said that she is not, because during the coverture she is incapable of contracting, and after the death of the husband the relation of marriage has ceased. But we think this is not so. In the case of the husband, the contract will be made after the death of the wife or child, and so after the relation which gives validity to the contract is at an end to some purposes. But if the husband can contract for this, it is because a contract for the burial of those who are personæ conjunctæ with him by reason of the marriage, is a contract for his own personal benefit; and if this be so, we do not see why the contract for the burial of the husband should not be the same as a contract by the widow for her own personal benefit. It may be observed, that as the ground of our decision arises out of the infant's previous contract of marriage, it will not follow from it that an infant child or more distant relation would be responsible upon a contract for the burial of his parent or relative. (k)

CONTRACTS for NECESSARIES-Things held NOT to be NECESSARIES.— The question as to what things are and what things are not necessaries suitable for an infant who is living away from the parental roof and sup plies his own wants from funds of which he has himself the management, is a mixed question of law and fact, to be determined by the particular circumstances of each case. There are, however, many things which cannot be necessary for the use of an infant under any circumstances, and respecting which no valid contract can be entered into. Race-horses, for example, are not necessaries; nor racing jackets, nor diamonds, nor jellies, confectionery, and sweetmeats, nor extravantly luxurious dinners, choice wines, and rare fruits, nor costly equipages and horses, and an action cannot, consequently, be maintained against an adult for the price of such things furnished to him during his infancy. "This rule imposes no hardship upon tradesmen; if they do not intend to pander to extravagance, let them not give credit." () If, indeed, horses or carriages, diamonds or jewels, or costly articles of any description, have been delivered to an infant pursuant to an intended contract of sale, and the latter has them in his possession at the time of his coming of age, and has not paid, and will not pay the price of them, the intended vendor may demand them back, and if they are not returned, (the adult having them at the time in his possession and under his control,) the vendor would be entitled to recover the value of them in an action of trover. If the infant, after he has attained his majority, keeps the things, and at the same time repudiates the contract of sale and refuses

(k) Chapple v. Cooper, 13 M. & W. 259,

260.

(1) Brooker v. Scott, 11 M. & W. 67. Whar

ton v. Mackenzie, Cripps v. Hill, 5 Ad. & E N. S. 606, 614. Burghart v. Angerstein, 6 C. & P. 698. Charters v. Bayntun, 7 ib. 52.

to pay the price of them, the right of property revests in the vendor, (the contract being at an end,) and the quondam infant cannot lawfully detain them after their return has been demanded by the true owner, for the privilege of infancy is, as we have before seen, to be used as a shield, and not as a sword;—as a defence against the demands of unconscientious and rapacious creditors,-and not as an offensive weapon of fraud. “If a young man perceives that he has been practised or imposed upon, he may honestly avail himself of the privilege of his non-age to defeat the circumvention; but if he shelters himself under this privilege to avoid a fair obligation, he extends the privilege to a case in which it is not allowed in intention of law, and in which, consequently, it does not in natural justice exist." (m) It is possible, also, that if jewels and race-horses, and things that are not necessaries, have been delivered to an infant during his infancy, and the latter has them in his possession, and keeps and uses them after he comes of age, and refuses to return them after demand, the law would raise an implied promise from him to pay the fair value of them, as in the case of a drunkard, to whom goods are furnished whilst he is in a state of complete intoxication, and who is liable for the price of them if he keeps them and refuses to return them when he becomes sober.(n)

Riding in gigs and upon horseback has been held not to be necessary for an infant, and where an Oxford jury, in an action brought by a liverystable keeper against a student at the University for the hire of horses and gigs supplied by him to the latter, found that the gigs and horses were necessary and suitable for a student at the University, and gave a verdict for the plaintiff contrary to the opinion of the judge, the court granted a new trial without payment of costs. (o) But if the infant be an invalid, and horse or carriage exercise is recommended by a medical man, and is resorted to by the infant for the restoration of his health, then it will be considered necessary, and the infant will be bound to pay for it.(p)

Things which may or may not be NECESSARIES according to the CIRCUMSTANCES and CONDITION IN LIFE of the INFANT.-There are certain classes of things, as we have already seen, absolutely necessary to all manner of men, such as food, clothing, lodging, and education, but the description of the food, clothing, and lodging, and the character and extent of the education, will vary according to the varying circumstances and condition in life of different individuals. "The infant's clothes may be fine or coarse according to his rank; his education may vary according to the sta

(m) Paley's Moral Philosophy.

