tainable for the recovery of money lent and advanced to an infant if the infancy is pleaded in bar of the action, although the money has been borrowed by the infant to be expended in the purchase of the necessaries of life, as the infant may misapply the money, and the law will not trust him. () Neither can an action be maintained against an infant on an account stated, as the law presumes that he has not sufficient capacity for business to state and settle accounts, so as to be bound thereby. (i) All contracts also entered into by infants in the exercise of a trade may be avoided by them, for the law does not consider it to be necessary or beneficial for infants to embark in trade and hazard their fortunes in commercial speculations Trading is not immediately necessary ad victum et vestitum, and if it were allowed, infants might be infinitely prejudiced." An action, consequently, cannot be maintained against an infant who carries on trade for work done for him, or goods or mercandize sold, or for the rent of houses and buildings hired by him, in the course of that trade, although he gains his living thereby; (j) nor upon a bill of exchange drawn, accepted, or indorsed by an infant in carrying on trade. (k) INFANTS living under the PARENTAL ROOF cannot in general be made responsible for the payment of the price of clothes and wearing apparel ordered by them and delivered at the residence of the parent. "If an infant lives with his parent, who provides such apparel as appears to the parent to be proper, so that the child is not left destitute of clothes or other real necessaries of life, the child cannot bind himself to a stranger even for what might otherwise be allowed as necessaries; for no man shall take upon him to dictate to a parent what clothing the child shall wear, at what time they shall be purchased, or for whom. All that must be left to the discretion of the father and mother." (1) If, therefore, a child, living at home with its father, orders clothes of a tailor, and the clothes are sent to the father's residence, and the latter disapproves of the proceeding as soon as he is made acquainted with it, and sends the clothes back, the tailor will have no claim against anybody for the payment of the price of them. He cannot sue the parent, because he has (h) Earle v. Peale, 1 Salk. 387; 10 Mod. 67, S. C. Darby v. Boucher, ib. 279. Probart v. Knouth, 2 Esp. 472, n. Smith v. Gibson, Peake, 863. As to money paid for the use of an infant, see post, 863. (i) Trueman v. Hurst, 1 T. R. 42. Ingledew v. Douglas, 2 Stark. 36. Oliver v. Woodruffe, 4 M. & W. 650. As to subsequent ratification by adults of accounts stated during infancy, see post, 870. () Dilk v. Keighley, 2 Esp. 480. Whittingham v. Hill, Cro. Jac. 494. Whywall v. Champion, 2 Str. 1083. Lowe v. Griffith, 1 Sc. 458; 1 Hodg. 30. (k) Williams v. Harrison, Carth. 160. Williamson v. Watts, 1 Campb. 551. (1) Bainbridge v. Pickering, 2 W. Bl. 1325. Cook v. Deaton, 3 C. & P. 114. Story v. Perry, 4 C. & P. 526. not sanctioned or authorized the contract; (m) neither can he sue the infant, for as the latter was provided for in the father's house, he was under no necessity of contracting for the purchase of goods on his own credit. If the tradesman suffers in such a transaction, it is his own fault; for he ought to have made inquiries of the parent, and have ascertained whether the contract was sanctioned and authorized by the latter. If, indeed, he can show that the parent was aware of the order given by the infant, and of the delivery of the goods at his residence, or that he saw the infant using and wearing the articles, and made no objection thereto, and no exercise of his parental authority and control to prevent further supplies of such articles, this will be strong evidence to show that the father authorized the order to be given, so as to render him responsible as the principal in the transaction and the real purchaser of the articles through the medium of his child acting as his agent in that behalf. (n) If an infant is placed at a boarding-school by a parent or guardian, the master has not in general any remedy against the infant, but must resort to those with whom he agreed for the infant's board and instruction. (0) And a plaintiff cannot convert a breach of duty arising out of a contract into a tort, so as to charge the infant in an action ex delicto with the damage resulting from such breach of duty. Therefore, if a horse lent to an infant is immoderately ridden by the latter and is injured, the infant is protected from liability by his infancy. (p) As an infant cannot lawfully be a trader, he cannot be made a bankrupt under the bankruptcy acts. (q) CONTRACTS that may be entered into by INFANTS.