partner in the contract, upon the latter's executing a release, which would at law have no operation.

That his honor considered the action as resting on the contract is evidenced by his suffering the plaintiff to recover full damages, which would have been error if it had been for a mere tort.

Judgment reversed, and a venire de novo.

WANT OF PROPER PLAINTIFFS IN ACTION ON CONTRACT is an exception to the merits, and should be taken advantage of either upon demurrer in bar or on the general issue, but not in abatement: Baker v. Jewell, 4 Am. Dec. 162; Roberts v. McLean, 42 Id. 529, and note 531; but see, holding contrary doctrine, Lurton v. Gilliam, 33 Id. 430; see also further, on non-joinder of parties, and how taken advantage of, Hoffar v. Dement, 46 Id. 628; Campbell v. Wallace, 37 Id. 219, and notes to these cases collecting all prior cases in this series.

IN ACTIONS EX DELICTO, NON-JOINDER OF PARTY PLAINTIFF may be taken advantage of only by plea in abatement: Gilbert v. Dickerson, 22 Am. Dec. 592; Wheelwright v. Depeyster, 3 Id. 345; Simpson v. Seavey, 22 Id. 228, and note 233; Johnson v. Richardson, 63 Id. 369, and note 372.

NON-JOINDER OF CO-DEFENDANT IN ACTION EX CONTRACTU can only be taken advantage of by plea in abatement: Jones v. Pitcher, 24 Am. Dec. 716, note 744.

RELEASE OF WITNESS, WHO APPEARS TO BE REAL PARTY PLAINTIFF, of all interest in the suit, which he delivers to the attorney of the plaintiff of record, is a delivery to himself, and consequently unavailing: Stevenson v. Mudgett, 34 Am. Dec. 155; and more directly in point, see Falls v. Carpenter, 28 Id. 592.

THE PRINCIPAL CASE IS CITED in Crump v. McKay, 8 Jones L. 34, as showing the distinction between actions ex contractu, ex delicto, and tort arising ex contractu, where there is non-joinder of parties plaintiff, and how taken advantage of by defendant; and as to the last-mentioned action, the main case is cited in Ashe v. Gray, 88 N. C. 191, to the point that in such action defendant may take advantage of the non-joinder of plaintiffs on all or any of the grounds afforded him in actions ex contractu for this cause.

FREEMAN v. Bridger.
[4 JONES'S LAW, 1.]

TIMBER SOLD TO INFANT TO BE USED IN BUILDING HOUSE IS NOT NECESSARY for which the infant can be bound.

INFANT CANNOT BIND HIMSELF FOR NECESSARIES WHEN LIVING WITH PARENT OR GUARDIAN, unless it is shown that the parent or guardian was unable or unwilling to furnish him with necessaries.

ASSUMPSIT, begun by attachment, for timber furnished an infant. Verdict and judgment for plaintiff; defendant appealed. The opinion states the facts.

Winston, jun., for the plaintiff.

The defendant was not represented by counsel.

66

he may starve;" or, an infant must live as

By Court, PEARSON, J. An infant is presumed not to have sufficient discretion to enable him to transact business and make contracts. So the general rule is, that the contract of an infant is not binding on him. The exception is, that an infant is bound to pay for goods sold and delivered to him, provided they are necessary for his support. This is put on the ground that unless an infant can get credit for "necessaries" as it is expressed in some of the cases, well as a man; therefore, the law gives a reasonable place to those who furnish him with necessaries ad victum el vestitum, i. e., for victuals and clothes." Lord Coke says: "It is agreed by all the books that an infant may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries:" Co. Lit. 172 a. "These last words embrace boarding; for shelter is as necessary as food and clothing. They have also been extended so as to embrace schooling, and nursing (as well as physic) while sick. In regard to the quality of the clothes and the kind of food, etc., a restriction is added that it must appear that the articles were suitable to the infant's degree and estate. This is familiar learning, but in making the application, it is proper to bear in mind the principle upon which the exception is made. His honor was of opinion that a contract for fifty-five dollars' worth of timber, for the purpose of building a house, made by the defendant while an infant living with his mother, fell within the exception, inasmuch as the timber was used for building a house on the infant's land "suitable to his estate and station in society," and "such as are usually occupied by prudent, economical young men just setting out in life with estates like the defendant's;" it also appearing that he had married, and was living in the house with his wife and child at the time of the trial.

We agree that if an infant marries, the principle of the exception extends to his wife and child. They are to be furnished with necessary food and clothing, for there is no more reason why they should "starve" than the infant himself; but in regard to the timber and the necessity for building a house, we differ from his honor.

The plaintiff's counsel was unable to cite any authority, or even a dictum, in support of his honor's opinion, and it is manifestly against the reason of the thing. If the infant is bound to pay for the timber, he must pay for the nails, glass, etc., the

wages of the work nan; in other words, for the whole house; and if this be so, on the ground that it is necessary for him to have a house to live in, it follows that he must pay for a horse, a wagon, a plow, etc., because such things are necessary to enable him to cultivate his land; then would follow a few cattle and hogs; so the result would be to make the exception broader than the general rule, and take from infants that protection which the law considers they stand in need of by reason of their want of discretion.

There is another fact set forth in the case which makes the decision erroneous, not only in respect to the timber, but in respect to the fourteen dollars' worth of articles admitted to be necessaries, if the defendant's counsel had insisted upon the objection as to them. The defendant, at the time the articles were contracted for, had a guardian.

While an infant lives with a parent he cannot bind himself even for necessaries, unless it be proved that the parent was unable or unwilling to furnish the child with such clothes, etc., as the parent considers necessary, "for no man shall take upon himself to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or of whom: " Bainbridge v. Pickering, 2 W. Black. 1325.

