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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. Picker

ing, 2 BI. 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 cannot convert it into a tort, so as to charge the infant. “If one deliver goods to an infant on a contract?, knowing him to be an infant, the infant shall not be charged for them in trover and conversion; for the law will not permit a plaintiff, by changing the form of action, to vary the liability of the infant.” Hence, whatever be the form of the action which is commenced, if the act done by the infant is the foundation of an assumpsit, the plea of infancy will be a good bar: as where an infant hired a mare of the plaintiff to go a journey, in the course of which the mare was straineda. The plaintiff having declared against the infant for this injury in tort, he pleaded infancy, which on demurrer was holden a good plea ; and Lord Kenyon, C. J. said, that if it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to infants. Lord Mansfield, indeed, frequently said, that this protection was to be used as a shield and not as a sword; therefore, if an infant commit slander, God forbid that he should not be answerable for it in a court of justice. But where an infant has made an improvident contract with a person, who has been wicked enough to contract with him, such person cannot resort to a court of law to enforce such contract; and the words “wrongfully, injuriously, and maliciously,” introduced into the declaration, cannot vary this case (70). A single bill given b by an infant for the amount of necessaries is binding on him, but a bond in double the amount is not. So an account stated of monies due for necessaries will not lie against an infant", the law not giving an infant credit for accurate computation, nor can he agree to any such account. A warrant of attorney given by an infant is absolutely voide, and the court will not confirm it, though

2 1 Sid. 129. Manby v. Scott.
a Jennings v. Rundall, 8 T. R. 335.
b Russell v. Lee, 1 Lev. 86, 87.
c Ayliff v. Archdale, Cro. Eliz. 920.

See also 1 Inst. 172 a.

d 2 Roll. Rep. 271. and Trueman v.

Hurst, I T.R. 40. See also Ingledew

v. Douglas, 2 Stark. N. P. C.36. e Saunderson v. Marr, 1 H. Bl. 75.

the place of the person paid, viz. the creditor for necessaries, and shall recover in equity as the other should have done at law. Per Cur. Marlow v. Pitfield, 1 P. Wms. 558. The same rule of equity holds with respect to money lent to a feme covert, and afterwards applied to her use for necessaries. See post, tit. Baron and Feme, s. 4.

(70) As in the cases of contract where the law has protected the infant againt his liability, he cannot be prejudiced by the form of action in which he is sued; so in cases ex delicto, where he is responsible, he cannot derive any advantage from it. In Bristow v. Eustman, 1 Esp. N. P. C. 172. Kenyon, C. J. was of opinion, that money had and

the infant appear to have given it (knowing that it was not valid) for the purpose of collusion; for such acts of an infant as are only voidable are allowed in equity to be confirmed, but not such as are actually void. An infant cannot be bound by a submission to arbitrationf.

4. Payment ; and herein of Payment of Money into Court.

Payment.—To an action of assumpsit the defendant may plead matter of discharge ex post facto, as payment before action brought. Part-payments to plaintiff, although not pleaded, may be given in evidence in reduction of damages. À person who is indebted to another on several accounts, may, at the time of payment, apply the money to whichever account he thinks proper; and his election so to do may either be expressed, or may be inferred from the circumstances of the transactionh; but if the party paying does not make such election, the receiver may apply it as he pleasesi (71).

A creditor receiving money, without any specific appropriation by the debtor, will be permitted in a court of law to ascribe the receipt to the discharge of a prior and purely equitable debtk, and sue him at law for a subsequent legal

f Anon. B. R. Hil. 55 Geo. 3.

Andr. 55, Goddard v. Cox. Str. 1194. g Shirley v. Jacob, 2. Bingh. N. C. 88. See 2 Vern. 607. S. P. per Ld. Cowp. h Newmarch, v. Clay, 14 East, 239, Ch. and Peters v. Anderson, 5 Taunt.

Agreed per cur. Peters v. Anderson, 5 596. Hall v. Wood and Wife, before Taunt. 596. Shaw v. Picton, 4. B. Lord Mansfield, C. J. Middlesex Sitand C. 715.

tings, Hil. 1785, S. P. 14 East, 243. n. i Bowes v. Lucas, B. R. M. 11 G. 2. k Bosanquet v. Wray, 6 Taunt. 597.

received would lie against the defendant, to recover money which he had embezzled, notwithstanding the infancy of the defendant, on the ground that infants were liable to actions ex delicto, though not er contractu ; and though the action for money had and received was in form an action ex contractu, yet in this case it was in substance an action ex delicto; that if trover had been brought for the property embezzled, infancy would not have been a defence : and as the object of the action for money had and received was the same, he thought the same rule of law ought to apply, and therefore that infancy ought not to be a bar.

(71) The defendant owed money on two bonds, and paid money on account, but gave no directions to which he would have it applied; and upon a case reserved, it was determined, that the plaintiff had the election. Bloss v. Cutting, cited in 2 Str. 1194.

m

debt. But where one demand arises out of a lawful contract, and another out of an unlawful contract, the lawl will appropriate a payment not specifically appropriated to the lawful contract. A party, however, to whom two sums are due, the one for spirituous liquors supplied in quantities not amounting to 20s. at a time, the other for meat, &c., may apply payments made generally to the account for spirituous liquors.

“ It seems most consistent with reason, that where payments are made upon one entire account, such payments should be considered in discharge of the earlier items.” Per Bayley, J. Bodenham v. Purchas, 2 B. and A. 45. “In the case of a banking-account, there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into account. Presumably it is the first sum paid in that is first drawn out. It is the first item on the debit side of the account, which is discharged by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other.” Per Sir W. Grant, M. R. Clayton's case, 1 Mer. 572. See further on this subject Devaynes v. Noble, i Mer. 608; Pease v. Hirst, 10 B. & C. 122; and Taylor v. Kymer, 3 B. & Ad. 333, where the Court thought the rule laid down in Devaynes v. Noble did not apply. See Tomlinson v. Copland, 2 Clarke & Finelly, App. Cas. 681.

Security having been given by a surety for goods to be supplied to his principal, and not in respect of a previously existing debt, goods were subsequently supplied, and payments were from time to time made by the principal, in respect of some of which discount was allowed for prompt payment, it was holden that it was to be inferred in favour of the surety that all these payments were intended in liquidation of the latter account".

The mere production of a bill of exchange from the custody of the accepter is not presumptive evidence of payment, unless it be shewn that the bill was once in circulation after being acceptedo. Nor is payment to be presumed from a receipt indorsed on the bill, unless it can be shewn that the receipt is in the handwriting of a person entitled to demand paymentP. Where defendant being indebted to plaintiffs for goods sold, and C. being indebted to defendant, plaintiffs, with consent of defendant, drew a bill on C. payable at two | Wright v. Laing, 3 B. & C. 165. n Marryatts v. Wbite, 2 Stark. N. P. m Cruickshanks v. Rose, 1 Moody & C. 101. Lord Ellenborough, C. J.

1

Rob. 100. Philpott v. 'Jones, 2 Ad. o Pfiel v. Vanbatenburg, 2 Campb. & Ell. 41. S. P.

PS. C.

439.

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