Istly. What are Necessaries.-Such necessary things as relate immediately to the person of an infant; as his meat, drink, apparel, lodgings, and medicine, at fair and reasonable prices, and with due regard to the degree and estate of the infant, are clearly necessaries for which he is liable (7). And he may contract for them on credit, although he be provided with ready money funds (m).

"An infant may bind himself to pay for his good teaching or instruction, whereby he may profit himself afterwards (n)." And it was said by three justices, in Manby v. Scott (0), that he may contract to pay so much for instructing him in reading and writing; and in Pickering v. Gunning (p) it appears to have been decided that a promise by a child of fourteen years of age, to pay a reasonable sum for board, lodging, and schooling, was binding on him. We shall presently have occasion to observe that where the infant is placed at school by his parent, credit is impliedly given to the latter only (q).

In assumpsit against husband and wife, for money paid to the use of the wife before her coverture, it appeared that the plaintiff and the wife of the defendant were brother and sister, and each had a sum of 3007. as a fortune. In the year 1792, the sister being then under age, the plaintiff paid a sum of 401. to a third person, as a premium for taking the sister as an apprentice to learn millinery; and a letter was read from the sister to the plaintiff, wherein she expressed her gratitude to him for this mark of his kindness, and hoped it would be in her power to pay him soon. But she was under age when this letter was written, and no subsequent promise was proved. "Lord Kenyon declared himself clearly of opinion that this sum of money could not be considered as necessaries, and therefore that the payment of it could not be enforced in a court of law; where a man does an act of generosity for an infant, he relies wholly on the generosity of the infant to make a suitable return. The infant ought to make a due return, but it is a duty of imperfect, not of legal obligation (r)."

No action is maintainable against an infant on his covenant to serve, in an indenture of apprenticeship. This point was decided in Gilbert v. Fletcher (r), where it was laid down by the court that neither at common law nor by the statute 5 Eliz., is any covenant or obligation of an infant for his apprenticeship binding upon him. If he misbehave himself (said the court), the master may correct him in his service, or complain to a justice of the peace to have him punished according to the statute; but no remedy lies against an infant upon such covenant; and therefore it was adjudged for the defendant. It is said that by the custom of London an infant may bind himself in an indenture of apprenticeship, so as to be subject to an action against him, even in the courts at Westminster (s).

The term "necessaries" is not to be strictly confined to such matters as are positively essential to the infant's personal subsistence or support; but is a relative expression, to be construed with reference to his actual rank, fortune, and age (t). Therefore a livery for the servant of an infant, who was a captain in the army, were held to be necessaries for which he was liable; but he was considered not to be responsible for cockades ordered for some of the soldiers of his company (u). And it seems that he may be charged for regimentals sold to him as a member of a volunteer corps ; Lord Ellenborough saying, that in those perilous times, when young men had inrolled themselves in different corps, for the defence of the country, he should hold that clothes so furnished were necessaries (x). And horses may be and are necessaries, so as to subject an infant to liability for the price or hire thereof, if they be suitable to his fortune and rank in life; or are purchased and used by him for the benefit of his health under the advice of a medical man (y); and if so, he is also liable for any necessary work with regard to such horses; but then it ought to be shown in the replication to a plea of infancy, in such

Cases, 52. It is not clear upon what precise ground this case was decided. It appears to have been a gratuitous payment in the first instance; and semble, that there was no distinct and absolute promise of repayment; see post.

(r) Cro. Car. 179. See Rex v. Inhabitants of Cromesby, 3 B. & Ald. 584; Rex v. Inhabitants of Arundel, 5 M. & Selw. 257; Rer v. Inhabitants of Queenborough, 2 B. & Ad. 219.

(s) Stanton's Case, Moore's Reports,

135. See Eden's Case, 2 M. & Selw. 226, 229.

(1) Bac. Ab., Infancy (I); 3 Com. Dig. Enfant (B 5). See Rainsford v. Fenwick, Carter R. 215; Ive v. Chester, Cro. Jac. 560; 2 Rol. R. 144; per Lord Kenyon, Hands v. Slaney, 8 T. R. 578; per Vaughan, J., in Peters v. Flemyng, Norfolk Summer Assizes,

1839.

