these are the principles on which the judge ought to direct the jury that their decision should in each particular case be guided. It is impossible to understand this subject practically, so as to be able to say with tolerable certainty what would be the decision on this or that particular case, except by a familiarity with similar ones. I will therefore refer you to a number of decided cases, containing, in my judgment, the best illustrations of the matter; see Burghart v. Hall, 4 M. & W. 727; Peters v. Flemyng, 6 M. & W. 42; Hands v. Slaney, 8 T. R. 578; Coates v. Wilson, 5 Esp. 152; Harrison v. Fane, 1 M. & G. 550, 39 E. C. L. R.

The two cases of Peters v. Flemyng, 6 M. & W. 42, and Harrison v. Fane, 1 M. & G. 550, in one of which the infant was held liable, and in the other not, appear to me to furnish good examples of the distinctions of which I am speaking.

In Peters v. Flemyng, the plaintiff, who was a jeweller, brought an action of assumpsit against an infant, who pleaded his infancy by way of defence: the plaintiff replied that the goods, for the price of which he sued, were necessaries suitable to the estate, degree, and condition in life of the infant, on which issue was joined, and the question tried was, whether they were or were not so. It turned out that the infant [*203] was the eldest son of a member of Parliament, who was, also, a gentleman of fortune, and that the infant was an undergraduate of the University of Cambridge, and resided at the University. The articles supplied, were four rings, a gold watch chain, and a pair of breast pins. The jury found that these articles were necessaries, and a motion was made to set aside the verdict as contrary to evidence. The Court of Exchequer, however, refused to interfere. Baron Parke said,

"It is perfectly clear that, from the earliest time down to the present, the word necessaries was not confined to such articles as were necessary to the support of life, but extended to articles fit to maintain the particular person in the state, station, and degree of life in which he is; and therefore, we must not take the word 'necessaries' in its unqualified sense, but with the qualification above pointed out. The question therefore is, whether there was any evidence to go to the jury that any of these articles were of that description. I think there are two that might fall under that description, namely, the breast-pin and the watch-chain. The former might be a matter either of necessity or ornament. The usefulness of the other might depend on this, whether the watch was necessary? If it was, then the chain might become necessary itself. Now, it is impossible that a judge could withdraw from the consideration of a jury whether a watch was necessary for a young man at college, and of the age of eighteen or nineteen to have? That being so, it is equally, as far as the chain is concerned, a question for the jury. There was therefore evidence to go to the jury. The true rule I take to be this, that all such articles as are purely ornamental are not necessary, and are to be rejected, because they can not be requisite for any one, and for such matters therefore an infant cannot be made responsi

[*204] ble. But if they were 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."

On the other hand, in Harrison v. Fane, 1 Mann. & Gr. 550, a, an action was brought by a livery stable keeper for the hire of horses, the defendant pleaded infancy, and the plaintiff replied that the horses furnished were necessary for the infant, upon which issue was joined. It turned out on the trial that the defendant was a younger son of a gentleman who had once been a member of Parliament, and who had a family of five children. The defendant, the infant, kept a horse of his own, and sometimes hunted with his father's hounds. Under these circumstances, the judge who tried the cause thought that the horses

were not necessaries, (a) *and directed the jury [205]

accordingly; but the jury thought proper,

(a) So in Brooker v. Scott, 11 M. & W. 67. Soda water, oranges, and jellies, for an infant undergraduate at college, were held, prima facie, not to be necessaries, though they might have been shown to have been so. It is impossible not to perceive that these things are as suitable to the condition of a gownsman as a gold watch-chain, and in all probability quite as necessary as the gold breast-pin of Mr. Flemyng; but a remark made by Mr. Baron Parke shows that there was another reason for the decision in Brooker v. Scott. "This is the case of a young man resident in the town, and having from his college everything necessary for a person in statu pupillari." But nevertheless the rule must be deemed to be somewhat narrowed in the latter case.

1 The case of Brooker v. Scott, was certainly, to some extent, rested on the ground that such circumstances, on the part of the defendant, had not been shown as to warrant the leaving the question as to necessaries to the jury. (See the note to next page.) At the same time, the Court certainly did rely upon the fact of the defendant being in statu pupillari, and the more recent cases of Wharton v. M'Kenzie, and Cripps v. Mills, reported together in 6 Queen's Bench, 606, 48 E. C. L. R., may be said to have relied almost entirely on that ground. In the first of them, the claim was for fruit, marmalade, ices, soda water, &c., and the plaintiff not only proved his claim, but proved that during part of the time the defendant was under medical treatment for the lungs, &c., and ordered to take fruit, ices, &c., and that he associated with men of rank and fortune in the college, and that his father was governor of Ceylon. Mr. Justice Wightman therefore left it to the jury to say whether, taking into their estimation the rank and fortune of the defendant, the supply was extravagant, or such as might have been fairly supplied to a young man living in good society, and they having found for the plaintiff, the Court granted a new trial, on the ground of misdirection, Wightman, J., acknowledging that he ought to have pointed out that the term necessaries should be construed with reference to a person in statu pupillari at college, and supplied with what is generally necessary. Cripps v. Mills was a perfectly clear case, the articles being wild ducks, grouse, &c., furnished for entertainments given by defendant at college. In all three of these cases, the evils arising from the extent to which the credit system is carried at the Universities, evidently had a great effect upon the decisions.