66

Guardians for infants are presumed to furnish all necessaries, and a stranger who furnishes board, or anything else, must, except under peculiar circumstances, take care to contract with the guardian:" State v. Cook, 12 Ired. L. 67; Hussey v. Roundtree, Bush. L. 110; Hyman v. Cain, 3 Jones L. 111; Richardson v. Strong, 13 Ired. L. 106 [55 Am. Dec. 430]; Downey v. Bullock, 7 Ired. Eq. 102. These cases settle the rule that where there is a guardian the replication "for necessaries" does not avoid the plea of "infancy;" because the fact of there being a guardian, whose duty it is to furnish all necessaries for the support of the ward, shows that it was not necessary for the infant to contract. To allow him to do so would defeat the provision which forbids guardians to exceed the income of their wards, and in fact would put the ward beyond the control of his guardian. It is stated in this case that the guardian assumed no control over the defendant. That does not prove that it was not his duty to do so. But if an infant may contract for timber, build houses, and stock his farm with horses, cattle, etc., it is idle to talk about the control of his guardian. The fate of this defendant (for we see from the record that this action was commenced against him

by attachment, as an absconding debtor) proves the wisdom of the law, and the need infants have of its protection.

Venire de novo.

COLLEGE EDUCATION AND HORSE OR HORSES ARE NOT NECESSARIES: Middlebury College v. Chandler, 42 Am. Dec. 537, and cases in note 539; Rainwater v. Durham, 10 Id. 637.

INFANT UNDER CARE OF PARENT OR GUARDIAN able and willing to furnish him actual necessaries can make no binding contract therefor without the parent's or guardian's consent: Kline v. L'Amoreux, 22 Am. Dec. 652, and note 654, unless the guardian refuse to supply the ward with necessaries, and upon such refusal the ward may purchase them, and bind himself therefor: Call v. Ward, 39 Id. 64, note 65.

THE PRINCIPAL CASE IS CITED to the point contained in the first section of syllabus, supra, in Turner v. Gaither, 83 N. C. 362; State v. Howard, SS Id. 652. It is again cited to the point contained in the last subdivision of syllabus, supra, in Fessenden v. Jones, 7 Jones L. 15.

GREEN v. KORNEGAY.

[4 JONES'S LAW, 66.]

IT IS SUFFICIENT DELIVERY OF DEED OF TRUST IF DRAUGHTSMAN INFORMS BARGAINEE of its existence, and he consents to act as trustee under it. DEED OF TRUST NOT INTENDED AS SECURITY FOR MONEY is not void as to creditors and purchasers if not proved and registered within six months from the time of its execution.

SUBSEQUENT PURCHASER OF PERSONAL CHATTEL cannot set aside prior conveyance to another's intestate on the ground of fraud.

CREDITOR CAN TAKE ADVANTAGE OF VOLUNTARY AND FRAUDULENT DEED OF TRUST only by reducing his debt to judgment and seizing the property under execution.

ADMINISTRATORS SUING TO RECOVER PROPERTY OF THEIR INTESTATE MUST BRING ACTION IN HIS NAME, though he was a lunatic at the time that the cause of action accrued.

DETINUE for a slave which plaintiffs claim by virtue of a deed of trust executed by one Roberts to John A. Green, plaintiffs' intestate. The trust expressed in the deed, the consideration of which was one dollar, was for the sole and separate use of the wife of Roberts during her life, and at her death to be reconveyed to him. The subscribing witness swore that he drew, at the request of Roberts, the aforesaid deed, and another by which Roberts conveyed a house and lot to a trustee for the benefit of his wife; that the deed for the slave had never been out of his possession except when being registered; and that it had never been in said Green's possession, but that he made

known the transaction to Green some days after its execution, when Green agreed to act as trustee and authorized witness to act in securing the possession of the slave. Witness demanded the slave of defendant, was refused delivery, and thereupon brought this suit. Witness proved that Green, after the execution of the deed, was insane; that he died in an insane asylum; and that before the bringing of this suit he had occasional attacks of insanity. Kornegay offered in evidence a deed from said Roberts of hire of the slave, which deed was registered within a month from its execution. He also proved that he paid in money the full purchase price of the slave. There was evidence tending to prove that the deed from Roberts to Green was voluntary and fraudulent, and it was proved that Green had never seen the deed which Roberts made to him, and that he had said that he would not act as trustee, and that he would not sue for the slave. The defendant contended for the four points in the following opinion, all of which were decided adversely to him. The jury returned a verdict for plaintiff; judgment accordingly. Defendant appealed.

Bryan, for the plaintiffs.

W. A. Wright, for the defendant.

By Court, BATTLE, J. Neither of the objections urged against the right of the plaintiffs to recover the slave in question is of sufficient force to prevent it.

1. The deed was undoubtedly delivered, if not before, as soon as the draughtsman informed the bargainee of it, and he had consented to act under it as trustee for the feme covert: McLean v. Nelson, 1 Jones L. 396.

2. The second objection has been properly abandoned here. The deed in question was not intended as a security for money, and is not, therefore, one of those deeds in trust which must be proved and registered within six months or be void as to creditors and purchasers.

3. The recent case of Long v. Wright, 3 Jones L. 290, shows that the defendant, as the subsequent purchaser of a personal chattel, could not set aside the prior conveyance to the plaintiffs' intestate. The case of Williford v. Conner, 1 Dev. L. 379, is equally in point to show that as a creditor the defendant could take advantage of the deed to the intestate being voluntary and fraudulent only by reducing his debt to a judgment and seizing the property under an execution.

4. The action was properly brought in the name of John A.