(u) Hands v. Slaney, 8 T. R. 578. (r) Coats v. Wilson, 5 Esp. R. 152. (y) Hart v. Prater, 1 Jurist, 623.

case, that the horses, as well as the work, were necessaries (y). So jewellery may be necessaries if suitable to the rank and condition of the infant (2). It seems also, that an infant cannot avoid a lease granted by him, and which is for his benefit (a); and that he is liable, on arriving at full age, for a reasonable fine, assessed during infancy, in respect of a copyhold estate which has descended to him (b), and which he enjoyed during his nonage, and afterwards. And acts of necessity shall bind him; as presentations to benefices, admittances to and grants of copyholds (c). It has also been held that an action of debt lies against an infant, for a reasonable rent reserved upon a lease to him of a house which he has occupied (d). So lodgings are necessary for an infant, and render him liable for the rent of them (e).

"Necessaries for an infant's wife are necessaries for him; but if provided in order for the marriage, he is not chargeable, though she use them (f)." He is also liable for necessaries supplied to his lawful children, upon his express or implied credit (g).

A person who pays for an infant, and at his request, a debt which the latter had contracted for necessaries, stands, even at law, in the situation of the original creditor, and may sue the minor for money paid (h). It would seem he is liable for money paid to release him from custody in execution, without showing that the original debt was for necessaries: aliter if he were in custody only on mesne process, when the party paid the debt for him (i). And where an action was brought to recover a sum of money, paid to liberate an infant from arrest in Scotland, it was held necessary for the defendant, in order to establish a plea of infancy, to show that the facts would have afforded a defence

(y) Clowes v. Brooke, 2 Stra. 1101. (z) Peters v. Flemyng, per Vaughan, J., Norfolk Summer Assizes, 1839.

(a) Maddon v. White, 2 T. R. 161; Zouch v. Parsons, 3 Burr. 1806.

(b) Evelyn v. Chichester, 3 Burr. 1717; Bull. N. P. 154.

(c) 3 Salk. 196; Zouch v. Parsons, 3 Burr. 1801, per Mansfield, C. J.

(d) Kirton v. Eliott, 2 Bulstr. 69; cited by Yates, J., in Evelyn v. Chichester, 3 Burr. 1719. In Rol. Ab. 731, tit. Infants, pl. 45, the same case is mentioned by the name of Kettel v. Eliot, as only deciding that, if the party continue to occupy on attaining his full age, he is liable for airears which accrued during his minority. It would seem, at the present day, that an infant cannot be sued on his cove

nant in a lease to pay a fixed rent, although he would be liable in assumpsit to pay a reasonable rent for premises necessary for him, and suitable to his station and fortune; Lowe v. Griffiths, 1 Scott, 458; 1 Hodges, 30.

(e) Crisp v. Churchill, cited in Lloyd v. Johnson, 1 B. & P. 561.

(f) Turner v. Trisby, at Guildhall; per Pratt, C. J., Rainsford v. Fenwick, Carter, R. 215.

(g) Bac. Max. p. 26, ed. 1741; 1 Fonbl. Tr. Eq. 73, 5th ed.

(h) Marlow v. Pitfield, 1 P. Wms. 558; Ellis v. Ellis, 5 Mod. 368; Earle v. Peale, 10 Mod. 67; Ellis v. Ellis, 12 id. 197.

(i) Clarke v. Leslie, 5 Esp. R. 23. See Finlie v. Jowle, 13 East, 6.

by the law of Scotland; in which country the cause of action accrued (i).

It seems that an infant is bound by the conduct of his solicitor in a cause (k); and that a feme infant may sometimes be bound by a marriage contract, properly settling her property, and deliberately and fairly entered into, with the consent of her friends and relations (); she may at least be so as to her chattel property, for this merely amounts to a waiver by her husband of his marital rights.

It is enacted by the Friendly Society Act, 10 Geo. 4, c. 56, s. 32, "that a minor may become a member of any such society; and may execute all instruments, give all necessary acquittances, and enjoy all the privileges, and be liable to all the responsibilities appertaining to members of matured age, notwithstanding his or her incapacity or disability in law to act for himself or herself: provided always that such minor be admitted into such society by and with the consent of his or her parents, masters, or guardians."

