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incidental to his situation; and the jury, being of that opinion, found a verdict for the plaintiff. On a motion for a new trial, Lord Kenyon, C. J. said, that the cockades could not be considered as necessaries for the defendant, and ought not to have been included in the damages; but with respect to the livery, he could not say that it was not necessary for a person in the situation of defendant to have a servant (62); and if it was proper for him to have one, it was necessary that the servant should have a livery. The chief justice added, that however inclined he was in general to protect infants against improvident contracts, yet he thought this case fell within the fair liability which the law imposed on infants, of being bound for necessaries, which was a relative term, according to their station in life (63). The rule for a new trial was discharged, the plaintiff's counsel agreeing to strike out the amount of the cockades. A copyhold estate devolved on the defendantTM, when he was an infant of six years of age, whereupon he was admitted (64) and a fine duly assessed. Two years after the defendant (who had continued in possession from the time of his admission) came of age, an indebitatus assumpsit was brought for the fine, which the jury found to be reasonable. A question was made for the opinion of the court, whether this action would lie against the defendant, he being a minor at the time of the fine being assessed. The court were of opinion, that the action would well lie; and Yates, J. said, that if assumpsit had been brought against the infant during his minority, he should have thought it maintainable; that an infant might contract for necessaries, a fortiori, therefore for a fine which was due on admission, without which the infant could not have received the rents and profits. But in this case it was clear beyond doubt, for the defendant had

m Evelyn v. Chichester, 3 Burr. 1717.

(62) See the opinion of Haughton, J. 2 Rol. R. 271. "If an infant is the owner of houses, it is necessary to have them kept in repair, and yet the contract to repair them will not bind the infant; for no contracts are binding on infants, except such as concern their person."

(63) So in Ford v. Fothergill, 1 Esp. N. P. C. 212. Lord Kenyon, C. J. said, that the question of necessaries was a relative fact to be governed by the fortune or circumstances of the infant, and that proof of these circumstances lay on the plaintiff.

(64) In the report of this case in Bull. N. P. p. 154. it is stated that the defendant was admitted on coming of age.

confirmed (65) the contract by his enjoyment of the estate, two years after he came of age. Infancy is a good defence to an action of assumpsit on the warranty of a horse".

Form of Replication.-A replication in a general form, that the articles provided were necessaries suitable to the estate and degree of the defendant," without stating how, or in what manner, they were necessaries, will be sufficient to bar the plea of infancy. It is however essentially necessary, that it should appear on the face of the replication, that they were necessaries for the infant (66); for where in assumpsit against an executor for a farrier's bill, the defendant pleaded that the testator was an infantP, the plaintiff replied, that the demand

n Howlett v. Haswell, 4 Camp. 118. o Huggins v. Wiseman, Carth. 110.

p Clowes v. Brooks, Str. 1101. S. C. by the name of Brooks v. Crowse, Andr. 277.

(65) If goods, not necessaries, are delivered to an infant, who after full age ratifies the contract by a promise to pay, he is bound; per Raymond, C. J. Southerton v. Whitlock, London Sittings, Str. 690. But see Stone v. Withipoll, Cro. Eliz. 126, where it was holden, that the simple contract of an infant, not being for necessaries, was merely void, and, consequently, that a promise by his executor to pay in con

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sequence of forbearance, was nudum pactum. Ashhurst J. speaking upon this point of subsequent promises by infants, in Cockshott v. Bennett, 2 T. R. 766, seems to confine their operations to securities. security given by an infant, which is only voidable, may be revived by a promise after he comes of age. In such case he is bound in equity and conscience to discharge the debt, though the law could not compel him to do so; but he may wave the privilege of infancy which the law gives him for the purpose of securing him against the impositions of designing persons: and if he choose to wave his privilege, the subsequent promise will operate upon the preceding consideration." It is clear, that if a bond be given by an infant during his minority, for the amount of a simple contract debt, not for necessaries, the giving of the specialty will so extinguish the simple contract debt as not to leave a sufficient consideration for an express promise after full age to operate upon, and consequently an assumpsit upon the original cause of action cannot be maintained. Tapper v. Davenant, 3 Keb. 798.

and Bull. N. P. 155.