-But infants are not rendered absolutely incapable of contracting, for "the law at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts for their own benefit." (r) They may grant leases when it is manifestly to their interest and advantage that such leases should be granted, and will not be per (m) Blackburn v. Mackey, 1 C. & P. 1. Burrough, J., Fluck v. Tollemache, ib. 5. Crantz v. Gill, 2 Esp. 472. Roffe v. Abbott, 6 C. & P. 286. Clements v. Williams, 8 C. & P. 58. (n) Baker v. Keen, 2 Stark. 502. Nichole v. Allen, 3 C. & P. 36. Hesketh v. Gowing, 5 Esp. 132. Law v. Wilkins, 6 Ad. & E. 718; 1 N. & P. 697, s. c. As to the liability of the father for things furnished to his children by order of the mother, or of his own servants, see Rawlyns v. Vandyke, 3 Esp. 252. Cooper v. Phillips, 4 C. & P. 581. Furillio v. Cros ther, 7 D. & R. 612. Stone v. Carr, 3 Esp. 1; ante, 398-401, 613. (0) Duncomb v. Tickridge, Alleyn, 94; Bac. Abr. Inf. (I.) 1. (p) Jennings v. Rundall, 8 T. R. 335. (q) Belton v. Hodges, 2 M. & Sc. 496; 9 Bing. 365, s. c. Ex parte Moule, 4 Ves, 613. (r) Lord Mansfield, Zouch v. Parsons, 3 Burr. 1801. mitted to avoid them when they come of age. (s) "The privilege given by law to infants is given as a shield, not as a SWORD, and shall never be turned into an offensive weapon of fraud and injustice." () Therefore, if an infant contract for necessary repairs to be done to his dwelling-house, or to any description of property belonging to him, he will not be allowed to avail himself of his infancy as an answer to a fair claim for the payment of the price of the work so done. In Tirrell's case, indeed, Haughton, J. is reported to have said, that “if an infant's house stands in need of repairs, his contract for the repair of it does not bind him, for no contract binds an infant but such as concerns his person."(u) But this doctrine cannot be considered to be law at the present day. By the custom of gavelkind, an infant at the age of fifteen is reckoned at full age to sell his lands, but under great limitations and restrictions, to prevent him from being defrauded. And by custom in some places, an infant seised of lands in socage may at the age of fifteen years make a lease for years, which shall bind him after he comes of age, for the custom makes fifteen his full age to that purpose. (x) LIABILITIES of INFANTS who are not residing under the PARENTAL ROOF. If the infant is an orphan, or is residing at a distance from the parents, and is not provided with the necessaries of life under their personal superintendence, management, and control, such infant is clothed with the power of entering into fair and just and reasonable contracts for supplying himself with the necessaries of life. "An infant may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries, and likewise for his good teaching and instruction, whereby he may profit himself afterwards; and this is in benignity to infants, for if they were not allowed to bind themselves for necessaries, no person would trust them, in which case they would be in worse circumstances than persons of full age. (y) It has accordingly been said, that an infant may enter into a contract under seal, and give a simple bond, or bond without a penalty, "for his necessary meat and drink, or his necessary apparel, or his fit schooling, and shall not avoid the same." (z) It is not, however, in any (s) Maddon v. White, 2 T. R. 161. (t) Ld Mansfield, Zouch v. Parsons, 3 Burr. 1801. Smith v. Low, 1 Atk. 489. Ashfield v. Ashfield, Sir Wm. Jones, 157. Baylis v. Dineley, 3 M. & S. 480. (u) Tirrell's case, 2 Rolle, 271; Anon. 1 Salk. 196. (x) Bae. Abr. INF. (A.) Co. Litt. 45, b. (y) Co. Litt. 172, a. Bac. Abr. INFANTS (I.) Lord Mansfield, Zouch v. Parsons, 3 Burr. 1802. Pickering v. Gunning, Win. Jones, 182. (2) Perkins, s. 14. Russell v. Lee, 1 Lev. 86. way necessary for an infant to bind himself by deed for the payment of the price of the necessaries of life furnished to him by third parties, and such contracts would at the present day be regarded with great jealousy and suspicion by the courts. The infant cannot bind himself to the payment of any particular sum for necessaries, or to give any particular price for them. The law permits those who minister to his necessities to receive only a reasonable price, and does not leave the determination of the amount to the infant, but entrusts it to the arbitrament of a jury. (a) In the case of simple contracts for necessaries, it must be shown "that the things were actually neces sary, and of reasonable prices, and suitable to the infant's degree and estate, which regularly must be left to the jury. . . . . If an infant promises another that if he will find him