expensive dresses and men's nightcaps, it was held that she was entitled to recover. Lloyd v. Johnson, 1 B. & P. 340. So, for lodgings let to one, if not knowingly let for the purpose of prostitution. Crisp v. Churchill, cited 1 B. & P. 340; Jennings v. Throgmorton, Ry. & M. 251. But, after plaintiff has become aware of the purpose for which they were let, he cannot recover. S. C.; Smith v. White, L. R., 1 Eq. 626. So, the hire for a brougham cannot be recovered from a prostitute where the coachmaker knew her to be such, and supplied the brougham knowing it was to be used by her, as part of her display to attract men. Pearce v. Brooks, L. R., 1 Ex. 213. is unnecessary that the plaintiff should have looked expressly to the proceeds of the defendant's prostitution, for payment. Id.; overruling, on this point, Boury v. Bennet, supra. See Taylor v. Chester, L. R., 4 Q. B. 309.

It

Where a bond has been given, by a man to his concubine, it is not to be presumed from the subsequent continuance of the cohabitation, that it was given to secure such cohabitation, and therefore for an immoral consideration. Vallance v. Blagden, W. N. 1884, p. 60, Kay, J.

Infancy.

That the defendant was an infant at the time of the contract made, is a good defence, unless the action be for necessaries; the defence must be specially pleaded. Rules, 1883, O. xix., r. 15, ante, p. 283.

Where the action, though in form ex contractu, is, in fact, founded upon tort, infancy will be no defence. Burnand v. Haggis, 14 C. B., N. S. 45; 32 L. J., C. P. 189. Thus an action for money had and received lies against an infant for money which he has appropriated by fraud or embezzlement. Bristow v. Eastman, 1 Esp. 172. But, if the action be founded on mere fraudulent representation, infancy is a defence. Johnson v. Pye, 1 Sid. 258; see also Liverpool Adelphi v. Fairhurst, 9 Exch. 422, the case of a feme Covert. It seems, since the J. Act, 1873, to be an answer to the defence of infancy that the infant fraudulently represented himself to be of full age. Ex pte. Unity Joint Stock Mutual Banking Association, 3 D. G. & J. 63; 27 L. J., Bky. 33: see cases cited in Lemprière v. Lange, 12 Ch. D. 675.

In calculating age fractions of days are disregarded, thus a person born on Sept. 3rd, becomes of age on Sept. 2nd, 21 years afterwards. Anon. cited per Holt, C. J., 1 Ld. Raym. 480.

What are necessaries.] An infant may bind himself for necessaries, that is, for meat, drink, apparel, lodging, medicines, &c., and also for his good teaching or instruction. Co. Litt. 172 a; Com. Dig. Enfant (B. 5). The question of what are necessaries is to be governed by the fortune and circumstances of the infant; and the proof of those circumstances lies on the plaintiff; per Ld. Kenyon, C. J.; Ford v. Fothergill, 1 Esp. 211; Ryder v. Wombwell, L. R., 4 Ex. 32, Ex. Ch., reversing S. C., L. R., 3 Ex. 90. They may be necessaries, without being absolutely requisite for bare subsistence. Peters v. Fleming, 6 M. & W. 42. It is a mixed question of law and fact to be left to the jury, subject to the opinion of the court as to the manner in which the jury have exercised their judgment. Harrison v. Fane, 1 M. & Gr. 550, 553; Wharton v. Mackenzie, 5 Q. B. 606. The judge must decide whether the case is such as to cast on the plaintiff the onus of proving that the articles are necessaries, and then whether there is any evidence to satisfy that onus; if the judge requires such evidence, and the plaintiff do not produce any, the judge is bound to nonsuit, and ought not to leave the case to the jury. Ryder v. Wombwell, L. R., 4 Ex. 40, per Ex. Ch. An infant, a captain in the army, has been held liable for a livery ordered by him for his servant; but not for cockades for the soldiers of his company.

Hands v. Slaney, 8 T. R., 578; and see Coates v. Wilson, 5 Esp. 152. So, an infant may contract to pay a fine due upon his admission to a copyhold estate; Evelyn v. Chichester, 3 Burr. 1717; or, for necessaries supplied to his wife. Turner v. Trisby, 1 Str. 168; B. N. P. 155. A fair contract for work and labour to be done by him is binding. Wood v. Fenwick, 10 M. & W. 195; Cooper v. Simmons, 7 H. & N. 707; 31 L. J., M. C. 138; Leslie v. Fitzpatrick, 3 Q. B. D. 229. But, not if such contract is inequitable; S.C.; R. v. Lord, 12 Q. B. 757; as if his master reserves a right to stop wages at will; S. C. See Meakin v. Morris, W. N. 1884, Q. B. D.