(66) Necessaries for an infant's wife are necessaries for him; but if provided for the marriage, he is not chargeable, though she uses them. Turner v. Trisby, per Pratt, C. J. London Sittings, E. 5 G. Str. 168. If an infant contract for the nursing of his lawful child, this contract is good and shall not be avoided by infancy, no more than if he had contracted for his own aliment or erudition. Bacon, Max. 18.

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was for looking after the infant's horses, and that the work was necessary for the horses, on demurrer, the court held that the replication was bad; that it should have been a general replication, that the demand was for necessaries for the infant, and the rest should have been left to evidence, where the circumstances of the defendant's health and fortune would be considered: and the court added, that in this case, though the work might be necessary for the horses, yet it did not appear that the horses were necessary for the infant.

On a replication to this effect, viz. that the defendant, after he came of age, confirmed the promise, if the defendant rejoins that he did not, after he came of age, confirm the promise, it is sufficient for the plaintiff to prove the promise, and the defendant must prove infancy if he means to take advantage of it, because it will be presumed, that a person who contracts is of a proper age to contract until the contrary be shewn. Borthwick v. Carruthers, 1 T. R. 649. A replication of a new promise, after the defendant came of age, must be supported by evidence of an express promise; payment of part of the plaintiff's demand is not in this case tantamount to evidence of a new promise to pay the remainder, as it is to take a case out of the statute of limitations. Per Kenyon, C. J. in Thrupp v. Fielder, 2 Esp. N. P. C. p. 628. The promise also must be voluntary, and not extorted from the party under the terror of an arrest. Per Lord Alvanley, C. J. Harmer v. Killing, 5 Esp. N. P. C. 102. And now by stat. 9 G. 4 c. 14 s. 5, (Lord Tenterden's act,) 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.

Contracts entered into by infants for the maintenance of their trade are not binding on them. This rule has been established for the protection of infants against improvident acts, and that they may not incur losses by trading. Assumpsit for goods sold: plea infancy; replication, that the defendant bought the goods pro necessario victu et apparatu et ad manutentionem familiæ suæ: rejoinder, that the defendant kept a mercer's shop, and bought the goods in question to sell again. On demurrer, the court were of opinion, that this buying by the infant, though for the maintenance of his trade, by which

q Whittingham v. Hill, Cro. Jac. 494.

he gained his living, should not bind him (67). So where the plaintiff declared against the defendants being merchants" according to the custom of merchants, upon a bill of exchange drawn by the defendants; one of the defendants (68) pleaded infancy. On demurrer, the plea was holden good, for the infant was a trader, and the bill was drawn in the course of trade, and not for any necessaries. But it was holden, that an infant cannot bind himself even for necessaries by his acceptance of a bill of exchanges. So if an infant is living under the roof of his parent, who provides every thing which in his judgment appears to be proper, the infant cannot bind himself to a stranger, even for such articles as might under other circumstances be deemed necessariest. And in one case", where

r Williams v. W. H. and R. Harrison, Carth. 160.

s Williamson v. Watts, 1 Campb. 552. t Per Gould, J. Bainbridge v. Pickering, 2 Bl. R. 1325. per Bayley, J. Borrinsale v. Grevile, Somerset Sum.

Ass. 1810. MS. Deale v. Leave, C. B. London Sittings after H. T. 51 G. 3. Sir J. Mansfield, C. J. S. P. MS. u Ford v. Fothergill, Peake's N. P. C. 229. 1 Esp. N. P. C. 211 S. C.

