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nor can an infant bind himself by executing a cognovit (c), or a bond (d), for a debt due for necessaries.
Two questions, with regard to an infant's necessaries, have given rise to discussion (e). First Question.-Can articles be necessaries with which can articles
be necesan infant is fully supplied ?
saries with Suppose A., a tradesman, to supply X., an infant, with which
infant twenty loaves of bread, at a time when X. is already already fully supplied with bread; will X. be liable for the price supplied ?
1 of the twenty loaves as for the price of necessaries ? or, to put the same inquiry in another form, can X., when sued by A. for the price of the loaves, give evidence that he was already fully supplied with bread ?
The answer usually given, and supported by high authority, is, that articles with which an infant is already fully supplied are not necessaries for him; and that, though “an infant may contract a debt for necessaries, notwithstanding he has a sufficient income to supply himself with ready money (f), and the party supplying necessaries to an infant is not, as a general rule, bound to inquire into his circumstances before giving credit to him (g), yet the fact (h) of the infant being properly provided with any article is material with regard to the question of the necessity of a further supply of the same article" (i).
The correctness of this answer is doubtful. The Court of Exchequer have held in a recent case (k) that evidence could not be tendered to show that an infant was already
(c) Truman v. Hurst, 1 T. R. 40.
(d) Oliver v. Woodroffe, 4 M. & W. 650 ; but conf. Co., Litt., 172 a; Baylis v. Dinely, 3 M. & S. 477, 482; Marlow v. Pitfield, 1 P. Wm. 558.
(e) Leake, Contracts, 234.
(i) Leake, Contracts, 233 ; Chitty, Contracts, 7th ed., 136, 137, 140. See Ryder y. Wombrell, L. R. 3, Ex. 97, judgment of Bramwell, B.
(k) Ibid., L. R. 3, Ex. 90; 37 L. J. 48, Ex.
INFANTS. fully supplied with articles similar to those treated by the
plaintiff as necessaries, unless at any rate it could be shown that the fact of the infant being so supplied was within the knowledge of the plaintiff when he supplied the articles, and the Court of Exchequer Chamber have, in the same case, treated the question under discussion as one the answer to which is uncertain (1).
“It becomes, therefore," the Court say, unnecessary to decide whether the evidence tendered was properly rejected or not. That is a question of some nicety, and the authorities are by no means uniform. In Bainbridge v. Pickering (m) the Court of Common Pleas seem to have acted on a principle which would make the evidence admissible. In Brayshaw v. Eaton (n), Bosanquet, J.,
. treats it as clearly admissible, and on those authorities the Court of .Queen's Bench (then consisting of Blackburn, J., and Mellor, J.) acted in Foster v. Redgrave (o). There is much to be urged in support of the view taken by the majority in the court below, and we desire not to be understood as either overruling or affirming that decision. If ever the point again arises, the court before which it comes must determine it on the balance of authority and on principle, without being fettered by
a decision of this court" (p). Are there Second Question.- Are there things which cannot be things which can:
necessaries ? not be It has been maintained on the one hand (9), though it saries ? is conceived) erroneously (r), that the question whether a
given article, e.g., a golden goblet given by a young gentleman to one of his acquaintance, is, or is not, a necessary, is a mere question of fact to be decided with reference to the circumstances of the particular case, and that
(2) Ryder v. Wombwell, L. R. 4 Ex. 42.
there are no articles which may not conceivably fall under the head of necessaries.
It has been maintained on the other hand, that there are certain things which are so obviously luxuries, that they can as a matter of law be pronounced not to be in any case necessaries, or, in other words, that there are articles of mere luxury which can never be necessaries, though luxurious articles of utility sometimes may be so. As examples of mere luxuries have been cited, ear-rings for a man, spectacles for a blind person, a wild animal, and so forth (s).
A third view, which differs though but slightly, yet materially, from the doctrine that there are some thing which cannot be necessaries, and which is (it is submitted) correct, is as follows:- There are no articles of which it can be pronounced as a matter of law that they can under no circumstances be necessaries; but while there are some articles, (e.g., bread), which, primâ facie, are necessaries; there are other articles, (e. g., cigars),
, which, primâ facie, are not necessaries. When a tradesman sues an infant for the price of the latter, the burden lies upon him of showing affirmatively, that articles which are, primâ facie, not necessaries, are made necessaries by the special circumstances of the case. If he does not produce evidence to this effect, and evidence on which a jury may reasonably act, he has not made out his case, and the judge should nonsuit him without submitting the case to the jury (t).