In an action for a trousseau, supplied to a female infant before her marriage, it was held that the true test of whether the goods supplied were necessaries, was the real position of the future husband in society, and not the apparent or assumed condition he might take upon himself. Stacy v. Firth, 16 L. T., N. S. 498, Lush, J. A female infant, who has no property of her own to settle, may contract with a solicitor for the expenses of a marriage settlement. Helps v. Clayton, 17 C. B., N. S. 553; 34 L. J., C. P. 1. So, she may bind herself for the expenses of her husband's funeral, though he left no assets. Chapple v. Cooper, 13 M. & W. 252.

It is not material to the defence whether the infant was in fact supplied by his friends with an allowance sufficient to buy all necessaries with ready money. Burghart v. Hall, 4 M. & W. 727. Nor, is it a condition precedent to recovery, that the plaintiff should have made inquiry as to the necessity of the articles sold, before he supplied them. Brayshaw v. Eaton, 5 N. Č. 231; S. C. 7 Scott, 183; Dalton v. Gib, 5 N. C. 198. In order to rebut the evidence that the goods supplied to him were necessaries, the defendant may show that he was already supplied with a sufficiency of similar goods, although this was not known to the plaintiff. Bainbridge v. Pickering, 2 W. Bl. 1325; Brayshaw v. Eaton, 7 Scott, 183; Foster v. Redgrave, L. R., 4 Ex. 35, n., Q. B. In Ryder v. Wombwell, L. R., 3 Ex. 90 (diss. Bramwell, B.), however, the Exch. held the evidence to be inadmissible, and the Ex. Ch. left the point undecided. In Bainbridge v. Pickering, supra, it was held that a female infant residing with her mother, and supplied by her with necessaries, could not be liable at all, as it was for the mother to decide what articles were necessaries for her daughter.

What are not necessaries.] Although an infant may enter into a partnership, he will not be liable for the contracts of the partnership made during his infancy; but he will be liable upon such contracts made after his full age, unless he notifies his disaffirmance of the partnership. Goode v. Harrison, 5 B. & A. 147, Ex. Ch. An infant is not liable upon an account stated, even though it appears to be for necessaries; nor can the account stated be used as evidence by way of admission on the part of the defendant to show that necessaries have been supplied to that amount. Ingledew v. Douglas, 2 Stark. 36. Nor is he liable for money lent, though it has been laid out in necessaries. Darby v. Boucher, 1 Salk. 279; Probart v. Knouth, 2 Esp. 472, n. And now see Infants' Relief Act, 1874, s. 1, post, p. 600. He is not liable on a bill of exchange, though given for necessaries. Williamson v. Watts, 1 Camp. 552. But, he is liable on a bill accepted by him after 21, though drawn before. Stevens v. Jackson, 4 Camp. 164. Where goods, not being necessaries, are delivered to a carrier for an infant, the infant cannot be charged, though the goods do not reach him till after he is of age. Griffin v. Langfield, 3 Camp. 254. An infant cannot be sued on a warranty of a horse. Howlett v. Haswell, 4 Camp. 118. An infant lieutenant in the navy is not liable for the price of a chronometer, he being out of employment at the time of its being furnished Berolles v. Ramsay, Holt, N. P. 77. Dinners, confectionery, and fruit, supplied to an undergraduate out of college, are not prima facie necessaries. Brooker v. Scott, 11 M. & W. 67 ;

Wharton v. Mackenzie, and Cripps v. Hills, 5 Q. B. 606. And articles supplied cannot be considered as suitable necessaries, if they are merely of an ornamental character, as gold rings, &c. ; see Peters v. Fleming, 6 M. & W. 42, per cur.; or betting books. Jenner v. Walker, 19 L. T., N. S. 398, cor. Cockburn, C. J. Cigars and tobacco, cannot be necessaries, in the absence of special circumstances rendering them necessary, medicinally or otherwise, for the infant. Bryant v. Richardson, L. R., 3 Ex. 93, n., and see Ryder v. Woombwell, ante, p. 598.

If issue is joined on the goods being necessaries, the plaintiff need not prove that all are necessaries, but may recover pro tanto ; per cur. in Tapley v. Wainwright, 5 B. & Ad. 399.

