Results. What the term "necessaries includes. The general result appears to stand thus : When it is sought to enforce a contract against an infant on the ground that it was for necessaries, then the prima facie necessity of the commodities supplied is a question for the Court. If the Court holds them not prima facie necessary, evidence may be given of special circumstances rendering them in fact necessary, and the sufficiency or otherwise of such evidence is a question for the Court. Subject as above, the necessity of the commodities in fact is a question for the jury. Commodities of a description in itself necessary are not necessaries when the buyer is already supplied with as much of the like commodities as he can reasonably want (a). Hitherto we have spoken of a tradesman supplying goods, this being by far the most common case. But the range of possible contracts for "necessaries" is a much wider one. "It is clearly agreed by all the books that speak of this matter that an infant may bind himself to pay for his necessary meat, drink, apparel, physic [including, of course, fees for medical attendance, &c., as well as the mere price of medicines], and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards" (b). Thus learning a trade may be a necessary, and on that principle an infant's indenture of apprenticeship has been said to be binding on him (c). The preparation of a settlement containing proper provisions for her benefit has been held a necessary for which a minor about to be married may make a valid contract, apart from any question as to the validity of the settlement itself (d). A more remarkable extension of the definition of necessaries is to be found in the case of Chapple v. Cooper (e), where an infant widow was sued for her husband's funeral expenses. The Court held that decent burial may be considered a necessary (a) This statement, as we have (b) Bac. Abr. Infancy and Age, (c) Cooper v. Simmons, 7 H. & N. 707, 31 L. J. M. C. 138, per Martin B. See, however, p. 46 supra. (d) Helps v. Clayton, 17 C. B. N. S. 553, 34 L. J. C. P. 1, see the pleadings, and the judgment of the Court ad fin. (e) 13 M. & W. 252, 13 L. J. Ex. 286. for every man, and husband and wife being in law the same person, the decent burial of a deceased husband is therefore a necessary for his widow. The conclusion, though arrived at by a circuitous and highly artificial course of reasoning, seems in itself satisfactory on the broader ground, which however the Court did not adopt, that a contract entered into for the purpose of performing an imperative moral and social, if not legal, duty which it would have been scandalous to omit may well be considered of as necessary a character as any contract for personal service or purchase of goods for personal use. We refrain from any further enumeration of the various things which have been decided to be necessary or not necessary, for two reasons: that the question, though to a great extent a question for the Court, is one of judicial common sense in each particular case, for which precedents can supply no absolute authority but only more or less instructive analogies, and that to undertake such an enumeration would be to usurp the office of a Digest (a). only. The supply of necessaries to an infant creates only a liability The liability is on on simple contract, and it cannot be made the ground of any simple different kind of liability (b). Coke says, "If he bind himself contract in an obligation or other writing, with a penalty for the payment of any of these, that obligation shall not bind him" (c), and such is the common law with regard to negotiable instru ments (d). But it is said that a bill or note given by a infant to a creditor for necessaries may be valid if it is not payable to order or negotiable (e). tracts an infant can There are some particular contracts of infants valid by What concustom. By custom incident to the tenure of gavelkind an infant may sell his land of that tenure at the age of fifteen, but the make by conveyance must be by feoffment, and is subject to other custom. restrictions (f). This, however, is not a full capacity of con (a) See the cases collected, Fisher's Dig. 4632-5. (b) At common law a loan of money could not be deemed equivalent to necessaries, though actually spent on necessaries: Bac. Abr. 4. 356. (c) Co. Lit. 172a, cp. 4 T. R. 363. (d) Leake, 234; and so of accounts stated, but these are now absolutely (e) Anon. M. S. Fisher's Dig. 4626. (f) Bacon Ab. Gavelkind, A., 4. 49; Dav. Conv. 2. pt. 1. 221 (3d ed.); Dart V. & P. 3. By statute. Infant not liable for wrong where the claim is in substance ex contractu. tracting, for there is no reason to suppose that an action could be brought against the infant for a breach of the contract for sale, or specific performance of it enforced. "Also by the custom of London an infant unmarried and above the age of fourteen, though under twenty-one, may bind himself apprentice to a freeman of London by indenture with proper covenants; which covenants by the custom of London shall be as binding as if he were of full age," and may be sued upon in the superior courts as well as in the City courts (a). Infants, or their guardians in their names, are empowered by statute (11 Geo. 4 & 1 Wm. 4, c. 65, ss. 16, 17) to grant renewals of leases, and make leases under the direction of the Court of Chancery, and in like manner to surrender leases and accept new leases (s. 12). (The provisions as to renewals of leases extend also to married women) (b). And by a later Act, (18 & 19 Vict. c. 43) infants may with the sanction of the Court make valid marriage settlements of both real and personal property (c). 