(2) Alderson B., Gore v. Gibson, 14 Law J., N. S. (Exch.) 153; 13 M. & W. 623, s. c.

(a) Harrison v. Fane, 1 Sc. N. R. 287; 1 M. & Gr. 550, s. c.

(p) Coleridge J., 5 Ad. & E. N. s. 612, 613.

tion he is to fill, and the extent of his probable means when of age; and the nature and number of his servants and attendants will depend on his position in society. A servant in livery may be allowed to a rich infant, because such attendance is commonly appropriated to persons in his rank of life."(q) Therefore, it has been holden that expensive uniforms are necessary for infant officers in the guards, who have large expectations on coming of age, (r) and the ordinary volunteer regimentals to infant members of a volunteer corps. (s) Silks, furs, and velvets may be necessary and suitable for a young lady of rank and station in society, who sports a carriage and servants in livery, and appears at the tradesman's shop surrounded with the ordinary accompaniments of wealth and station,(t) and a gold watch-chain and a pair of gold breast-pins may be necessary and suitable for the use of an undergraduate at the university, the eldest son of a member of parliament and gentleman of fortune, but "twenty breast-pins could not be necessary." (u) "All such articles as are purely ornamental are not necessary, and for such things, therefore, an infant cannot be made responsible. But if they are not strictly of this description, then the question arises whether they were bought for the necessary use of the party in order to support himself properly in the degree, state, and station of life in which he moved, if they were, for such articles the infant may be made responsible.” (x)

When the infant is living away from home, and the goods ordered by him are not delivered at the residence of the parent, the tradesman is not bound to inquire into the private means at the disposal of the infant, or how and to what extent he is supplied with clothing and necessaries by his relations and friends.(y) But the tradesman ought to make inquiry into the general habits and mode of life of the infant, and his probable means on coming of age, before he supplies him with expensive articles, or with any large quantities of things. If he panders to the extravagance of youth, and furnishes things which he might have ascertained by inquiry to be unnecessary and unsuitable for the infant, the courts will not enforce his claim for payment against the latter. (z)

(g) Alderson B., 13 M. & W. 258. Hands v. Slaney, 8 T. R. 578.

(r) Burghart v. Hall, 4 M. & W. 730.

(s) Coats v. Wilson, 5 Esp. 152.

(t) Dalton v. Gib, 5 Bing. N. C. 198.

(u) Peters v. Fleming, 6 M. & W. 43. (x) Parke, B., ib. 47.

(y) Brayshaw v. Eaton, 5 Bing. N. C. 23. Burghart v. Hall, 4 M. & W. 727. Peters v. Fleming, 8 M. & W. 46.

(z) Ford v. Fothergill, Peake, 301. Berghart v. Angerstein, 6 C. & P. 699. Wharton

v. Mackenzie, 5 Ad. & E. N. s. 612.

RATIFICATION by ADULTS of contracts entered into during INFANCY.