Ratification of promise after full age.] A contract by an infant, other than for necessaries, was formerly voidable only, not void, and was therefore capable of being ratified by him after he had attained his majority; but now, by the Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), s. 1, "all contracts, whether by specialty or by simple contract, henceforth entered into by infants, for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void, provided always that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." Such contracts are therefore no longer capable of ratification. And by sect. 2, "no action shall be brought whereby to charge any person upon any promise, made after full age, to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." This applies to a ratification after the passing of the act, although the promise was made before its passing. Er pte. Kibble, L. R., 10 Ch. 373. It applies to an infant's promise to marry. Coxhead v. Mullis, 3 C. P. D. 439. See also Ditcham v. Worrall, 5 C. P. D. 410. It extends to a set-off; see Rawley v. Rawley, 1 Q. B. D. 460, C. A., decided on similar words in 9 Geo. 4, c. 14, s. 5.

Infant Shareholders.] The liability to calls of infants holding shares in joint-stock and other companies is considered, post, Part III. Actions by companies, 2-Special defences-Infancy.

If the action be on a contract for the sale of shares by the plaintiff to the defendant, a simple defence of infancy is enough, for an infant is not compellable to complete an agreement to buy them.

Infancy-how proved.] Infancy may be proved by calling any person who can speak as to the time of his birth; or by declarations of deceased members of his family mentioning the time of his birth, p. 43. As to whether a certificate of birth can be used for this purpose, vide ante, p. 120. A certificate of baptism cannot so be used, ante, p. 203. If the defendant was of age when the action was commenced, the date of the contract must be shown, as well as his non-age at that date. But where the defendant pleaded infancy to an action against him as acceptor of a bill, it was held that the acceptance, not being dated, ought to be presumed to have been made shortly after the date of the bill itself according to the common practice, the drawer and acceptor not living far apart; therefore, where a bill at four months was dated 9th November, 1850, and the defendant came of age in March, 1851, the jury rightly presumed that he was not of age when he accepted. Roberts v. Bethell, 12 C. B. 778; 22 L. J., C. P. 69.

Insanity.-Intoxication.-Limitation, Statutes of.

601

Insanity.

It is not a good defence that the defendant, at the time of the contract entered into, was of unsound mind, unless the plaintiff knew of it, and took advantage of that circumstance to impose upon him. Browne v. Joddrell, M. & M. 105; Levy v. Baker, Id. 106, n. The inquiry as to the necessity of the goods supplied, and their suitableness to the defendant's condition, may arise on this plea as in that of infancy. See Baxter v. Portsmouth, El. of, 5 B. & C. 170. As to the liability of a lunatic on an implied contract for necessaries supplied to him, see In re Weaver, 21 Ch. D. 615, C. A., and cases there cited. A lunatic is liable for necessaries supplied to his wife; Read v. Legard, 6 Exch. 637; 20 L. J., Ex. 309, or moneys expended for her protection. Williams v. Wentworth, 5 Beav. 325. The rule is, that the contracts of a lunatic, entered into fairly and bona fide with a person, ignorant of his incapacity, where the transaction is in the ordinary course (as the purchase of an annuity), and is wholly or in part executed, are valid. Molton v. Camroux, 2 Exch. 487; Ex. Ch., 4 Exch. 17. Insanity, and the probable knowledge of it by the adverse party, may be proved by showing that it existed and was apparent, either shortly after or shortly before, the alleged contract. Beavan v. M'Donnell, 9 Exch. 309; 23 L. J., Ex. 326. The mere existence of a delusion in the mind of the defendant, although connected with a contract made by him, is not sufficient to avoid such contract; it is a question for the jury whether the delusion affected the contract. Jenkins v. Morris, 14 Ch. D. 674, C. A. See further, post, Action for recovery of land by devisee-Incapacity from idiocy or non-sane

memory.

As to the liability of a principal on contracts entered into on his behalf, by an agent, after the principal has become insane, see Drew v. Nunn, 4 Q. B. D. 661, C. A., cited ante, p. 498.

Intoxication.

A contract entered into by a person in a state of intoxication is in a similar position to one made by an insane person; see Molton v. Camroux, supra; it is voidable, not void; Matthews v. Baxter, L. R., 8 Ex. 132. See further as to this defence, Gore v. Gibson, 13 M. & W. 623.

Limitation, Statutes of.