(67) So in Whywall v. Champion, Str. 1083, it was ruled by Lee, C. J. that tobaccoes sent to the defendant, who had set up a shop in the country, could not be recovered for as necessaries, the defendant appearing to be an infant; for the law would not suffer him to trade, which might be his undoing. So where in an action for work and labour, to which the defendant pleaded infancy*, it appeared that the plaintiff was a writing painter, and the defendant a painter and glazier, and the work done by the plaintiff was painting and gilding letters for the defendant's customers; Lord Kenyon, C. J. said, the law would not allow an infant to trade, therefore an action could not be maintained against him for work done in the course of it. I am not aware of any decision at variance with the preceding, except an anonymous case in Buller's Nisi Prius, p. 154. where it is stated that Mr. Baron Clarke, in an action before him, where the defendant gave his non-age in evidence, it appearing he had been set up in a farm, and bought the sheep of the plaintiff in the way of farming, directed the jury to give a verdict for the plaintiff, and said he thought the law ought not to put it into the power of infants to impose upon the rest of the world.

(68) Where an action is brought against partners, and one of them pleads infancy, the plaintiff ought not to enter a nolle prosequi as to the infant, and proceed against the others, for if he does he will be nonsuited. The proper method in this case is to discontinue the first action, and proceed de novo against the other partners. Jaffray v. Fairbain and others, 5 Esp. N. P. C. 47. Per Lord Ellenborough, C. J. recognizing Chandler v. Parkes, 3 Esp. N. P. C. 76. per Kenyon, C. J. S. P.

* Dilk v. Keighley, 2 Esp. N. P. C. 480.

an infant during his residence at a coffee-house contracted a debt with a tailor for wearing apparel, Lord Kenyon expressed an opinion that it was the duty of the tradesman to inquire into the situation of the infant, and to learn from the parent whether the infant was in want of the articles ordered, or not, and unless the tradesman could shew that he had made such inquiry, he was not entitled to recover. In an action for goods sold to an infant, the issue being necessaries, if any part of the articles proved to have been furnished to the defendant, may fall within the description of necessaries, the evidence ought to be left to the jury. Infancy is a good bar to an action for money lent, although the infant has expended the money in the purchase of necessaries. In debt upon a single bill, the defendant pleaded his infancy; plaintiff replied, that it was for necessaries, viz. part for clothes and part money lent for necessary support at the university. Rejoinder, that the money was lent defendant to spend at pleasure, traversing that it was lent for necessaries, and issue thereupon was found for plaintiff, who had judgment in C. B. which was reversed on error in B. R.; and Parker, C. J. said, that an infant might buy necessaries, but he could not borrow money to buy, for he might misapply the money, and therefore the law would not trust him but at the peril of the lender, who must lay it out for him, or see it laid out, and then it was his providing, and his laying out so much money in necessaries for him (69). If the action against an infant be grounded on a contract, the plaintiff x Maddox v. Miller, 1 M. and S. 738. y Earle v. Peale, Salk. 386.

(69) In Darby v. Boucher, Salk. 279, a question was made, whether in the case of money lent to an infant, who employs it in paying for necessaries, the infant was liable, and Holt, C. J. was of opinion that he was not; for it was upon the lending that the contract must arise, and after that time there could not be any contract raised to bind the infant, because after that he might waste the money; and the infant's applying it afterwards for necessaries would not by matter ex post facto entitle the plaintiff to an action; for, as was observed by the court in Earle v. Peale, 10 Mod. 67. the law does not recognize any contracts except such as are good or bad at the time when they were made, and their nature cannot be altered by any subsequent contingency. So in Probart v. Knouth, 2 Esp. N. P. C. 472, n. where, to an action for money lent, the defence was infancy; Buller J. would not permit the plaintiff to give in evidence, that the money lent was laid out in the purchase of necessaries. But it is otherwise in equity; for if one lends money to an infant to pay a debt for necessaries, and in consequence thereof the infant does pay the debt, in equity the infant is liable, for there the lender of the money stands in

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