Ratification of DEEDS.—We have already seen that contracts under seal (excepting necessary and beneficial leases, ante, 860,861,) entered into by the infant during his infancy are in general void. A deed executed during infancy cannot be ratified by any verbal or written promise or acknowledgment by the infant after he attains his majority; (a) nor can it, strictly speaking, be ratified at all. In order to be of any force or effect as against a party who has executed it during infancy, it must be re-executed and re-delivered by such party after he comes of age. The deed must, in fact, be re-made, and an entirely new contract created, bearing date after the party has attained his majority. The mere re-delivery of the old deed will not suffice to set it up as a binding contract, for "if an infant make a deed, and deliver it within age, and, afterwards, upon his coming of full age, deliver it again, yet the deed is void, for the deed must take effect from the first delivery, or not at all." () As regards LEASES, however, granted by an infant, the validity of which depends upon the advantage or disadvantage of the lease to the infant, if it be questionable whether the lease was necessary and beneficial to him, and fit and proper to be granted, and, consequently, a valid lease; or whether it was an improvident and foolish contract detrimental to his interests, and consequently invalid; the conduct of the infant on his attaining his majority may be taken into consideration. If he accepts rent from the lessee, and does acts affirmatory of the contract, the lease will (if the contract is of a doubtful character, and the benefit equivocal) be deemed to have been a necessary and beneficial lease, and will be valid and binding.(c) If, on the other hand, the infant repudiates the contract on his attaining his majority, this will be primâ facie evidence the other way; but it is not the infant's conduct alone which will be decisive of the question.

In the case of an infant lessee, where an estate has been granted to an infant at a certain rent, if the latter remains in possession of the property demised to him, and pays rent after he attains his majority, this will be very strong evidence that the contract was for his benefit, and he will not afterwards be allowed to repudiate it. "If an infant takes a lease for years of land, rendering rent which is in arrear for several years, and then the infant comes of age and still continues the occupation of the land; this makes the lease good and unavoidable, and by consequence makes him chargeable with all the arrears incurred during his minority; for though at

(a) Baylis v. Dineley, 3 M. & S. 477. (b) Bac. Abr. Inf. (A.)

(c) Baylis v. Dineley, 3 M. & S 481. Smith v. Low, 1 Atk. 489.

full age he might have departed from the bargain, and thereby have avoided payment of the arrears, which the lessor suffered to accrue during the minority, yet his continuance in possession after his full age ratifies and affirms the contract ab initio, and so gives remedy for the arrears of rent incurred from the time of the contract made." (d)

RATIFICATION of SIMPLE CONTRACTS.-The stat. 9 Geo. 4, c. 14, s. 15, enacts, as we have already seen, that 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.

Form of the WRITTEN RATIFICATION or PROMISE.-The mere fact of the confirmation or ratification of the debt, or of the making of the promise is all that is required by the statute to be evidenced by writing. A date, therefore, is not necessary to the validity of the written instrument, nor need it be stated on the face of the writing that the debt was contracted during the infancy of the promisor, nor need the name of the creditor or of the party to whom the promise is made be expressed therein, or the amount of the debt. Oral evidence may be given for the purpose of establishing these necessary particulars. Therefore, where the plaintiff brought an action for the price of goods sold and delivered to the defendant, and the latter pleaded his infancy, and the plaintiff replied that the defendant after he had attained his age of twenty-one years ratified and confirmed the contract, and produced a letter in the defendant's handwriting, but without any address, to the following effect:-" Sir,-I am sorry to give you so much trouble in calling, but I am not prepared for you; but will, without neglect, remit you in a short time," it was held that the plaintiff might show through the medium of oral evidence that the defendant whilst he was an infant contracted a debt with the plaintiff, and that when the defendant came of age the plaintiff sent his servant with the account to the defendant, and demanded payment of the debt, that the defendant desired the servant to call again the same day, which the latter did, and then received from the defendant's servant the aforesaid letter, and that the letter, taken in connexion with these circumstances, was a sufficient ratification and confirmation of the contract within the statute, and that it was for the jury to determine the amount of the debt and the extent of the liability.(e)

(d) Bac. Abr. Infancy (K.) 8. Ketsey's case Cro. Jac. 320; 2 Bulstr. 69, s. c. Baylis v.

Dineley, 3 M. & S. 481.

(e) Hartley v. Wharton, 11 Ad. & E. 934.