The statutes of limitation must be specially pleaded, Rules, 1883, O. xix., r. 15, ante, p. 283; and upon issue joined thereon the burden of proof lies on the plaintiff. Wilby v. Henman, 2 Cr. & M. 658. The commencement of the action is the date of the issuing of the original writ of summons, Rules, 1883, O. ii., r. 1; this date is stated on the statement of claim; App. C., sect. 1; and would seem, subject to amendment, to be conclusive evidence thereof; see Harper v. Phillipps, 7 M. & Gr. 397; Whipple v. Manley, 1 M. & W. 432; but after the lapse of six years, strict proof of the regular continuance by other writs was necessary in order to rebut this defence. Pritchard v. Bagshaw, 11 C. B. 459; 20 L. J., C. P. 161. But the first writ is now kept alive by renewal under Rules, 1883, O. viii., r. 1. Under this rule the renewal must be made within 12 months in the case of an original writ, and six months in the case of a renewed writ. The day of renewal is included in such respective times for renewal. Anon., 1 H. & C.

664; 32 L. J., Ex. 88; Fisher v. Cox, 16 L. T., N. S. 397, Q. B., decided on C. L. P. Act, 1852, s. 11. As it was held unnecessary to reply specially, the issuing and return of successive writs under 2 Will. 4, c. 39 (Higgs v. Mortimer, 1 Exch. 711), so it seems to be unnecessary to reply the renewal of the original writ under the new process now substituted. By Rules, 1883, O. viii., r. 2, the production of a writ, purporting to be marked with the seal of the court showing the same to have been renewed according to rule 1, shall be sufficient evidence of such renewal, and of the commencement of the action, as of the first date of such renewed writ for all purposes.

A misdated writ, with its indorsement, is amendable under Rules, 1883, O. xxviii., r. 12, ante, pp. 269, 270, according to the facts; though the effect may be to defeat the statute of limitations. See Cornish v. Hockin, 1 E. & B. 602; 22 L. J., Q. B. 142. But, there is no power to alter the true date. Clarke v. Smith, 2 H. & N. 753; 27 L. J., Ex. 155.

The time of limitation is to be computed exclusively of the day on which the cause of action arose. Hardy v. Ryle, 9 B. & C. 603; Freeman v. Read, 4 B. & S. 178; 32 L. J., M. C. 226.

The principal Statutes of Limitation applicable to personal actions are— 21 Jac. 1, c. 16; 4 & 5 Anne, c. 3 (c. 16, Ruff.); 9 Geo. 4, c. 14 (Ld. Tenterden's Act); 3 & 4 Will. 4, c. 27, s. 40; 3 & 4 Will. 4, c. 42, ss. 3 to 7; 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act, 1856); and 37 & 38 Vict. c. 57, s. 10 (Real Property Limitation Act, 1874), cited post, p. 639.

Foreign Statutes of Limitation, which bar the remedy only, and not the right, have no operation here. Huber v. Steiner, 2 N. C. 202; Alliance Bank of Simla v. Carey, post, p. 603; even after judgment for the defendant in the foreign court on a plea of the foreign statute; Harris v. Quine, L. R., 4 Q. B. 653.

By stat. 21 Jac. 1, c. 16, s. 3, actions of account, and on the case (other than concerning the trade of merchandise between merchants or their factors or servants, and other than for slander), actions of debt on lending or contract without specialty, or for rent arrear, are to be brought within six years after the cause of action, and not after.- Under the head “case” is here included assumpsit on promises, and the part of the statute above cited therefore includes all the causes of action founded on simple contract, whether expressed to be for a debt, or on a promise or contract, express or implied, formerly prosecuted in the form of debt or assumpsit.

The exception in this statute of merchants' accounts was held to apply only to actions of account, or, perhaps, for not accounting; or at all events only to cases in which account would lie. Inglis v. Haigh, 8 M. & W. 769; Cottam v. Partridge, 4 M. & Gr. 271. And by 19 & 20 Vict. c. 97, s. 9, this exception has been abolished, and all such actions shall be commenced within six years after the cause of action, and no claim in respect of a matter which arose more than six years before such action, shall be enforceable by action by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action.

An action of debt on the bye-law of a chartered company is an action on a contract without specialty; Tobacco Pipe Co. v. Loder, 16 Q. B. 765; 20 L. J., Q. B. 414; so, is an action for calls by a company established under an act of a colonial legislature. Welland Ry. Co. v. Blake, 6 H. & N. 410; 30 L. J., Ex. 161. But, an action given by statute, as for calls on a shareholder in a company, under the Companies Clauses Consolidation Act, 1845, is founded on specialty. Cork & Bandon Ry. Co. v. Goode, 13 C. B. 826; 22 L. J., C. P. 198. The liability of a member or contributory of a joint-stock company incorporated under the Companies Act, 1862, to pay calls, is,