drink, apparel, physic, and likewise for his good teaching and instruction (p). The question of necessaries is a relative fact, to be governed by the fortune or circumstances of the infant, and proof of these circumstances lies on the plaintiff (q). They ought to correspond with the real circumstances, and not the mere appearance in life, of the infant (r). The question is usually one of fact for the Jury, but their verdict is subject to the control of the court in point of law (s). It has been held that unless the question is exclusively one of law, if any of the articles furnished to the defendant fall within the description of necessaries, the evidence ought to be left to the Jury (t).

The defendant, being a Captain in the army, was held to be liable for livery furnished for his servant;-Lord Kenyon, C. J. observed, that he could not say it was not necessary for a gentleman in defendant's situation to have a servant, and if it were proper, it was equally necessary that the servant should have a livery (u). So an infant is liable for the cost of a suit of regimentals for a

(p) Co. Litt. 172, a. Com. Dig. Enfant, B. 5; Bac. Abr. Infancy, I. 1.; Vin. Abr. Enfant, C.; Huggins v. Wiseman, Carth. 110; Pickering v. Gunning, Palm. 528; Jones, 182; March, 40. (q) Per Lord Kenyon, C. J., 1 Esp. 211; Rosc. Ev. p. 245. (r) Ford v. Fothergill, 1 Esp. 211; S. C. Peake, 229. (s) 2 Stark. Ev. 406; Makarell v. Bachelor, Cro. Eliz. 583. (t) Maddox v. Miller, 1 M. & S. 738; Bliss v. Palmer, Peake, 303, n. (3rd ed.).

(u) Hands v. Slaney, 8 T. R. 578.

C

What are not neces

saries.

volunteer corps of which he is a member (v). An infant is liable for necessaries supplied for his wife (w), or for his child (x), or if he be a housekeeper, for victuals supplied for his household (y).

2. What are held not to be necessaries. An infant captain in the army was held not to be liable for cockades ordered for the soldiers of his company(); 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 (b). 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) Hill v. Blackton, cited 1 Sid. 112; Tuberville v. Whitehouse, 1 C. & P. 94.

(z) Hands v. Slaney, 8 T. R. 578.

(a) Berolles v. 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

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 (ƒ). 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 (i).

not trade.

An infant is not bound for goods supplied to Infant canhim in the way of his trade. Where defendant, 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.

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

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

(h) 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 (1); 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 (o).

(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.

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

(m) 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.

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

contractor.

Where an infant is a co-contractor, he ought not Infant coto 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 (q). 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.

(g) 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.