The result, therefore, of the law as to an infant's necessaries, may be seen from the following examples, in which A. is a tradesman and X. an infant.
A. sells to X. bread, vegetables, &c.; A. can recover from X. the price of the goods on showing that he supplied them to X. on X.'s order, though it is possible that X. may defend himself by proving that he was already
(8) Ryder v. Wombwell, L. R. 3 Ex. 96, judgment of Bramwell, B.
(1) See, in support of this view, Ryder v. Wombwell, L. R. 4 Ex. 38– 40, judgment of Exchequer Chamber.
fully supplied with bread, &c., and probable that he may do so by showing that A. knew of his being so supplied.
A. sells X. cigars. These are, prima facie, not necessaries; A. therefore cannot recover their price by simply proving the sale to X. If this is all he can prove, he will be nonsuited. But he may produce evidence that the cigars were necessaries for X., e.g., that X. was ordered by his physician to smoke cigars. On the production of such evidence the case will go to the jury, and A. will recover if they are satisfied that the cigars were, under the whole circumstances of the case, necessaries for X.
Contracts in Exception 2.—Contracts in respect of permanent property occurespect of pied or possessed by an infant. permanent property There seems to be authority for asserting (u), that where
an infant becomes possessed by means of a contract of real estate, or other permanent property to which certain obligations (e.g., the payment of rent) are attached, he is liable to these obligations as long as he continues in possession, and until he disagrees to or renounces the estate or repudiates the possession of the property and can be sued in respect of them. Thus where an infant was admitted to a copyhold estate and retained possession of it after coming of age, he was held liable for the fines due upon it, and an opinion was expressed by Yates, J., that he would have been liable to an action even during infancy.
“If the defendant was still an infant, I should think this action maintainable. Debt perhaps would not lie.
But assumpsit I think would lie, as the infant continued to occupy and enjoy the estate. In Kirton v. Elliott (v), the plaintiff recovered against an infant the rent upon a lease made to him, and it is there said that if a lease be made to an infant, and he occupies and enjoys, he shall be charged with the rent" (x). So, "infants
(u) Leake, Contracts, 227, 228.
having become shareholders in railway companies, have been held liable to pay calls made whilst they were infants (y). They have been treated, therefore, as persons in a different situation from mere contractors, for then they would have been exempt. But, in truth, they are purchasers, who have acquired an interest, not in a mere chattel, but in a subject of a permanent nature, . . . and with certain obligations attached to it, which they were bound to discharge, and have been thereby placed in a situation analogous to an infant purchaser of real estate, who has taken possession, and thereby becomes liable to all the obligations attached to the estate,--for instance to pay rent (2), in the case of a lease rendering rent, and to pay a fine due on the admission, in the case of a copyhold to which an infant has been admitted,-unless they have elected to waive or disagree to the purchase altogether, either during purchase or after full age, at either of which times it is competent for an infant to do so" (a). Father not liable.—A father is, as such, under no legal Father not
liable. liability to pay for necessaries supplied to his child. “In point of law a father who gives no authority, and enters into no contract, is no more liable for goods supplied to his son than a brother or an uncle or a mere stranger would be. From the moral obligation a parent is under to provide for his children, a jury are not unnaturally disposed to infer against him a liability, in respect of claims upon his son, on grounds which warrant no such inference in law" (6). The mere fact that the goods supplied were necessaries, and were supplied with the knowledge of the parent, is not of itself sufficient to support an inference of a promise on the part of the father to pay for them. In order to bind him in point of law for a debt incurred by his child, it must be
(y) Cork and Bandon Rail. Co. v. Cazenove, 10 Q. B. 935; Leeds and Thirsk Rail. Co. v. Fearnley, 4 Exch. 26; 18 L. J. 330, Ex.
(z) 21 Hen. VI., 31 B.
(a) North-Western Rail. Co. v. McMichael, 5 Exch. 123, 124, per Curiam. (6) Mortimore v. Wright, 6 M. & W. 486, judgment of Abinger, C. B.