nevertheless, to find their verdict for the plaintiff. The Court, considering it a perverse one, and contrary to law, set it aside, the L. C. J. saying that he would not say that horses could not be necessaries under any circumstances, but that no evidence was given that they were so in the present case. With regard to the L. C. Justice's remark, I feel no difficulty in putting a case in which a horse might be considered necessary. Suppose, for instance, the infant were a young man in a genteel station of life, and had been ordered horse exercise by a medical attendant. (a)

(a) Coke says, an infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching and instruction, whereby he may profit himself afterwards," Co. Litt. 172 a. This doctrine was somewhat narrowed in a judgment of Haughton, J., 2 Roll. R. 271. "If an infant is the owner of houses, it is necessary to have them

The result of the cases on both sides of the Atlantic seems to be, that unless the articles are, both as to quality and quantity, such as must be necessaries to any one, the burden of proof lies on the plaintiff to show such a condition of life of the defendant as might raise to the rank of necessaries, things which would otherwise be luxuries; Brooker v. Scott; Wharton v. M'Kenzie; Rainwater v. Durham, 2 Nott & M'Cord, 524; Rundle v. Keeler, 7 Watts, 239; Phelps v. Worcester, 11 New Hamp. 51; Bent v. Manning, 10 Vermont, 225; Grace v. Hale, 2 Humphreys, 27. When this has been shown, the question whether the articles are necessaries is one for the jury, subject, however, in some cases, to the direction of the Court, as, for instance, as was said in Wharton v. M'Kenzie, supra, "Suppose the son of the richest man in the kingdom to have been supplied with diamonds and race-horses, the judge ought to tell the jury that such articles cannot possibly be necessaries." And it would also seem that the articles must be to supply personal wants either for the body or mind; expenditures, therefore, for other purposes, as, for example, for alterations in an infant's real estate, however requisite, can never be considered as necessaries, they being regarded in the same light as articles furnished him for trade, the price of which cannot, as will be presently seen, be recovered as necessaries, however beneficial they may be to the business; Tupper v. Cadwell, 12 Metcalf, 563. And even in cases where

*There are, however, some species of contracts which the law considers it so imprudent on the

[*206]

kept in repair, and yet the contract to repair them will not bind the infant; for no contracts are binding on infants, except such as concern their person." And this rule as to what is a personal necessary has been since recognised. And it had also been held that what is necessary for an infant's wife is necessary for himself; Turner v. Trusley, 1 Str. 168. Contracts by infants for things necessary for their children, bind them on the maxim of "Persona conjuncta æquiparatur interesse proprio." Bac. Max. 67, Ed. 1639.

This doctrine derived a new extension in the late case of Chapple v. Cooper, 13 M. & W. 252. An infant widow was sued for the expenses of her husband's funeral, and was held liable. The reasoning by which the Court of Exchequer arrived at this conclusion is very instructive, and as the judgment delivered by Baron Alderson is a terse thesis on the whole law of contracts by infants, it will form a fitting summary of Mr. Smith's remarks, and a useful code for future reference. "It seems clear that an infant can contract so as to bind himself in those cases where it is necessary for him to have the things for which he contracts; or where the contract is, at the time he makes it, plainly and unequivocally for his benefit. It is with the former class that we are concerned. Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging, and the like. About these there is no doubt. Again, as the proper cultivation of the mind is as expedient as the support of the body, instruction in art, or trade, or intellectual, moral, and religious information may be a necessary also. Again, as man lives in society, the assistance and attendance of others may be a necessary to his well-being. Hence, attendance may be the subject of an infant's contract. Then the classes being established, the subject-matter and extent of the contract may vary according to the state and condition of the infant himself. clothes may be fine or coarse according to his rank; his education may vary according to the station he is to fill; and the medicines will depend on the illness with which he is afflicted, and the extent

His

there can be no doubt that the articles are proper and necessary in themselves, yet as an overplus of goods, otherwise proper, ceases to be a supply of necessaries as to the excess, the jury should be directed to find for no more than is absolutely necessary, unless there is evidence to justify the quantity; Johnson v. Lines, 6 Watts & Serg. 84.