meat, drink, and washing, and pay for his schooling, he will pay £7 yearly, the infant is liable to an action for a breach of this promise, for learning is as necessary as any other things; and though it is not mentioned what learning this was, yet it shall be intended what was fit for him till it be shown to the contrary; and though he to whom the promise was made does not instruct him, but pays another for it, the promise of repayment thereof is good." (b) An infant may be made liable for the rent of the house or the apartments he lives in, provided the rent is reasonable, and the lodging fit and proper for a person in his station in life, (c) and the house or apartments and premises have been hired by him to dwell in, and not for the purpose of enabling him to carry on trade; (d) also for clothes and lace, silks, and wedding garments furnished to him, such clothes and dresses being suitable for the use of a person of his rank and station in life; (e) also for food, clothing, nursing, attendance, and necessaries furnished to his wife and family and infant children residing with him. (f) We have already seen, that if an infant embarks in trade, an action is not maintainable against him upon contracts entered into by him in the course of that trade; and that he is not responsible for the payment of the price of goods and merchandize sold to him, to be used and dealt with by him in the way of his trade (ante, p. 859). But for all the ordinary necessaries of life, food and clothing, groceries, and necessary articles of furniture supplied to him, to be used or consumed in his own household, (a) Cas. Law and Eq. 185. (b) Bac Abr. INF. (I.) 1. (c) Kirton v. Eliott, 2 Bulstr. 69. Evelyn v. Chichester, 3 Burr 1719. (d) Lowe v. Griffith, 1 Sc. 458. Ante, 859. (e) Rainsford v. Fenwick, Cart. 215. Dalton v. Gib, 5 Bing. N. C. 198. Brayshaw v. Eaton, ib. 234. (f) Bacon's Maxim, R. 18, p. 67, ed. 1639. Turner v. Trisby, 1 Str. 168. Alderson, B., Chapple v. Cooper, 13 M. & W. 259. and not to be sold again, or otherwise dealt with in the way of his trade, he will be responsible. (g) We have seen also, that an infant cannot borrow money so as to render himself liable to an action for money lent, although the money may be expended by him in the purchase of necessaries; (h) but if the money of a third party is laid out in the purchase of necessaries for the infant, under the personal superintendence and direction of such third party, it may then be recovered from the infant in an action for money paid. (i) LIABILITY of an INFANT WIDOWER or WIDOW for the expenses of the funeral of a DECEASED WIFE or HUSBAND.-If an infant widower gives directions for the funeral of a deceased wife, he is personally responsible for the expenses thereof; and the same liability arises in the case of an infant widow, who has given an order to an undertaker for the burial of a deceased husband, although the latter may have died in insolvent circum stances. In an action brought against an infant widow for the expenses of the funeral of her late husband, who had been buried by her orders, it was contended that the contract was not a contract for her benefit, and that the things furnished were not necessaries for which an infant could be made responsible; but the court was of a different opinion. "The law," observes Alderson, B., "permits an infant to make a valid contract of marriage, and all necessaries furnished to those with whom he becomes. one person by or through the contract of marriage, are in point of law necessaries to the infant himself. Now there are many authorities which lay it down that decent christian burial is part of a man's own rights, and we think it is no great extension of the rule to say, that it may be classed as a personal advantage, and reasonably necessary to him. His property, if he leaves any, is liable to be appropriated by his administrator to the performance of this proper ceremonial. If, then, this be so, the decent. christian burial of his wife and lawful children, who are the persona conjuncte with him, is also a personal advantage, and reasonably necessary to him, and then the rule of law applies that he may make a binding contract for it. This seems to us to be a proper and legitimate consequence from the proposition that the law allows an infant to make a valid contract of marriage. If this be correct, then an infant husband or parent may contract for the burial of his wife or lawful children; and then the question arises whether an infant widow is in a similar situation. It may be (g) Tuberville v. Whitehouse, 1 C. & P. 94. 344, s. c. Harris v. Lee, 1 P. Wms. 482, 558. Clarke v. Leslie, 5 Esp. 28. Hedgley v. Holt, 4 C. & P. 104. Ante, 226-231. K K K |