepted after he came of age (n); nor is he liable for money lent, though it be proved to have been expended in the purchase of necessaries (0).

(J) Whittingham v. Hill, Cro. Jac. 494 ; Dyer 104, b. in mar.; S. P. Whywall v. Champion, Str. 1083 ; Dilk v. Keighley, 2 Esp. 481; Williams v. Harrison, Carth. 160; Tuberville v'. Whitehouse, 1 C. & P. 94; Corpe v. Overton, 10 Bingh. 252 ; S. C. 3 M. & Sc. 738.

(k) Belton v. Hodges, 9 Bingh. 365.

(0 Ingledew v. Douglas, 2 Stark. N. P. C. 36; Trueman v. Hurst, 1 T. R. 40; Bartlett v. Emery, 1 T. R. 42, n.

(hj) Williamson v. Watts, 1 Campb. 552 ; Williams v. Harrison, Carth. 160. But it seems he would be bound by any instrument not negotiable, as a single bill (Russell v. Lee, 1 Lev. 86), or bond for the exact amount (Ayliff v. Archdale, Cro. Eliz. 920); and perhaps a promissory note in the hands of the vendor (but not of an indorsee) would be evidence of a debt. See Holt, 78, n. 1 Campb. 553 n.

(n) Stevens v. Jackson, 4 Campb. 164.

(o) Darley v. Boucher, 1 Salk. 279; Earle v. Peale, 1 Salk. 387; S. C. 10 Mod. 67; Probart v. Knouth, 2 Esp. 472, n.;

Where an infant is a co-contractor, he ought not infant eo

_ contractor.

to be joined in an action brought against the other; and if the nonjoinder is pleaded, the plaintiff should reply the infancy, which will be no departure (p) ; but if he reply that the contract was with the defendant alone, this will not be supported by proof that the contract was jointly with the infant, since the contracts of an infant are voidable only (g). If, in an action brought against several partners or co-contractors, one pleads infancy, the plaintiff cannot enter a nolle prosequi as to him, and proceed against the others, but he must discontinue and commence de novo against the adult defendants (r). If the infant partner does not disaffirm the partnership on attaining full age, he will be liable jointly with the other partners for contracts subsequently entered into (s).

3. Of Ratification on attaining full age.—To Ratification, the plea of infancy it is a good replication, that the defendant ratified the promise on coming of

Ellis v. Ellis, 1 Ld. Raym. 344. [But the infant would be liable in equity if the money has been actually so applied (Marlow v. Pitfield 1 P. Wms. 558) ; and an infant has been held liable at law, for money advanced in order to liberate him when taken in execution for necessaries; Clarke v. Leslie, 5 Esp. 28; Male v. Roberts, 3 Esp. 163.]

(p) Burgess v. Merrill, 4 Taunt. 468.

(q) Gibbs v. Merrill, 3 Taunt. 307.

(r) Chandler v. Parkes, 3 Esp. 76 ; Jaffray v. Frebain, 5 Esp.

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

age {t). If the plaintiff proves a promise, and the defendant pleads infancy, the proof of such defence rests on the defendant, as it is a fact peculiarly within his knowledge (w); but it has always been held, that to charge a person on a must be ex- contract entered into during infancy, on the ground that the contract has been ratified on attaining majority, an express promise must be proved by the plaintiff; mere acknowledgement, whether implied or expressed, is insufficient (&). The subsequent promise must be made voluntarily, not under fear of an arrest and in ignorance that infancy is a discharge of liablity (3/); and it must be made before action brought (z); and by the infant himself, not by his executor after his death (a). When there has been a promise to pay part of the debt, it will only bind the infant as far as the promise extends, and no further (b). If the

(t) Southerton v. Whitclocke, 1 Stra. 690; Cooper v, Martin, 4 East, 83; Ball v. Hesketh, Comb. 381; Wood v. Wltherick, Noy, 87.

(u) Borthmick v. Carruthers, 1 T. R. 648; Rose. Ev. 247.

(.r) Thrupp v. Fielder, 2 Esp. 628 ; Lara v. Bird, Peake's Ev. 297; Hyling v. Hastings, 1 Ld. Raym. 389, per Holt, C. J.

(y) Harmer v. Killing, 5 Esp. 102.

(2) Thornton v. Illingworth, 2 B. & C. 824; Cohen v. Armstrong, 1 M. & S. 724; though a promise is sufficient after action brought to take a case out of the Statute of Limitations, Yea v. Fouraker, 2 Burr. 1099.

(a) Stone v. Wythipoll, Cro. Eliz. 126.

(b) Green v. Parker, Peake's Ev. 297. Payment of money into Court, as to part of the demand, is not such an acknowledge

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