4. Of an infant's immunity as to wrongs connected with contract. An infant is generally no less liable than an adult for wrongs committed by him, subject only to his being in fact of such age and discretion that he can have a wrongful intention, where such intention is material; but he cannot be sued for a wrong, when the cause of action is in substance ex contractu, or is so directly connected with the contract that the action would be an indirect way of enforcing the contract-which, as in the analogous case of married women (d), the law does not allow. Thus it was long ago held that an infant innkeeper could not be made liable in an action on the case for the loss of his guest's goods (e). There is another old case reported in divers books (ƒ), (the clearest of the reports is transcribed with immaterial (a) Bacon Ab. Infancy B., 4. 340. (e) Rolle Ab. 1.2, Action sur Case, D. 3. (f) Johnson v. Pie, Sid. 258, 1 Lev. 169, 1 Keb. 913. apart from omissions in a judgment of Knight Bruce V.C.) (a), where it was decided that an action of deceit will not lie upon an assertion by a minor that he is of full age. It was said that if such actions were allowed all the infants in England would be ruined, for though not bound by their contracts, they would be made liable as for tort; and it appears in Keble's report that an infant had already been held not liable for representing a false jewel not belonging to him as a diamond and his own. The rule is decidedly laid down in Jennings v. Rundall (b), where it was sought to recover damages from an infant for over-riding a hired mare. But if an infant's wrongful act, though concerned But liable for wrong with the subject-matter of a contract, and such that but for the contract there would have been no opportunity of committing contract, it, is nevertheless independent of the contract in the sense of not though being an act of the kind contemplated by it, or being an act the subexpressly forbidden by it, then the infant is liable. The dis- ject-mattinction is established and well marked by a modern case in the contract. Common Pleas, where an infant had hired a horse for riding, but not for jumping, the plaintiff refusing to let it for that purpose; the defendant allowed his companion to use the horse for jumping, whereby it was injured and ultimately died. It was held that using the horse in this manner, being a manner positively forbidden by the contract, was a mere trespass and independent tort, for which the defendant was therefore liable (c). touching ter of a on contract implied in Having seen that an infant cannot be made liable as for a Qu. liable wrong when the cause of action is in substance ex contractu, we are naturally led to ask whether, conversely, he can be made liable law? quasi ex contractu (as for money received), when the real cause of action is a wrong independent of contract. This is an open question on which authority is divided. The liability is affirmed in Chitty on Contracts (p. 148, 9th ed.), and by Mr. Leake (p. 226), and disputed by Mr. Dicey (on Parties, 284), who is supported by a dictum of Willes J., assuming that infancy would be a good plea to an action for money received, (a) Stikeman v. Dawson, 1 De G. & Sm. 113; and see other cases collected at p. 110, where "the case mentioned in Keble" is that which, as stated in the text, occurs in his report of Johnson v. Pie. (b) 8 T. R. 335. It is also recognized in Price v. Hewett, 8 Ex.. 146 (not a decision on the point.) (c) Burnard v. Haggis, 14 C..B. N. S. 45, 32 L. J. C.. P. 189. In equity liable and bound by his acts, represent himself as vantage thereby gained. though substantially founded on a wrong (a). On principle the former opinion seems preferable. 5. Liability in equity on representation of full age. When an infant has induced persons to deal with him by falsely representing himself as of full age, he incurs an obligation &c., if he in equity, which however in the case of a contract is not an obligation to perform the contract, and must be carefully dis. of full age; tinguished from it (b). Indeed it is not a contractual obligation but only to the extent at all. It is limited to the extent we have stated above (p. 33) of any ad- and the principle on which it is founded is often expressed in the form:"An infant shall not take advantage of his own fraud." A review of the principal cases will clearly show the correct doctrine. In Clarke v. Cobley (c) the defendant being a minor had given his bond to the plaintiff for the amount of two promissory notes made by the defendant's wife before the marriage, which notes the plaintiff delivered up. (It must be taken, though it is not clear by the report, that the defendant falsely represented himself as of full age.) The plaintiff on discovering the truth, and after the defendant came of age, filed his bill praying that the defendant might either execute a new bond, pay the money, or deliver back the notes. The Court ordered the defendant to give back the notes, and that he should not plead to any action brought on them the Statute of Limitation or any other plea which he could not have pleaded when the bond was given; but refused to decree payment of the money, holding that it could do no more than take care that the parties were restored to the same situation in which they were at the date of the bond. Cory v. Gertcken (d) shows that when an infant by falsely representing himself to be of full age has induced trustees to pay over a fund to him, neither he nor his representatives can afterwards charge the trustees with a breach of trust and make them pay again. Overton v. Banister (e) confirms this; it was there held however (a) Alton v. Midland Ry. Co. 19 C. B. N. S. at p. 241; 34 L. J. C. P. at p. 297. (b) Acc. Bartlett v. Wells, 1 B. & S. 836, 31 L. J. Q. B. 57. Declaration for goods sold, &c. Plea, infancy. Equitable replication, that the contract was induced by defendant's fraudulent representation that he was of age. The replication was held bad, as not meeting the defence but only showing a distinct equitable right collateral to the cause of action sued upon. (c) 2 Cox 173. |