2ndly. What are not Necessaries.-From what has just been observed, it will be readily perceived what are not necessaries. The law regards the real rank and actual state of the circumstances of the infant, and trusts not merely to the appearance he assumes in society. Many articles which may, at first sight, appear to be necessary for an infant, are not so in reality; and in that case the infant is not responsible. So goods may be necessaries in point of quality, but not in point of quantity. Therefore, when an infant is already provided with sufficient necessaries by his father, or has been supplied by other tradesmen than the plaintiff, and consequently was under no necessity to purchase that for which he is sued, he is not liable, although the plaintiff was not at the time aware of the fact; and it is not material that the infant has not paid for those necessaries with which he was already supplied, or even that he has successfully defended actions brought against him for the price of them (m). It is the

(i) Male v. Roberts, 3 Esp. R. 163. An executor may pay an infant a legacy for the purpose of necessaries, 1 Fonbl. Tr. Eq. 74.

(k) Tillotson v. Hargrave, 3 Madox, 495. By decree in a court of equity, Wall v. Bushby, 1 Bro. C. C. 484; 2 Ball & B. 213.

(1) Ainslie v. Medlycott, 9 Ves. 14; Milner v. Lord Harewood, 18 id. 259; 1 Powell on Contracts, 41, 51, 53; 1 Fonbl. Tr. Eq. 5th ed. 74, note. See Comyn on Contracts, 622.

(m) Burghart v. Angerstein, 6 C. & P. 690; 1 M. & Rob. 458, S. C.; Charters v. Baynton, 7 C. & P. 52.

moral, though not the legal (m), duty of a tradesman, by inquiry, to ascertain the real occasion which the infant has for the goods he is about to purchase, although they are goods, which, generally speaking, fall within the description of necessaries (n). Thus, if a minor has been supplied with ten coats by one tradesman, and immediately after that the plaintiff supply him with another, the plaintiff is not entitled to be paid for such other coat, as it was not necessary (o). Nor is an infant liable for his schooling, if he were placed at the school by his parent or guardian (p). In such case, although the education may be necessaries for which an infant might otherwise be liable, yet it shall be implied that credit was given to the parent or guardian only (q). But it seems that a father is not under a legal obligation to educate his child; and could not be made liable, if the circumstances absolutely negatived his assent to the contract with the party instructing the infant (r).

There appears, indeed, to be no responsibility on the part of a father even for necessary goods supplied to his son, unless there be some proof of a contract express or implied; and that there must be a prior authority, or a subsequent recognition of the claim (s). The usual evidence is, that the son lived under the father's roof; and that the goods were necessaries, and were delivered at the residence of the latter; or that the father saw the son wearing the clothes (t): and this proof is primâ facie

sufficient.

So in an action against a parent for the price of regimentals furnished to his son, Abbott, C. J., left it to the jury to consider whether they could infer that the order was given by the assent

(m) Dalton v. Gib, 5 N. C. 198; Brayshaw v. Eaton, id. 231.

(n) Charters v. Baynton, 7 C. & P. 52, 55; Burghart v. Angerstein, 6 C. & P. 690; 1 M. & R. 458, S. C; Bainbridge v. Pickering, 2 Bla. R. 1325; Ford v. Fothergill, 1 Esp. R. 211; Peake R. 229, S. C.; Cook v. Deaton, 3 C. & P. 114,; Story v. Pery, 4 id. 526; Mortara v. Hall, 6

Sim. 465.

(0) Burghardt v. Angerstein, 6 C. & P. 690.

(p) Ante, 142.

R. 94; 3 Bac. Ab. 595, Marg. Gwillim's ed.

(r) Hodges v. Hodges, Peake, Addl. Cases, 79.

(s) Rolfe v. Abbott, 6 C. & P. 286; Urmston v. Newcomen, 4 A. & E. 899; Clements v. Williams, 8 C. & P. 58; Blackburn v. Mackay, 1 C. & P. 1, cor. Abbott, C. J.; Fluck v. Tollemache, id. 5, cor. Burrough, J. See Wilkins v. Wells, 3 id. 231, and see Turquard v. Dawson, 1 C., M. & R. 710, note.

(t) Law v. Wilkins, 1 Nev. & P. (9) Duncomb v. Tickridge, Aleyn, 697; 6 A. & E. 718.